C2007/2658, Transcript of Proceedings [2007] AIRCTrans 280 (12 June 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16956-1

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER REDMOND

C2007/2658 C2007/328

s.120 - Appeal to Full Bench
Appeal by Fletcher, Gerard Francis
(C2007/2658)

SYDNEY

9.34AM, MONDAY, 28 MAY 2007

PN1

MR R MOORE: I appear on behalf of the appellant, Mr Fletcher, and for the cross respondent in the extension of time as granted. Appearing with me is my instructing solicitor, MR BOYLE.

PN2

MR BROMWICH: I appear for the respondent in the appeal and the cross appellant in the extension of time and leave is granted. I am instructed by
MR IRVING of the Australian Government Solicitors’ Office.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you, very well. We intended to proceed on the basis of hearing all argue, including the issue of leave institute the cross appeal out of time unless there’s any argument the parties want to raise as a preliminary issue. We will just hear everything and determine everything. What we will do is mark the appellant’s outline of submissions exhibit F1, and when I say appellant, the appellant in Mr Fletcher’s appeal. The outline of submissions in reply on behalf of Mr Fletcher exhibit 2 and the AFP’s materials exhibit AFP1.

EXHIBIT #F1 APPELLANT’S OUTLINE OF SUBMISSIONS
EXHIBIT #F2 OUTLINE OF SUBMISSIONS IN REPLY
EXHIBIT #AFP 1 AFP MATERIALS

PN4

SENIOR DEPUTY PRESIDENT WATSON: Mr Moore.

PN5

MR MOORE: Thank you, your Honour. Perhaps the best way for proceeding, given that you indicated that the bench will consider all of the matters, is to first of all address on the basis of the appeal brought by my client, Mr Fletcher.
Mr Fletcher, as can be seen, the appeal was brought within time and goes really only to an agitation of the secondary aspect of an unfair dismissal proceeding, if I can put it at that. That is after the finding of unfairness having been made by the Commission, a consideration of what is the appropriate remedy. It is accepted by my client that that movement from finding factually first of all what the matters that gave rise to the termination were, to the exercise of the finding of the unfairness.

PN6

Following those aspects of the case, and we take no issue with the way in which the Commissioner decided, although we say that he viewed the case correctly in that regard, we say where the error occurred is when one takes the finding that the Commissioner made below and in a number of areas. First of all the Commissioner failed to make the primary remedy. And just briefly I don’t think it would be contentious, but after the finding that is made of the unfairness the consideration then moves to the consideration of the primary remedy, that is whether reinstatement is appropriate. It is only where the reinstatement is not appropriate that there is then a secondary consideration, that is a remedy other than the primary remedy.

PN7

Now, what we say in terms of the appeal, recognising this appeal will be determined in accordance with the normal principles applied, and by those I identify there it’s House v The King type of appeal, and if need be I could hand to the Bench in due course a situation where it did arise, a case of Swain v Ramsey Butchery Service. This was an appeal from Commissioner Jones. It was an appeal solely on the basis of remedy and within the decision of the Full Bench as there constituted we would say the relevant principles are set out. Those relevant principles are identified as - - -

PN8

SENIOR DEPUTY PRESIDENT WATSON: Do you have a copy, Mr Moore?

PN9

MR MOORE: I can. I can hand the copies of the decisions to the Bench and my friend. In particular the aspect is on page 2 of that decision at paragraph 8. The Full Bench there recites the nature of the order and the principles that we would say have been applied consistently by this Commission thereafter and identified by way of reference of the approach in the italics, and that is that the item must be some, pointing to summarise that, I’m pointing to a specific error that was made below or generally that one used the decision as a whole. The result one may not be able to be discerned. It’s so far outside what would be expected that it demonstrates error.

PN10

What the Commissioner found below, and if I can just take the Bench to that, it was a great focus in factual matter in these proceedings upon the meeting that actually took place between my client, Mr Fletcher, and a criminal by the name of Michael Hurley. That meeting took place on 14 April 2005 at approximately 9 am and the existence of that meeting, or the occurrence of that meeting, has never really been put in doubt in the proceedings. In fact my client, within 24 hours of that meeting, had made appropriate disclosures, we would say, to those persons that he was required to make disclosures to. Those comprised his immediate supervisor, Mr Hardiman who is identified as the coordinator of Border Sydney.

PN11

He then also put a report in through to the Professional Standards, he also made contact with the other joint investigating body in the operation, the New South Wales Crime Commission, and indeed all of those matters were not in issue. What the Commissioner focused on, though, is a period between 25 November 2005 and the ultimate decision to dismiss on 20 February 2006. Again if I can just without – if I can invite the Full Bench to go in appeal book filed by my client, page 127.

PN12

SENIOR DEPUTY PRESIDENT WATSON: Yes. Just while you’re interrupted allowing us to find that, there’s obviously an issue about this material, or some of it, in the proceedings below. I just want to obtain the view of the parties as to how the material is treated here. Do we need to maintain the appeal book in confidence? Is there any issue about transcript in the appeal?

PN13

MR MOORE: We would say that we had no problem about it being confidence or otherwise. The main application was made by the respondent. So we don’t see why these matters would be contentious, but if they are perhaps my friend can identify if they are going to be.

PN14

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Bromwich?

PN15

MR BROMWICH: Perhaps I could just briefly assist the Full Bench. It’s mainly really to do with the content of the Hurley interview. While it’s true that
Mr Hurley is now deceased Mr Hurley does make references to other people and that material we would seek to have maintained in confidence.

PN16

SENIOR DEPUTY PRESIDENT WATSON: That’s in the supplementary appeal book?

PN17

MR BROMWICH: No, it’s in the main appeal book. It begins at page 150 and runs to almost to the end. It runs to 168. It’s mainly that there are collateral matters in there. It’s mainly our concern in relation to that I think.

PN18

SENIOR DEPUTY PRESIDENT WATSON: And it’s only that material?

PN19

MR BROMWICH: I think everything else becomes dispersive or discusses it in ways that don’t go into – in fact, the concern is really more with material that isn’t central to this case, it’s just that it’s difficult to have a sense of the interview by weeding that out. So in actual facts the pages we’re directly concerned with aren’t such a concern and the fact of this meeting is well know. It’s other matters.

PN20

SENIOR DEPUTY PRESIDENT WATSON: Yes. Why don’t you have another view, Mr Moore. We propose that part of the first appeal book pages 150 to 168 maintain in confidence on the file.

PN21

MR MOORE: That causes no difficulty.

PN22

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you Mr Moore. Yes, now you’ve taken us to 127 of that?

PN23

MR MOORE: Yes. I’m inviting the Full Bench to go to 127 and this letter put in context, I don’t think what I said before is contentious - I think it’s bound by the decision or otherwise agreed between the parties - but Mr Fletcher had been interviewed on two occasions by way of formal reported conversation. There had been an investigation and it’s in the appeal book. A final report had been submitted by Federal Agent Fox in about September 2005. Then Mr Alan Scott, in his capacity as manager Professional Standards, issued this letter to my instructing solicitor, Mr Boyle, who at that time was representing Mr Fletcher and then continued to represent him of course thereafter.

PN24

What this letter comprised was the conclusion of the Professional Standard investigation. In the evidence, and I can take the Full Bench to it if required, in the evidence of Mr Ney, Mr Ney identified that there was in fact a two stage process followed within the Australian Federal Police in terms of an investigative process which he agreed with me was a fact finding process. And then thereafter if a finding was made that the employment was to be in question, considerations by a delegate of the AFP Commissioner, the delegate in this particular case as the matters unfolded became Mr Ney. But if I can just invite, in the correspondence of 25 November, the Full Bench to go forward to page 129 page 3 and perhaps the final two paragraphs.

PN25

This is an issue that is referred to in the correspondence and indeed continued to be agitated subsequent to this letter, and that was what was the initial allegation that was made as against Federal Agent Fletcher. The initial allegation made in May 2005 was that he had engaged in criminal conduct in that he had passed Commonwealth information to the identified person, Mr Hurley. What became clear throughout the investigation that was carried out by the AFP and confirmed during the proceedings in terms of the cross examination of the AFP witnesses was that the view is that that allegation can not be substantiated.

PN26

There was some limits drawn by the witnesses of going further as to whom may have been the source of the leak that had compromised the joint operation between the AFP and the New South Wales Crime Commission. But the clear indication that was given by both Mr Ney and others was that it was not
Mr Fletcher. We say Mr Fletcher then became like a person who had to be considered not in the light of criminal conduct, but in the light of conduct that may have been inconsistent with procedures of the AFP, but which would have required some form of disciplinary action.

PN27

Now, before the actual complaint that was made and appears to have originated with the New South Wales Crime Commission in late May of 2005, the manager of the Sydney office, Federal Agent Gray, had already discussed with Mr Fletcher what would have occurred with him concerning his conduct, albeit conduct short of criminal conduct that was then being investigated. The view that they had reached was that as an appropriate time in the near future Mr Fletcher would be taken off an operational role and moved to a non-operational role within what was known as the FIT team – Financial Investigation and Transactions, I’m told, the FIT team.

PN28

Now, that was in terms of the proceedings below put to Mr Gray and he identified that was his managerial response. I am just going back now to the two final paragraph that I direct the Full Bench to. The penultimate paragraph goes to the substantiation of the allegation concerning the conduct of Mr Fletcher.

PN29

Now, the substantiated finding was the allegation that the actions of your client have brought or were likely to bring discredit to the AFP. Clearly unorthodox actions of your client have the potential –

PN30

That was agreed in cross-examination by Mr Ney in terms of his interpretation of the likelihood:

PN31

- to affect our relationships with the AFP’s partner agencies and have caused our professionalism to be brought into question.

PN32

Now, in terms of that what became clear, we say, in the evidence in the case is the complaint by the New South Wales Crime Commission. The New South Wales Crime Commission also it was identified was informed of this meeting within 24 hours of it occurring. That information appeared to be passed to Mr Stanton who has a capacity of deputy director, one step down from the director of the New South Wales Crime Commission. Then he moves to consider the suitability of the employment. Then critically he determine this in terms of the proceedings:

PN33

I have decided that I will not refer this matter to a delegate of the Commission for a review of your client’s employment suitability.

PN34

And what was identified quite clearly below was a finding such as that would put an end to the matter in terms of any further consideration by a delegate of the Commissioner. Mr Scott in his capacity in Professional Standards had the role to delineate whether it went to a consideration of a disciplinary matter that would be referred back to the superiors below to be handled as a disciplinary matter or taken up the line, if I describe it that way, to look after it as an employment matter where the employment was called into question. So what had arisen on 25 November, we say, is that the AFP had considered everything that it had known about Mr Fletcher from all of the investigations that it had carried out and had concluded that his employment would not be in any way further compromised, that he would in fact be, subject to a number of recommendations, as to how his employment would be continued.

PN35

Indeed commensurate with the decision of Mr Scott there was a lifting of
Mr Fletcher’s suspension that had originally been put on on 25 May when the matter of his criminal conduct first arose. Thereafter what occurred, and I will just take this in short and then come back to it in more detail, the Full Bench will see that at the end of that page on 129:

PN36

A representative from the AFP Sydney office will contact your client shortly to discuss the place and nature of his duties.

PN37

By 19 January that had not occurred. Mr Fletcher had taken in the interim some accrued annual leave. But Mr Boyle on behalf of Mr Fletcher wrote to Mr Scott seeking answers and also challenging certain of the findings, it’s true to say, and really an inquiry as to what was now occurring with his client and in particular I take the Full Bench to 134. Again the penultimate paragraph

PN38

COMMISSIONER REDMOND: 134 did you say?

PN39

MR MOORE: 134, yes Commissioner.

PN40

COMMISSIONER REDMOND: Thank you.

PN41

MR MOORE: And just in terms of that there was a concern, I think, in terms of the delay as to what punitive measures might now be considering against
Mr Fletcher, and Mr Fletcher having the views that those matters had been brought to an end on 25 November. And then Mr Boyle observing as I say in the sentence:

PN42

At the time of writing he has not received the promised further correspondence from the AFP Sydney office and as the entire process has been handled in a most unusual way I am unable to advise him further at this time.

PN43

And in short the matters promised in the 25 November letter had not materialised and concerns were now arising as to whether anything else was going to happen with Mr Fletcher. The comment made there handled in a most unusual way also emerged, we say, from the evidence of Mr Ney because what became identified is that the normal practice would be for a person such as Mr Ney not to be involved in the considerations of Professional Standards. However, prior to 25 November 2005 Mr Ney and Mr Scott had been having various conversations, at least two discussions in the lead up to the 25 November letter and some discussions thereafter.

PN44

Indeed it is in the correspondence that flows from Mr Ney then in answer to
Mr Boyle’s correspondence, and I just note in passing the further correspondence of Mr Boyle dated 24 January. I invite the Full Bench to go forward to 138. There is a letter of 27 January - - -

PN45

SENIOR DEPUTY PRESIDENT LACY: Just before you do that, Mr Moore, in the penultimate paragraph on page 137 ..... substance it says:

PN46

Although my client’s suspension ..... without having a formal response to this letter.

PN47

Has there been some indication that he should return to duties at that time?

PN48

MR MOORE: The only indication I understand of the return to duty, Senior Deputy President, is in terms of the correspondence that had emerged on 25 November.

PN49

SENIOR DEPUTY PRESIDENT LACY: All right. There was nothing else to suggest that he should come back to work at that point in time?

PN50

MR MOORE: On my recollection of the evidence below and the correspondence, no. I think that - - -

PN51

MR BROMWICH: There is contact by Gray.

PN52

MR MOORE: My friend reminds me there is an issue whether it occurs prior to or after there was a contact by Federal Agent Gray as his manager, a telephone call. I think there was a note, I don’t know whether it got into evidence, but it was at least a note that was shown to the parties where Gray had made contact. It may have been in December or January and that the matter was still reviewed. There was no identified positions as such where Mr Fletcher had to report to. So, for example, there was no indication whether he would return to a federal agent in his normal role in the pre-suspension position or whether he would be moving back into that discussed position with Federal Agent Gray or indeed another position.

PN53

On 27 January the two letters that were from Mr Boyle were responded to by
Mr Ney. It’s in that letter for the first time that there is a view expressed that there has been a fundamental breakdown of the employer/employee relationship between the AFP and Mr Fletcher. Can I just, at least it’s in full context, invite the Bench to go to page 140 commencing in that final paragraph:

PN54

In coming to a decision –

PN55

And then continuing over the page, that paragraph and you will see in the final sentence:

PN56

A failure represents a fundamental breakdown of the employer/employee relationship between the AFP and your client.

PN57

Now, in all of the correspondences that had passed and in all of the interviews that had taken place this is the first time where there is an assertion made by the AFP that there had been a fundamental breakdown in the employer/employee relationship between the AFP and Mr Fletcher. What it occurs within, we say in the context, it outlines a concern on the part of Mr Ney that Mr Fletcher has demonstrated a continued inability to accept that in the context of the matter subject to Professional Standards’ report. He has made errors in the performance of his duties or to accept guidance as to how to improve his performance.

PN58

Now, I just emphasise this because in terms of the appeal brought by Mr Fletcher this becomes a relevant matter, we say, in terms of the discretion that was exercised about remedy. Because the Commissioner below actually found that the reason for the termination based on this non-acceptance of counselling and the like was not valid and that even if it was valid it was harsh. And it is noted that the emphasis given by Mr Ney, this failure represents a fundamental breakdown. So in other words if Mr Fletcher was not accepting the right of the employer to discipline him or further counsel him in any way, it was an indication of relationship breakdown. That’s Mr Ney’s view.

PN59

When one goes to the Commissioner’s decision and looks at what his the reason for the termination and whether the termination is valid, the Commissioner below finds it is not valid having regard to, in particular, a document which follows which is Mr Fletcher’s reply dated 8 February 2006, received 13 February 2006 and commencing at 142 of the appeal book. In particular if one goes over to page 144 of the appeal book, the first full paragraph, I think there is a missing in the photocopy. You see “I have”, it should read “I have not rejected”. Mr Fletcher was quite squarely indicating he had not rejected any further formal counselling on the issue and he is prepared to accept such counselling if it is deemed necessary.

PN60

Now, there is cross-examination of Mr Ney about that point below. I can take the Full Bench to it if necessary, but in essence what was suggested to Mr Ney was that Mr Fletcher had been counselled prior to the allegation by Mr Gray and indeed Mr Gray had indicated the managerial response of moving him to a non-operational role and that Mr Fletcher in his correspondence had referred to this counselling, indeed you will see that in the paragraph immediately above. That’s the 25 May 2005 counselling. And the words “if it is deemed necessary” I suggested to Mr Ney were to be read as if the counselling further than the 20 May counselling was required, Mr Fletcher accepted it. But if there was no need he had already been counselled.

PN61

So what he was clearly indicating was that he had not rejected the right of the employer to further counsel him. He was pointing out to the employer that counselling had taken place on 20 May and that Gray had been the author of it. Indeed he would, in the scheme of things, go back and be a person reporting to
Mr Gray and Mr Gray was to be consulted, if we remember the 25 November letter, about what steps were to be taken in terms of the counselling.

PN62

Then there were some concerns expressed by Mr Ney in his cross-examination about the way in which the solicitor had expressed that Mr Fletcher said his solicitor had the right to raise these things. Indeed he had instructed him to put the position as he saw fit and indeed this is what is said, we would say, the final sentence in that paragraph:

PN63

I believe that my solicitor was acting in my best interest to raise these issues, however his correspondence should not have been interpreted in the manner that it suggests. I would refuse any further counselling on my duties.

PN64

And then there’s a further emphasis of those matters going to his employment history. So in terms of the letter of 27 January that effectively asked to show cause Mr Fletcher wrote this letter back indicating quite clearly that he would continue to accept the directions as he had in the period of 34 hours of he describes it as faithful service and it should be said it was accepted below, we say, but save for the Hurley matter arising that service was not service that was inconsistent with the AFP. And one of the key issues that emerged was his awarding of the Australia Day Medallion in 2004 with the commendation from the Commissioner and indeed that, I think, is reproduced in the appeal book at 93.

PN65

Now, we say again and I should just from what I anticipate may be said against us, this is we say an important document in the scheme of things. In terms of the cross-examination of Mr Ney below, Mr Ney agreed with me when I put it to him that these medallions and commendations were not handed out like confetti within the AFP. They were given to persons of quite some standing. And the reason why this becomes important, we say, is that there are certain matters that were raised against Mr Fletcher below related to an operation which was known as Marengo.

PN66

Now, they actually predate any of this issuing of the Australia Day Medallion and we say it quite clearly states the view that the AFP held on
Mr Fletcher as at 26 January 2004 when they issued it to him. Indeed the Commissioner personally says he is aware of the law and the dedication and competence displayed since his employment with the AFP and then there’s the statements concerning his career. Indeed no issue was taken with that in the proceedings. So really we got to a position, we would say, in the proceedings that save for this meeting with Mr Hurley, Mr Fletcher was a person of good standing and a highly regarded senior officer in the AFP.

PN67

He had in the evidence led a number of drug operations at a senior level, had confiscated large quantities of drugs and cash, had been chosen to do those roles with the AFP because of his expertise and had been commended, also not only with that medal but indeed with letters from even overseas enforcement agencies and judges in terms of his role. And so he was a quite competent police officer. Indeed he held, I think on Mr Ney’s admission, he would have to hold a secret or top secret classification in terms of his security clearance and those security clearances were given after perusal by ASIO.

PN68

So this is a person who had access to the highest levels of information in the intelligence community, had worked on joint operations and also operations within the AFP with distinction and who by January 2004 was awarded with the medallion. Despite all that Mr Ney, when he comes to consider the show cause, finally writes to Mr Fletcher the letter which commences at 145 of the appeal book dated 20 February 2006. Again just going over the page, 149, just in the penultimate paragraph again and commencing at the sentence, “As I have previously indicated to you” approximately two-thirds of the way through that paragraph:

PN69

As I have previously indicated to you, I am of the view that your judgment in accepting an invitation to meet with an unidentified person to discuss undisclosed matters is seriously wanting. I am not convinced that you have a genuine appreciation of the serious nature of your failing in this regard. This failure, along with an apparent unwillingness to accept counselling from your employer as to what is best practise, represents a fundamental breakdown of the employer/employee relationship between you and the AFP.

PN70

Now, again note the words “this failure”. It is a failure to have an appreciation of the serious nature of the failings in regard to the meeting:

PN71

Along with an apparent unwillingness to accept counselling from your employer as to what is best.

PN72

Now, quite simply we say that when you read the decision of the Commissioner below he forms the view. That view of Mr Ney is not open on the evidence and would not represent a valid reason for termination. Even if he’s wrong about that the Commissioner below says it would be harsh taking into account the 34 years of service and all of the other attendant matters that go with that service in the AFP. Yet the matter that comes to a denial of the reinstatement is found in the decision and becomes the subject of the appeal. I think in particular we raise paragraph 87 and that’s found in 31 of the appeal book.

PN73

Now, I'll just go back and touch upon the preceding paragraphs in a moment. This is the finding 87 and 88 of what occurs in about the three paragraphs above that results in a denial of the reinstatement. Now, the key thing we come to is this. That there was evidence from Mr Ney that the AFP had lost confidence in Mr Fletcher by 20 February 2006 and that there had been a fundamental breakdown in the relationship. Now, what we would seek to impress upon the Full Bench when you read what is said in the two Ney letters and the Commissioner’s findings on that point in terms of the valid reason and unfairness issue, what you really have from Mr Ney is an assertion of the breakdown based on a specific set of conditions, that is a failure to accept the counselling and a failure to accept that he’s done something wrong.

PN74

You won’t find anything other than Mr Ney’s correspondences of 27 January and 28 February indicating this breakdown. So it’s a quite specific matter that is said to give rise to it and it flows from the 25 November letter through the two letters of the solicitor, through the show cause letter of Mr Ney to Mr Fletcher’s reply and then to the final termination letter. We say you will just not find any other evidence that supports the finding of breakdown of any witness, even Mr Ney because it was Mr Ney who was the delegate of the Commissioner who comes to the conclusion about breakdown. Now, if he’s wrong in terms of it as valid reason one of our submissions is he must be wrong in terms of the reason that one can hold that person out from reinstatement.

PN75

Because prima facie that reason is an invalid reason, but even if it was valid it is harsh. That matter has been addressed, we would say, quite clearly by the Commissioner and found to rest on a matter that is untenable. Then he comes to the Hurley interview and I'll touch on this now. The Hurley interview is an additional matter and I am entitled to give consideration to Mr Ronaldson’s submission that the Hurley interview further adds to the AFP’s already existing view that they have lost any trust and confidence in Mr Fletcher. Now, if we just pause there. What the Hurley interview was raised in that context below was as a matter that would impact upon the discretion as to remedy.

PN76

Now, the Hurley interview is that interview which has already been noticed commences at page 150 of the appeal book. It was given by Mr Hurley on 29 March 2006. Now, that is at a time, of course, prior to the hearing before the Commissioner. The purpose of the meeting, if I can just invite the Bench to go over to 151.

PN77

SENIOR DEPUTY PRESIDENT LACY: Sorry, what was the date again? What date was it?

PN78

MR MOORE: The date of the record of conversation of Mr Hurley was 29 March 2006. Now, the purpose of the meeting appears to be established at question 3 on page 151. Mr Hurley was not placed under caution. The interview appeared to be a request from the DPP – I take that to read the Commonwealth DPP. He was invited to say what he knew about matters of corruption. So that’s a specific reason for the meeting that’s identified to him and then his solicitor,
Mr Hardy, about two-thirds on the page said:

PN79

And he would also like to speak about Mr Fletcher.

PN80

So then over just on page 152 question and answer 10 Mr Hurley identifies there are two different interviews:

PN81

I thought we did one with Mr Fletcher.

PN82

And then there seems to be an agreement at 14 and 15 that they will talk about
Mr Fletcher first. Over the page 153 question and answer 28, Mr Hurley identifies Mr Fletcher is known as an honest, it appears, police officer. There’s a bit of a discourse about the last or one of the times that they’ve run into each other. I think Rocky Montgomery, Mr Fletcher and Mr Hurley had a meeting and Mr Fletcher is noted – this is on top of page 154 – that he’ll give
Mr Hurley “20 fucking years if I catch you”. And then it turns to the specific meeting. If one goes through to 155 question and answer 41:

PN83

So you rang him up and said –

PN84

And then there’s the words indistinct:

PN85

No, I rang him and made an appointment across the road to see him.

PN86

Now, I'll just pause there because Mr Fletcher’s account was he had a voice on the phone who wanted to see him in the cafe opposite the AFP. It was a non threatening call. He assumed it was someone who knew him, but the caller had not identified himself. So question 41, we say, is consistent with Mr Fletcher’s accounts. The matters that are then put against Mr Fletcher in terms of the use of the Hurley material on the question of remedy and also of the extension of time as granted for the cross appeal appears to be those that are set out in 156 question 53 and answer.

PN87

SENIOR DEPUTY PRESIDENT LACY: Was it admitted on that limited basis was it, on the evidence?

PN88

MR MOORE: When you say was it admitted on that limited basis, the actual interview?

PN89

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN90

MR MOORE: The interview was admitted in terms of a supplementary bundle by the respondent and so it was admitted, I think, by consent and so the document speaks for itself. There was no further evidence from Mr Hurley called below, nor was there anything in the nature of what we were seeking to cross-examine. We say the document spoke for itself and we did not see it as being a matter of concern.

PN91

SENIOR DEPUTY PRESIDENT LACY: Yes, I understand that. Was there any debate before the Commissioner about its admissibility on the issue of whether or not the termination of employment was harsh, unjust or unreasonable?

PN92

MR MOORE: There’s a submission made that I believe only - and I might stand corrected by my friend, I’m just acting from memory – there was definitely submission made about its relevance to the question of remedy. I don’t recall it being put as a basis for the denial of the reinstatement which is of course the matter in the appeal, but I'll stand corrected by my friend on that. I just don’t recall it. I would say no on my reading of the transcript.

PN93

MR BROMWICH: It was squarely put on both basis at all stages and I understand admitted without any limitation or restriction of any kind.

PN94

SENIOR DEPUTY PRESIDENT LACY: I only raise it because I thought there was some discussion in one of the earlier cases in the Commission about the admissibility of evidence subsequently ascertained after the event itself that was relied upon for the reason for termination of employment.

PN95

MR MOORE: I think the submission I may recall though, and maybe this is what you’re referring to, Senior Deputy President, was that not one witness called by the AFP attributed any relevance to the Hurley interview. By the submission I put, and I think it’s referred to by the Commissioner, if I can just go back to it, I think it’s only actually paragraph 87 where he recounts it:

PN96

I have taken note of Mr Moore's submission that no AFP witness addressed the added effect of the post-termination Hurley interview.

PN97

What we put below was this:

PN98

If the Hurley interview was of such importance to the AFP one would have acted to change its position.

PN99

And when I say change its position, prior to that 25 November 2005 letter from Mr Scott, in other words if the Hurley interview had been known during the process of the investigation - - -

PN100

SENIOR DEPUTY PRESIDENT LACY: The Hurley interview was after the decision to terminate the employment.

PN101

MR MOORE: That's correct. What we put below was basically this. If you as an employer found out something about an employee later on, and the example that’s put is the Lane and Arrowcrest example which is of von Douusa J. So if you found out that your accountant, for example, was embezzling somewhere after the event, but you had sacked the accountant for a different reason, could you use that to justify the termination? Now, it’s been a long standing position in the common law area that you can.

PN102

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN103

MR MOORE: In the area of unfair dismissal legislation Wheeler and Phillip Morris, for example, his Honour Gray J said you can’t.

PN104

SENIOR DEPUTY PRESIDENT LACY: That's right.

PN105

MR MOORE: You can only sack on the basis of what you know at the time, although the after acquired information may become relevant information on the question of remedy, indeed in whether there would be any remedy at all given “the gravity of the findings made as to the conduct that is discovered subsequent thereto”.

PN106

SENIOR DEPUTY PRESIDENT LACY: Well, the decision of Ross VP did the same thing.

PN107

MR MOORE: Yes. What we were saying is that if you were as an employer to seek to rely on after acquired knowledge that it would have justified the termination you would have had to have shown how that would have affected the way in which he would have investigated. Because there is another important issue, we say, that arises in the statutory sense. If that allegation is going to be made to Mr Fletcher that he knew the identity of the person based upon this interview, that would have had to have been put to him under the criteria that is set out in the legislation we say, even at the initial stage of the finding of unfairness. The fact that it’s acquired afterwards means it doesn’t get put.

PN108

SENIOR DEPUTY PRESIDENT LACY: But it’s still relevant to the question of remedy.

PN109

MR MOORE: It was never put by us below that it was not. And indeed my friend says it’s put on all purposes. We just say it can’t. It couldn’t justify the first question before the Commissioner, if I put it that way, because no AFP witness said it would have affected their decision one way or another. What we said it was quite valid to be considered in the question of remedy. But based on what is actually said there you would not give it, and I think it becomes a question of weight. And I will come back to what the Commissioner actually said about that particular paragraph.

PN110

I just identify the way in which it flowed through up to now, this record of conversation.

PN111

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN112

MR MOORE: So he is asked at 53:

PN113

So you set up a time and –

PN114

I said:

PN115

I'll meet you -

PN116

And the indistinct:

PN117

Anyway, I went and met him and that’s exactly (indistinct).

PN118

Now, that is now, we would say, inconsistent with what comes at 41 because he said:

PN119

I rang him up and made an appointment across the road. I said I'll meet you and I met him.

PN120

And that’s exactly. So the real turning point becomes question 54.

PN121

So he understood that it was you? Yes, I rang and told him.

PN122

Now, the interesting question – rang and told him what? Because up to now between 41 and 53 he rang up and made an appointment to meet across the road. Mr Fletcher said the caller doesn’t identify himself, he doesn’t recognise the voice and I'll come just to another point on that voice issue in a moment in the record of conversation. What you have is the position we understand put that in total reliance on 54 and the words used, a recollection given almost 12 months after the event, clearly identified within the record of conversation Mr Hurley has been hospitalised and is suffering from a terminal illness, Mr Hurley being on the run from the AFP and the New South Wales Crime Commission to his arrest and indeed in some later areas of this correspondence looking for favours in terms of bail, is making that comment.

PN123

Now, in terms of it there is some further discussion, I think, touching upon the timing of the meeting - I will just note these in passing, I don’t think they’re relevant – but at the time of the meeting with Fletcher at question 77 and 79 on page 158, and that’s quite relevant to other events, and then really by about page 159 question 90 and then Mr Hurley’s last comment and then Mr Harlan’s comment about the three questions. So the original reasons for the DPP bringing him forward. That appears to be the end of the discussion about the point. There are some questions at page 160 as to how he knew Mr Fletcher was no longer with the AFP. Mr Hardiman seems to explain that about point 7 on the page and what it appears to be is they wanted Fletcher at the meeting, but he was told that he had left.

PN124

Then at page 162 questions 117 and following they come back to Mr Fletcher. I will just read these out:

PN125

Have you ever received a phone call from Gerry? Never.

PN126

So he’s never contacted you? Never.

PN127

Okay, he’s never rung you at home? Never.

PN128

Through some other? Never, no way.

PN129

Okay. What’s Gerry’s reputation around the street? A hundred per cent honest. I think he’s got everyone up you can talk about I think.

PN130

Now, this is we say important to the area of telephone recognition of the voice because what it establishes is from Fletcher’s point of view, Fletcher does not contact Hurley at all by phone. Fletcher’s evidence is that when he sees Hurley he seems him as police often do when they’re congregating outside of court, when he’s passing Hurley on the street if he notices Hurley with his body guards because of the Hurley donorship of various hotels. So if they bump into each other there’s an exchange of pleasantries and not much more. There is no, shall we say, formal linkage established that Mr Hurley and Mr Fletcher talk every day of the week between each other, or indeed once a week or once a month.

PN131

Mr Fletcher identified in his evidence to the Commissioner, the Commissioner saw his demeanour, we say, when he gave the evidence that he was busy on the day in question, the call came through non-threatening, he thought that it was someone he recognised by voice, a person other than Hurley but not Hurley and that the first time he identifies Hurley is when they make eye contact in the cafe. Mr Fletcher’s conduct post that eye contact, albeit there are issues at trial as to the judgment that should be exercised as to when to leave, is consistent with procedure. In other words if he had made a contact with a criminal and information had passed he was expected to record that and identify it. He didn’t.

PN132

And there is no real criticism, we would say, in the case below on the way in which he acted once he extricated himself from the cafe. The focus is firstly in the case if he stayed too long and there were various evidences below of McDonald was a senior person in the National Crime Commission and long standing AFP officer, indeed had fulfilled the role of the Sydney office manager for the AFP, agreed 100 per cent with Mr Fletcher’s conduct. Mr Ney said he would have acted in a different way, but at the end when pressed in cross-examination said it was a question of judgment for the person in the room.

PN133

So there might have been differences between officers, if I can put it that way, as to how Mr Fletcher should have responded once the contact was made, but there was really no debate, we say, thereafter as to how he should have responded, the contact having been established. And so the matter that we understand that’s put against us in the cross appeal is that those words which I’ve taken the Bench to are consistent and prohibitive enough to establish two things, that Mr Fletcher knew the identity of Hurley prior to the meeting at 9 am on 14 April and secondly on the basis of that knowledge any response that he gave seeking to identify it as a different person was a false statement. In other words Mr Fletcher was lying about the incident.

PN134

The position the Commissioner took to the Hurley interview at page 30 of the appeal book paragraph 84. As noted there and permitted without objection:

PN135

In the circumstances, I have considered that evidence but have given it less weight than if Mr Hurley had been a witness.

PN136

Now, we interpret it to be you have the words and the documents speaking for itself – this is the way we say the Commissioner found – I have seen the witness in the witness box, all of the matters have been put to him, I have observed the demeanour of the witness, I give it less weight as a document with those words in it than the weight I give to the evidence that was given before me. And we say that’s a perfectly valid position to take.

PN137

The taped interview does not satisfy me that the Applicant definitely knew that it had been Mr Hurley who had called him.

PN138

Now, in the way that I categorise what we understand to be the basis of the cross appeal, what we say is it must establish prohibitively two clear facts to the necessary standard. That is did Mr Fletcher know it was Hurley and as a consequence of that finding, has he made false statements to his employer during the investigation? Some reliance appears to be placed on the use by the Commissioner of the word “definitely knew”. It seemed to point to an application of the wrong standard. There’s no issue that in proceedings of this kind, they are civil proceedings, but the strength of proof differs depending on the matter that is sought to be proved.

PN139

The standard normally quoted in shorthand is the Briginshaw standard, that is that it is prohibitive. That the strength of the evidence is sufficient to make out the seriousness of the allegation. The Commissioner, we say, by the use of the word “definitely knew” says he was not convinced, we say, that Mr Fletcher knew that he definitely knew the person was Hurley. If that is right and that is his finding the second issue doesn’t arise because how can he make a false statement about the identity of Hurley if he doesn’t definitely know it is Hurley? And we say that is a proper finding to be made if that was the seriousness of the allegation made below, because there is nothing other than question 54 and its answer that establishes a knowledge of identity.

PN140

The concern that we have go to the second part of the finding and I think we identified that in the submissions to the Bench on the appeal. It does, however, raise the possibility that perhaps he did know. So what we have is a possibility that perhaps, in other words there is nothing the other way that could definitely refute it. In other words it is always possible that perhaps he did know. But we would say this, you could not just deny the remedy of reinstatement on a suspicion or a mere possibility. You would have to weigh up quite prohibitively the time at which the statement was made against all other actions of Mr Fletcher, both in terms of conduct and disclosure to his employer.

PN141

SENIOR DEPUTY PRESIDENT LACY: But the Commissioner was weighing, wasn’t he, the reasonableness of Mr Ney’s view that they had lost confidence with Mr Fletcher and to that end he concluded that it was reasonable for Mr Ney or for the AFP, well they had reasonable basis for believing that there was some dishonesty or untruth in what Mr Fletcher had told him.

PN142

MR MOORE: We would say with respect no. He doesn’t find in that way.

PN143

SENIOR DEPUTY PRESIDENT LACY: Have a look at paragraph 85.

PN144

MR MOORE: Yes. What we say is that does not flow. That is another area, we say, of the Commissioner below, what we say:

PN145

Given the circumstances of the interview (which was freely given by Mr Hurley and was not made under caution) -

PN146

He’s correct about that:

PN147

- I am satisfied that there is a real basis to the AFP's disquiet as to whether the Applicant truly was unaware of the caller.

PN148

That was a position put in submissions. It doesn’t come out of Mr Ney. See, if you look at what Mr Ney’s position is as at 20 February 2006 he holds the views on his knowledge at that time. What he doesn’t have, and this is where we said there is no evidence from anyone in the AFP, saying that the Hurley interview made any difference to them at all. It was a submission that was made from the bar table based on the words appearing in the ROC and seeking to put a particular meaning to the words.

PN149

SENIOR DEPUTY PRESIDENT WATSON: Any difference in terms of reinstatement as distinct from termination?

PN150

MR MOORE: Yes. Sir, what we say is even if you just take the reinstatement basis, if the Commissioner has so positively found that you can’t say definitely that the man knew, in order to deny, in order to really uphold the position of the AFP on the primary finding, that being that they have a valid reason – and let’s just focus on that because that’s really where it would come to. The next question is even if they did know, would it still overcome the harshness of the finding? Because there’s an element there where it appears to be unresolved, but we say resolvable by that paragraph. We would rely on it and say the Commissioner did resolve it because having found that you didn’t definitely know you don’t have the basis that I have sought to construct what knowledge and a conscious untruth.

PN151

If he says he can’t definitely say we say a proper application of the Briginshaw standard to an allegation that someone has told an untruth and is lying is quite a high standard to jump prohibitively. There’s also of course, and I'll just put this as a side, there are statements I think of Wheeler and Phillip Morris is one, just of course people find or people have found to have told untruths in certain parts doesn’t mean that they miss out on their belief. Just because a person is found to have lied there are consequences that might arise in a criminal sense by way of perjury, but it may not make any difference at the end of the day to the belief sought.

PN152

See, if you look at the consideration of the Commissioner, and we’ll put it perhaps as squarely as this, if he rules out any knowledge and ..... in terms of the dealings to justify a validity of the reasons, can you then use that finding to cut out the primary remedy by then making an alternate finding? It does, however, raise the possibility that perhaps he did know, and I'll come specifically to the question that was asked by the Lacy SDP about 85. Now, the question concerning a retired policeman became clear in evidence that it related to a person identified in an interview by Mr Fletcher as either Purnell or Furnell. There is no issue that the name of the person Purnell or Furnell was raised by Mr Fletcher in the interview as to who he thought it might have been.

PN153

There was no question by the AFP who were interviewing him at the time, the investigating officers, as to who Furnell and Purnell was. Mr Fletcher was cross-examined at length about Furnell and Purnell and identified that was the person he was referring to as the possible police officer. Then in later correspondence when he identified that, I think it’s actually identified in the 8 February letter in the matter put against him by Mr Gray, it is somewhat surprisingly when you have a look at the documents that Mr Gray refers to in evidence said he had never read the record of interview that were taken by the AFP of Mr Fletcher.

PN154

Then he quotes specific questions and answers in the final letters. Now, I haven’t gone to the extent of seeing whether they are referred to in the reports, but I just noticed re-reading these cross-examination he says that he did not read any of the record of interview. So unless they’re found specifically in the reports and referenced, that could be the only basis where he finds that. Now, the one thing just filing through, because this is the critical part for our appeal and I'll just addressed it at length, we say that this correctly states the position the Commission ought to be cautious in considering an employer’s claim that they can not work again with a dismissed employee because this might inappropriately frustrate the relief of reinstatement provided by the Act. From memory that statement may appear elsewhere. I think it’s in McLauchlan quite expressly.

PN155

However here I find there is a well founded basis for the AFP’s contention that they irrevocably lost trust and confidence in the appellant.

PN156

And I will just pause there because everything that has gone in terms of evidence relates to a loss of trust and confidence for a specific reason, an unwillingness to accept that his interview may have been, or his attendance with Mr Hurley, may have brought them into disrepute and that he might have to be counselled about it. And now we’ve got irrevocably lost trust and confidence. We say that can’t hold in terms of all the evidence that was before the Commissioner below.

PN157

SENIOR DEPUTY PRESIDENT LACY: That relates back to his finding at 85, does it?

PN158

MR MOORE: That’s correct.

PN159

SENIOR DEPUTY PRESIDENT WATSON: And there are three elements to that, are there not? The Hurley interview, what is said to be the change of the story and in the possibility of the retired policeman and the change in the reasons for remaining to talk to Hurley.

PN160

MR MOORE: Yes. What I’m saying is in terms of this question of change of story, we say it’s a question of how one interprets the evidence. But there is a clear identification of, as I say, in the interviews Furnell and Purnell and he was examined at length below and identified that was the person he was referring to as the retired police officer. There was a claim that it was then made - - -

PN161

SENIOR DEPUTY PRESIDENT WATSON: I’m sorry, so you’re saying that at some earlier point in the process he identified Purnell or Furnell?

PN162

MR MOORE: In the context of the record of interviews which preceded the report and the final report. See, what’s come about with this, if you have a look at it, is in the sequence of events when Professional Standards had hold of it up to
25 November, they don’t raise this matter of any inconsistency in the answer. The question of the inconsistency in the answer we say flows from the correspondence between Mr Ney and Mr Fletcher because Mr Fletcher, I think – just bear with me a moment.

PN163

SENIOR DEPUTY PRESIDENT LACY: 147 on page 143 in the second full paragraph down, Mr Fletcher’s minute to Mr Ney.

PN164

MR MOORE: 143 I’ve just got back now. Which part of 143?

PN165

SENIOR DEPUTY PRESIDENT LACY: The second full paragraph down, top of the page.

PN166

MR MOORE: In our appeal book is it?

PN167

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN168

MR MOORE: Second full paragraph down, sorry yes. Now, in terms of that’s where I thought where I was and I thank the Bench for its assistance there. That is in the actual correspondence that falls between the Ney correspondence. In terms of the supplementary appeal book the identification of the Furnell, Purnell person is on page 84.

PN169

SENIOR DEPUTY PRESIDENT WATSON: 84?

PN170

MR MOORE: Yes. Page 84 question 44 answer 44 of the supplementary appeal book. That’s in the first of the recorded interviews by Fletcher.

PN171

SENIOR DEPUTY PRESIDENT WATSON: It’s March 2005?

PN172

MR MOORE: Yes.

PN173

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN174

MR MOORE: And there was cross-examination of him on that point below. You get the response back as to the meeting of a police officer 147 in Mr Ney’s letter.

PN175

SENIOR DEPUTY PRESIDENT WATSON: You say it’s the same thing?

PN176

MR MOORE: Yes.

PN177

SENIOR DEPUTY PRESIDENT WATSON: Former police officer ......

PN178

MR MOORE: Now, it talks about where it runs through. What we say is that in terms of the cross examination below what became clear is that the person in
Mr Fletcher’s mind, when he writes to Mr Ney he talks about the police officer, he identified them in the first meeting, he doesn’t identify it in the report because by that stage he knows the person is Hurley. See, what’s put against him in the 15th or 14 April report is he doesn’t identify.

PN179

You do not refer to any belief that the person you were meeting with was a former police officer.

PN180

The position, we say, is by that stage he knows the person is Hurley. It’s not relevant to as to who he thought it was. Whoever he thought it was, it turned out to be the wrong person. What he does identify is who he has met. Then when he’s ask who did you think it was he said well, non threatening and no one follows it up with him in the interview and is pounced upon, we say, at the end of the day about ..... former police officer. The substance of the position that Mr Fletcher was putting was the person was a person he thought was someone other than Hurley and when identified by Hurley, identified by him to be Hurley, the identity of who he thought it was appears to become irrelevant until the final termination.

PN181

SENIOR DEPUTY PRESIDENT WATSON: And what’s the situation with the reasons for remaining to talk?

PN182

MR MOORE: I’m sorry?

PN183

SENIOR DEPUTY PRESIDENT WATSON: Again going back to paragraph 85 of the Commissioner’s reasons, the change in the reasons for remaining ..... the evidence in relation to that.

PN184

MR MOORE: This is in acceptance of the position that you follow through what Mr Ney says.

PN185

In 19 April you don’t identify it’s a police officer and none of your subsequent correspondences you had.

PN186

No one focuses on, he identifies as I put there, the Purnell Furnell in about the first two or three pages of the first interview following his suspension, who he thought it was. Then he comes back on 8 February and says well I thought I was meeting with a retired police officer, he was within the range of the possibilities, I thought it could have been. But I think he actually puts a percentage in the
cross-examination. He says I think I only viewed it as being 10 or 20 per cent chance of it being him. What is quite clear is at no time does he say he ever expected the person to be Hurley.

PN187

And indeed if we have a look at his conduct pre, when he was put into the
co-ordinator’s position of his immediate superior, Mr Hardiman, as soon as being briefed on matters relating to ..... he asked to be removed from it. You see, the big missing piece of all of this if one looks at it is Mr Fletcher in the February wants to be removed from any involvement with Mr Hurley and that’s acceded to by the AFP. Even if Mr Fletcher had it identified to him that the person who had contacted him on 13 April was Hurley, a meeting involving Mr Fletcher would have not been precluded if he had followed AFP guidelines.

PN188

In other words they would have set up surveillance, they would have perhaps sent someone into a position to observe the meeting, indeed Mr Fletcher himself could have gone wired up. So there is nothing that drives him to hide the Hurley interview or to hide the Hurley contact. What happens then immediately after is everything consistent with a contact which is unknown. Indeed there would have been nothing sinister or wrong in meeting with Hurley if he had known it was Hurley. There would have been no issue in the AFP for him identifying to a superior Hurley had contacted him, wanted a meeting, wanted to pass information and necessary surveillance being instituted.

PN189

Now, what really has never been explained from the AFP view, we say, is how if Mr Fletcher was so adamant to be removed in February from contact with Hurley or knowledge of even Hurley’s role in a joint operation, why when he later identified it was Hurley on their version he didn’t just quite simply do the same thing again? Because he could have went ahead and met Mr Hurley. See, it’s that area, we say, that gives credence to Mr Fletcher’s statements. Why would he meet with Hurley and seek to disguise it from the AFP when all knowledge of Hurley’s operations after that time has been brought to the attention of the AFP and he has been sought to be removed from him?

PN190

And then all of his actions subsequently, of telling the Professional Standards, telling his superiors, telling the New South Wales Crime Commission, is completely at one with his obligations to the AFP. We say that the quantum of that evidence is such that it just doesn’t, we say, bear fruit to argue on that basis of a one question and answer that he knew the identity. Indeed what you might be dealing with is two recollections of persons, one given right on top of the event – that’s Mr Fletcher’s – one given some 12 months down the track. Mr Hurley might 12 months down the track believe he identified who he was.

PN191

There is nothing that clearly indicates he did. Indeed even at the most basic view, and remembering we’re considering AFP officers and investigators, if you got an answer he told you and you were at this stage getting other words that seemed to be mixed up because Mr Hurley seems to be jumbling up sequences of events and the like. You say now, okay, let’s be clear on this conversation, what did you say to him? What did he say to you? All you’ve got is yes, he knew it was me, or words to that effect. Let’s go back.

PN192

Yes, I rang and told him.

PN193

In answer to a question.

PN194

So he understood that it was you? Yes, I rang and told him.

PN195

Told him what? And is the “rang” and “told him” quite distinct? In other words I rang and made an appointment and then I told him the information which has been recounted in the other part of the conversation? There is no clear delineation in terms of the sequence of the conversation. Now, what we say is if that’s the totality of the evidence it raises a possibility, I suppose if one puts it in that regard, who those words raise a possibility that he might have been told. That perhaps if he’d known is the second qualification. If someone had come to the view look, it’s a possibility that he knew, but they don’t add the word “perhaps”. In other words it indicates well, perhaps I might be wrong about that, there may be no possibility.

PN196

SENIOR DEPUTY PRESIDENT LACY: Do you say you can’t draw an inference from a mere possibility?

PN197

MR MOORE: That's right. Well, can I perhaps put it this way, and I tried to catch it. The possibility exists because you would say it’s possible that it were. The question now is having raised the mere possibility does it satisfy the requisite standard to the level that one would require it to have the strength to be convinced in the Briginshaw and Briginshaw sense. And we would say it would not. We say that is the right way of categorising it. There is non basis for the denial of the primary remedy. You’ve got all the other factors that would normally move towards it. A long serving employee with a record that appears to be exemplary, exemplary right up until this event. Conduct post the event consistent with all of the training.

PN198

If he had done something wrong why be so open about disclosing it? Why attempt to contact the other party of the joint operation who knew Mr Standen? When the evidence is looked at he knew Mr Standen as a person within law enforcement for many years. He mete directly with Standen and told him there was a problem.

PN199

SENIOR DEPUTY PRESIDENT LACY: Did any of the other witnesses, other than Mr Ney, suggest that there was some reason to doubt Mr Fletcher’s trustworthy or suggest they’d lost confidence in him or couldn’t work for him or anything like that?

PN200

MR MOORE: No. Indeed if you look at it in just the way the process is described it would not be a role of any other person other than Mr Ney.

PN201

SENIOR DEPUTY PRESIDENT LACY: Or perhaps ..... the person who would be his immediate superior, who would that be?

PN202

MR MOORE: The only person more superior than Mr Ney would be the Commissioner himself.

PN203

SENIOR DEPUTY PRESIDENT LACY: If Mr Fletcher was reinstated who would be his immediate supervisor?

PN204

MR MOORE: Who would be the immediate reporting?

PN205

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN206

MR MOORE: Mr Gray, in the Sydney office.

PN207

SENIOR DEPUTY PRESIDENT LACY: He gave evidence?

PN208

MR MOORE: He did. He made an indication that the carrying out of the directive by Mr Scott for finding him a role may be difficult in terms of the parameters, but he anticipated that was something that would have to be discussed as to what he could or could not do. But I think it would be correct to say in
Mr Gray’s own mind, with all the allegation of the criminal conduct dropping away, that is the original basis for the suspension, he himself had no difficulty in replacement of him in the role that he had envisaged in May of 2005 but said that may now be coloured by what had actually been decided by Mr Scott.

PN209

But what it appears on the evidence is that process between he and others never reached a finality because of the decisions taken by Mr Ney. I think to give
Mr Gray his full context in his evidence said that if he were going to move him from an operational role to a non operational role and then take him out of a non operational role like the FIT team, there would be few jobs that would actually fit Mr Fletcher’s ability to be allocated. But he himself, I think when I cross-examined him, conceded that from a managerial point of view short of the allegations against him that has resulted in the suspension, he thought movement to the FIT team would have been appropriate and indeed save for the matters arising that would have been the position he would have occupied.

PN210

There was going to be a change within the Sydney branch between team leaders. Mr Fletcher held a team leader’s position at that stage. They were going to take him out of the team leader’s position, put someone else in that and use
Mr Fletcher’s skill in a non operational FIT role. Indeed Mr Gray was prepared to await an appropriate time for that to happen as part of the general change. In other words it wasn’t going to be highlighted that this was related to any disobeyance and a specific punitive matter, it was to be addressed in general reorganisation. In fact Mr Gray, indeed the AFP, one considers they had knowledge of the matters on 15 April through to 25 May took no steps to remove Mr Fletcher from any operational role. He continued to be the team leader.

PN211

The only persons that removed him, and it comes out on the evidence, is when the complaints were received and that complaint originated with the New South Wales Crime Commission. In Mr Ney’s evidence, if we just find it, I put this to Mr Ney and it’s at page 60 of the appeal book commencing at PN2747. And just by way of explanation, Operation Mocha appears to be the way in which is described within the New South Wales Crime Commission. It’s the same operation which is elsewhere in the transcript described as Operation Rhodium. And so their joint operation was Mocha/Rhodium.

PN212

But Operation Mocha became an embarrassment in part to the New South Wales Crime Commission, did it not? It did.

PN213

They missed Hurley? That’s right.

PN214

They missed Mara? I understand they – well yes, he’s departed.

PN215

Subsequently there were allegations made about they lost seven kilos of cocaine? Correct.

PN216

And then Mr Ney was able to identify that the persons who had actually made the complaint about Mr Fletcher was the New South Wales Crime Commission and that’s at the bottom of page 65 PN2824.

PN217

I think it was a complaint from the New South Wales Crime Commission. Do you know when the complaint was received? When Mara and Hurley disappeared.

PN218

And then it’s very important in the context of this -

PN219

This is PN2828:

PN220

- it’s very important in the context of this, the New South Wales Crime Commission had this information from, let’s put it this way, 15 April 2005. Are you saying they made no complaint until after they failed in the arrest of Mara and Hurley? I don’t know whether it was after or before. I suspect it was after. Then it became clear it was after.

PN221

SENIOR DEPUTY PRESIDENT LACY: Was the cause of that complaint and suspicion that Mr Fletcher had tipped of Mr Hurley?

PN222

MR MOORE: That’s it. The matter that really, it is clearly identified, he told Standen of the New South Wales Crime Commission. Indeed when it’s looked at the two people who met with the Commissioner about 25 May was Standen and Bradley, the two most senior persons within the New South Wales Crime Commission. And so at a meeting with the AFP Commissioner after the operation had gone bad the New South Wales Crime Commission at both the director and deputy director level complained about Mr Fletcher in the initiation of the proceedings of investigation and suspension arose.

PN223

COMMISSIONER REDMOND: Do you think they were embarrassed do you, Mr Moore?

PN224

MR MOORE: That was the inference we sought to be drawn below and everything seemed to be pointing that way. Indeed just following the point that the Commissioner has raised, I take it that the Bench has seen the two matters at 169 and 170 of our appeal book which is the direction to furnish information given to our client? On 25 May. They are the allegations that were made and received.

PN225

Confidential information has been provided to Michael Hurley contrary to the Crimes Act and you have released the confidential information to Hurley contrary to the Crimes Act.

PN226

SENIOR DEPUTY PRESIDENT WATSON: What are the two orders issued? Why were there two orders issued a month apart?

PN227

MR MOORE: They seemed to issue a direction each time when an interview is held and there were two interviews held. So the person that issues the direction is Mr Fox and Mr Fox was the senior person on the investigation. You see his final report and interim report contained within the appeal book commencing at page 104. What’s quite clear as well is that hit was known, we say, from a very early stage by the AFP and also the New South Wales Crime Commission that there had been no leak that had occurred immediately after the Fletcher interview with Hurley or Fletcher meeting with Hurley.

PN228

If I can just ask the Bench to go to 110 of the appeal book, third paragraph there commencing with all of the capitals, PRSITS.

PN229

..... Rhodium and identified Hurley having a conversation on 20 April 2005 with other targets of the operation during which they continued to discuss pending importation. This conversation indicated that Hurley was unaware of roady ..... operations had Fletcher provided information to Hurley during the meeting on 14 April 2005 it is likely that Hurley would not have made the comments thereby implicating him further in the criminality.

PN230

Now, we say is that information was at least available to the AFP because it was set up in January, on the evidence, 2005 that there was a risk of compromise in the operation even at that stage and that through their monitoring they had identified no change in conduct of Hurley post the meeting with Mr Fletcher. Though one can not point to direct evidence it would be if they were cooperating with the New South Wales Crimes Commission it would be unusual conduct for them not to have identified or for the New South Wales Crime Commission to have access to those monitorings and advices.

PN231

So what we say is that in itself points to the fact that as stated previously Rhodium, although having a suspicion of corruption at the start, that puts it in January 2005 time frame, appeared to be progressing as suspected with no evidence to indicate it had been compromised. And yet if you take that, that’s at 20 April. On 25 May when the thing was on in the colloquial belly up and things have gone missing, including the two primary targets, there’s a complaint then made concerning the conduct of Mr Fletcher which by 20 April the operation was still continuing and has not been curtailed with no indication of compromise by anyone.

PN232

So the other matter I should just point out that’s in the report of Mr Fletcher he actually identifies Mr Hurley has told him that he is leaving. He has a few matters to clear up and then he will be leaving. So there is a quite clear indication to the New South Wales Crime Commission that despite whatever other information has passed between Mr Fletcher and Mr Hurley, one of which is information that once he finishes what he needs to do he will be leaving. Indeed the Commission asked a question as to whether that was information that would be viewed to be important and the answer from the AFP person was yes.

PN233

It just appears fortuitous that at times there’s difficulties for the two joint bodies. Mr Fletcher finds himself on these charges of passing information that’s criminal conduct but then becomes progressively watered down. They’re just acting in a way inconsistent with the guidelines. Indeed the person responsible within the Professional Standards of the AFP concluding if Mr Ney’s evidence is accepted in consultation with Mr Ney that there’s a decision that he will not refer the matter to a delegate of the Commission for a review of the client’s employment suitability. In other words we move from a conduct of criminal disclosure, a confidential Commonwealth information to one where a report is written on 25 November there is no action even prejudicial to the employment contemplated save for movement to a different role, a non operational area.

PN234

SENIOR DEPUTY PRESIDENT WATSON: Mr Moore, can I take you back in the Commission’s paragraph 85, the three possible basis of untruthfulness, one whether around Mr Fletcher knew he was meeting Hurley, secondly the change in the story of the five policemen and the third being the change in the reasons to remain to talk.

PN235

MR MOORE: Yes.

PN236

SENIOR DEPUTY PRESIDENT WATSON: I don’t detect any reference to that in Mr Ney’s letter of notice, in effect, or letter indicating potential termination. I do note paragraphs 539 to 11, that last issue, the change in the reasons to remain to talk raised at least in submission by the AFP.

PN237

MR MOORE: Yes.

PN238

SENIOR DEPUTY PRESIDENT WATSON: What was the evidence in relation to that allegation?

PN239

MR MOORE: The evidence, if one goes to the supplementary ..... at question 217.

PN240

SENIOR DEPUTY PRESIDENT WATSON: Sorry?

PN241

SENIOR DEPUTY PRESIDENT LACY: What was is that?

PN242

MR MOORE: In the supplementary appeal book filed on behalf of the cross appellant.

PN243

SENIOR DEPUTY PRESIDENT WATSON: Page 108?

PN244

MR MOORE: Page 108 question and answer 217. This is in the first interview of 25 May 2005 and he’s asked specifically:

PN245

Why did you not turn around and walk out.

PN246

Mr Fletcher says:

PN247

It hadn’t entered my mind. I always thought I had to..... print it up, tell the truth as it is. When I saw him there I thought I must admit, what went through my mind I don’t want to say on tape, but I thought basically shit, but I’m here now, I'll see what he wants. That’s it.

PN248

And then over on the question and answer 219:

PN249

No, I'll just get on with it, see what he wants, come back here and report it.

PN250

And then just paraphrasing at 220, he’s saying good, so let’s just get on with it, I don’t walk away from criminals. Now, if you just take it that’s the first statements that are made by Mr Fletcher concerning his role. I think in terms of where inconsistency was pointed to I think there was then a response that
Mr Fletcher gave in about September I think it was which is in between when I think there was a draft report issued to him and the final report from the investigating officer, Fox. There’s a recording just in terms of that, it’s probably the most convenient place to find it in the appeal book filed by the appellant, 108.

PN251

There is then a reference made to the interview on 20 June 2005, though that may be a misprint. It may in fact be 26 June 2005. In that interview when asked why he didn’t walk away from the meeting with Hurley he stated it would have wrecked everything with the operation. This is going to the area of tip off that was discussed below. This became an area of the judgment factor.

PN252

SENIOR DEPUTY PRESIDENT WATSON: Sorry, that document is the final report of the Professional Standards’ investigation.

PN253

MR MOORE: So what you had between the two interviews on 25 May he had said the basic paragraph or from 217 through to 220. He then, in his interview in June he’s asked the question, he said it would have wrecked everything with the operation. Now, that’s got to be put in context as well. Fletcher knew Hurley was a target. Fletcher says his rationale is if he just turned and left it could be viewed as tip off – this is just paraphrasing the generality of the evidence. But I think really if one looks at the evidence he gives what happens is he’s asked these questions all the time as to why he acted in a particular way. The closest you will probably get to is the first recollection on 25 May.

PN254

He’s asked further times he’s engaging in what most of us like to say and do, and that is he’s trying to rationale the way in which you out doing things. Now, the key things about it, it is happening in real time, this event. Now, I just take it from Mr Fletcher’s perspective, what happens is he’s going to a meeting that he thinks is a meeting unrelated to work, a non threatening meeting of someone who has just contacted him to see him in a coffee lounge straight opposite the AFP headquarters. He walks into the lounge, he sees Hurley. He knows himself Hurley is the subject of a joint operation. He knows that from February because he talks to Hardiman and Gray about being released from it, of having any knowledge of what’s going on.

PN255

He now decides to engage in rather than walk away. His reason as stated why he didn’t walk away, it would have wrecked everything with the operation. In other words for Mr Fletcher to have just turned and walked away from Hurley of itself may have indicated to Hurley that Fletcher doesn’t want to be seen with him for some reason.

PN256

SENIOR DEPUTY PRESIDENT LACY: The reason I’m here now, I'll see what he wants, isn’t necessarily inconsistent with the discretion or the view that it would have wrecked everything?

PN257

MR MOORE: That’s correct. See, what we would say consistently goes on with Mr Fletcher is he’s recorded in two interviews and asked questions about what his responses and all are. And then he is asked to show cause at various stages and so he identifies what his thought process is. Now, people do rationalise their conduct. And he was taken to it in a minutiae in the cross-examination. As much as at the same time you’re seeing this person and reacting. Indeed to be fair to him, it’s almost to some degree automatic. He is a 34 year service police officer, but even if we take the most recent part of his service dealing with quite complex drug matters, heading up teams, and I think in one point in his examination backed up by Mr McDonald at times the “trading just sets in” and you act on it automatically.

PN258

Then if someone says why did you do that, you’re there at the end of the day trying to think why you act in the way that you do. Mr Ney was asked in chief, and I’m just seeing whether I can find it, he actually agrees that it’s a question of judgment. Yes, if I can just invite the Bench to go, I think it starts at the bottom of page 70 of the appeal book. Probably if we started at PN2887, this was putting to Mr Ney the two concerns he had.

PN259

He didn’t know it was Hurley at the time he walked into the coffee lounge. I have a concern that he continued the meeting after becoming aware it was Hurley, that’s right.

PN260

I just want to be fair in case I’ve taken the note down wrong, but I think there were three propositions put to you. It was a chance meeting, Hurley was a source of valuable information, there was a risk of a tip off? That’s right.

PN261

I’ve noted down that one of the answers was the simple view was to extract himself as soon as he could? That’s right.

PN262

And that ranges across the spectrum, does’ tit, in terms of his judgement? That’s right.

PN263

Ranging from simply turning around and walking out to engaging and cutting the conversation as short as possible, being satisfied that it in itself was not presenting a risk to the organisation? That’s right.

PN264

That’s a question of judgment at the end of the day and only Mr Fletcher can exercise in real time? That’s right.

PN265

But of which yourself, Mr McDonald, the investigators can make up their own view with the benefit of sitting down and considering how each of them any have acted? That’s correct.

PN266

Now, you understood there was a concern with processes to how the conclusion had been reached and we move on to another point. But quite simply in that short passage Mr Ney had identified – he had some 20 years service including in operational areas – and agree to each of those specific propositions, the most important we say is the one at 2893:

PN267

That’s a question of judgment at the end of the day that only Mr Fletcher can exercise in real time? That’s correct.

PN268

And what he’s now being asked, we say successively, in the interview and correspondence is to explain how he exercised that judgement. We say that the closest you’d probably get to it if you’ve just been suspended, called in for an interview, is those passages that we took the Full Bench to on 25 May. They’re the inconsistencies that were sought to be brought home to. In other words each time he’s been asked to explain his conduct and why he acted in the way of remaining with Mr Hurley he seeks to rationalise it and explain it in terms of what’s going on. In the knowledge that it should be after the second conversation and perhaps even to the correspondences where he asked the comment, when he knows the view that the AFP takes of this.

PN269

That is that they consider he shouldn’t be there and he should have extricated himself earlier. He’s saying well, I don’t agree that’s the way I should have operated. So it’s a question of judgement rather than operational parameters.
Mr McDonald, as I say, he was the immediate, or one of the immediate, managers of Mr Fletcher and indeed had operated at the team level and saw nothing wrong in the conduct. In fact he did everything right. I don’t know whether it’s in the, I'll have a look and see if it’s in the appeal book filed by the AFP in terms of the transcript, but at one point I asked Mr McDonald how long have police officers and criminals been coming into contact with one another and Mr McDonald says probably from the start of the police force.

PN270

In other words Mr McDonald found nothing unusual. You’re wandering about doing your business, particularly if you frequent haunts or locations where criminals congregate such as courts, hotels and the like. Sooner or later you’ll bump into someone and sooner or later you’ll have this type of meeting. Having had this type of meeting it’s a question of what you do with it. Now, the difference of opinion between, if I can just put it perhaps it’s a bad phrase, but between old school and new school, if I can put it that way, is what is viewed to be the most important and it appears to come down to this. Old school people like
Mr McDonald and Mr Fletcher see that the gaining of information is more important than the possibility of exposure to compromise, if I can put it in that regard.

PN271

Mr Ney, without labouring the point, when he’s asked questions in chief he’s asked this question about what’s more important and his view of the world I think you can find in page 51 of the appeal book. He’s asked at PN2644, in fact perhaps I should go a little bit higher. You’ll see there in probably about 2641 if I can take you to the aspect of the risk of tipping off and asking:

PN272

Your view is of the risk of tipping off by leaving a meeting compared to the risk of tipping off by remaining and having a meeting of 40 minutes duration? Can you comment on that?

PN273

And you will see Mr Ney’s response to that. He’s asked a question about a pre-arranged meeting, not knowing it was Mr Hurley:

PN274

How would you suggest as a matter of on the spot decision making, you could probably extricate yourself from the situation?

PN275

And he gives an explanation of that. Then you get down to the questions towards the bottom of the page, PN2644:

PN276

What is your view as to what should happen? Most definitely left the meeting.

PN277

That is not withstanding the risk of a tip off? Not withstanding the risk of a tip off.

PN278

Why do you say that? Because there’s a lot more that hangs on the reputation of the organisation in terms of its relationships with other agencies, both domestically and internationally, than one job that happens to be underway.

PN279

Now, this is a job where you’re importing seven kilos of cocaine, a major cocaine operation, surveillance that had been on since January. Mr Ney’s view is you compromise all that, the risk of the tip off is less important and if the whole thing went belly up so be it. It’s important to keep our reputation in tact.

PN280

If a tip off occurs you just have to manage that, is that right? You just have to live with it.

PN281

Does the potential valuable information that Mr Hurley might have been able to provide change your conclusion in any way? No it doesn’t. The reason why it becomes so important to us in terms of an organisation being an information driven organisation, we are driven by relationships with other agencies and the community.

PN282

And Mr McDonald in his evidence, just by way of contrast, said if Mr Hurley was going to say something very important about what was going to happen with some important figure and Mr Fletcher broke it off he could be up on charges the other way. In other words there’s no right way of handling this situation, but it’s better to get the information, find out what he’s got to say and get out as quickly as possible. In terms of that I can give a reference to some of Mr McDonald’s views in the appeal book put forward by the cross appellant, 584 and 585 and it’s the answer that is given by Mr McDonald at PN1509.

PN283

SENIOR DEPUTY PRESIDENT LACY: If this view of Mr Ney properly expresses the policy of the AFP how can Mr Fletcher comfortably go back to work there again?

PN284

MR MOORE: That’s what Mr Ney says in chief. I took you also, Senior Deputy President, of the cross-examination of Mr Ney and that was that passage where he said it’s a matter of judgment, getting out, reporting it. In other words viewed in a proper context meetings such as this ideally should not take place as a matter of policy. I just sort of state the policy of the AFP. Meetings such as the one with Mr Hurley should in all possible cases not occur. They do occur. When they do occur it is left to the judgement, we say, of the individual officer to extract himself as soon as possible and then to act with probity there immediately thereafter by reporting it to professional conduct, by reporting it to other people who need to know.

PN285

What we say is there’s an issue, and Mr Fletcher accepts this, he should not perhaps have got himself into the situation he did. But if you take it in terms of the review that was then carried out the AFP themselves by Mr Scott formed the view that was not enough to dispense with his services. There may be some degree of disciplinary nature about it short of dismissal, but it is not conduct that would normally lead to termination of a person – perhaps qualified by this – of a person of the standing of Mr Fletcher with his history and everything else.

PN286

I suppose there may be a judgment call. I don’t know, we never examined at length. If you had a rookie out there who behaved in this way would they have been given counselling and training to make sure he wouldn’t do it again? If you had someone who had 10 to 20 years service who did it would the AFP act in the same way they did Mr Fletcher? All that you know is from the assessment carried out by both Mr Ney and Mr Scott leading to the 25 November letter. He’s taking account of all of Mr Fletcher’s service history, all of his prior conduct and behaviours. It was not felt to warrant termination.

PN287

The only thing that gave rise to any possible aspect of termination as at
20 February was a view that Mr Ney had developed, erroneously on the Commissioner’s view below, that Mr Fletcher was not accepting counselling or not accepting any fault. And that’s found to be invalid. Now, all that we say is when you look at it all overall, you put it in context, you look at the specific findings that are made on the primary reason, why would it be that this person is denied the primary remedy? And it can’t be as simple as we point out. It’s not in the public interest to accept reservedly or unqualifiedly that just because the AFP says they have a problem and they must have total probity and transparency, how would you ever prove he should be reinstated as a police officer with the AFP?

PN288

All the AFP could say is it’s in the public interest that we have faith in our police officers and we don’t have faith in you. The Commissioner was right to say it has to be strenuously tested. What we say is that when you apply the test to this you can’t find a satisfaction to the standard that is required to deny the primary remedy. The end result if you look at the contrasting point it I think in the submission we first made in writing, public interest is not particularly served by dispensing of a 34 year service police officer who has acquitted himself in the manner as Mr Fletcher has throughout his career for what is put to be an error of judgment accepted by him that may have exposed him to personal risk in terms of his safety.

PN289

But he accepts the counselling, he is removed from an operational role and is able to continue to contribute. And that’s the view that Professional Standards take of him prior to Mr Ney becoming involved and saying the only reason I am now calling into question your continuing relationship with us is that you don’t appear to accept the validity of the complaints. He says well, and I put it in paraphrase terms, we have a difference about the judgement I exercised, but you’re the boss. You want to counsel me, you counsel me. I will act consistent as I have in my career to date and we get on with things. There’s nothing in his record that shows him to be a disobedient officer, otherwise he would have a listing as long as his arm of matters that have caused previously disciplinary reasons.

PN290

There is none of that. Just bear with me a moment. The only other matter may best wait until the reply to what might be said by the cross appellant is in relation there’s an aspect that’s raised about security clearances and the like. I can either deal with that now or deal with that later. It’s an issue that’s raised in the proceedings below that didn’t appear to have any ultimate effect in terms of proceedings. What it establishes is that if Mr Fletcher goes back his security clearance would be reconsidered and there’s no evidence one way or another as to whether he would maintain a security clearance or would lose it.

PN291

SENIOR DEPUTY PRESIDENT LACY: Considered internally or externally? ......

PN292

MR MOORE: It’s done external by basically in line with ASIO clearance, national clearance. There’s an overall body approach. As I said the evidence appears to be in the role that he had Mr Ney expected he would have a secret or top secret clearance which I understand is one of the highest all operational police officers have to have at least highly protected. There’s no indication one way or another in the evidence as to whether Mr Fletcher would not have satisfied and maintained his prior security clearance or at least would not have been assessed to the level of highly protected. And if he gets highly protected his concern of capacities in terms of an operational officer, albeit he may have some information restricted from him. So his team leader might have it but he would not.

PN293

The only other matter, I suppose, as all matters were to be addressed is this question of leave to extend the time until the appeal by the AFP. As we appreciate the reason the AFP says that it not have any view about the matter 17 days after the decision and having sought level advice about it.

PN294

SENIOR DEPUTY PRESIDENT WATSON: I think on the proposition that they were prepared to live with the outcome provided it didn’t involve reinstatement.

PN295

MR MOORE: Yes. I may have misread. Just let me go to it again. I stand corrected on that. Yes, I stand corrected on that. Bad relying on memory. One should read it perhaps. You’re dealing specifically with point 5 of the application to extend time. Prior to receiving Mr Fletcher’s appeal the AFP had not made any decision to institute an appeal. Now, the only aspect that is sought to be raised is this question about the after acquired information, but really we say it did not depend on what option Mr Fletcher took as to whether the AFP makes an appeal or not. Rules are the rules and they’re there to be followed. If they did not want to make an appeal within 21 days they make no appeal.

PN296

Mr Fletcher could have rolled up at one minute to 4, put his appeal in and he would have been within time. The AFP had lodged an appeal and Mr Fletcher had not. The AFP could have withdrawn the appeal. To try and attribute the conduct to Mr Fletcher that is now the delay, that if Mr Fletcher had been more punctual in filing his appeal within the 21 days the AFP might have filed theirs within the time and if for all of these other events, we say is insufficient to exercise the discretion in terms of the appeal and the extension of the appeal. The principles, I think, they’ve been discussed in this Commission.

PN297

I think indeed in a proceeding headed by your Honour ..... application of Gallow v Dawson. And quite simply we would say that that reason alone would not satisfy the testing of Gallow v Dawson. They would have to point to much greater factors than that in order to justify the test, including the prospects on appeal of succeeding on the point that is raised. Now, we say that there prospects of succeeding on appeal are not great. They have sat on their hands. They filed late. They should not have the discretionary benefit. They are the only submissions we wish to make. I think we make them in short compass in the written submissions and I’m conscious of the time.

PN298

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN299

MR MOORE: Unless there’s anything further I can assist, they are the grounds that we would say justify the reinstatement of Mr Fletcher with an appropriate consequential order.

PN300

SENIOR DEPUTY PRESIDENT WATSON: Very well. And the authorities you’ve relied on, have they been provided?

PN301

MR MOORE: In terms of perhaps it might be we’ve discussed the various matters. I’ve handed up Swain.

PN302

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN303

MR MOORE: In terms of the extension of time point I can hand a copy
of – perhaps if I'll just hand these to the Bench in a bundle.

PN304

SENIOR DEPUTY PRESIDENT WATSON: Yes, okay.

PN305

MR MOORE: In terms of the extension of time point we just refer to Shop Distributive and Allied Employees Association v Country Road Clothing Pty Ltd, a decision of the Full Bench headed by your Honour. In terms of the after acquired knowledge matter, and I think it’s referred to in the submissions filed, a copy of the Australian Meat Holdings v McLauchlan. In terms of two cases really that just go to the question of the standard and onus, being the Briginshaw standard, again a Full Bench decision in Brinks Australia Pty Ltd and to much the same effect the decision in Hassan v Nestle Dairy Products concerning the onus and the standard of proof.

PN306

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN307

MR MOORE: As I say, they can be handed to the Commission in a bundle of documents.

PN308

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.

PN309

MR MOORE: If you just bear with me, I'll make sure that we don’t .....

PN310

SENIOR DEPUTY PRESIDENT WATSON: Thank you very much.

PN311

MR MOORE: And I think we have touched upon all the relevant points in the McLauchlan matter. It goes to the after acquired knowledge and the like. They are the cases upon which we are relying on.

PN312

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN313

COMMISSIONER REDMOND: Mr Moore, the Swain decision.

PN314

MR MOORE: Yes?

PN315

COMMISSIONER REDMOND: Is that the decision that ultimately led on to the Blackadder?

PN316

MR MOORE: I don’t know. I believe it is.

PN317

COMMISSIONER REDMOND: Yes, thank you.

PN318

MR MOORE: I believe it is because I think it makes reference there
Mr Blackadder gave evidence in that case.

PN319

COMMISSIONER REDMOND: I think so, yes. I just wonder you always raise it.

PN320

MR MOORE: Well, it seemed to be rather important, your Honour, in this one. But yes, there seems to be a history with that one that you and I are very well aware of. I took it when I handed it up the discourse between yourself, Commissioner, and the Senior Deputy President that it had something to do with the case I handed up.

PN321

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN322

MR MOORE: I have nothing further.

PN323

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Moore. Yes,
Mr Bromwich.

PN324

MR BROMWICH: I face a few difficulties in the sense that the case I come to meet today has moved on somewhat from the case that was apparent on the submissions and indeed has involved a much more wide ranging, implicit at least, challenge to factual findings by the Commissioner below and I will need to address some of those as best I can. I might just deal with a few matters that have been asserted that are perhaps more shortly or correctly dealt with and then go to the more detailed matters following on from that. An example of some of the things that I wasn’t perhaps expecting to meet is the suggestion, for example, that Mr McDonald had given 100 per cent endorsement to what it was that the appellant had done on this occasion, whereas paragraph 51 of the Commissioner’s decision makes it clear that that is not right.

PN325

And in particular Mr McDonald agreed that if a police officer was telephoned by somebody seeking to arrange a meeting the officer ought to ascertain the identity of the caller and that it wasn’t good practice to meet with someone alone and not knowing who they were to meet is not good practice. But that’s only in one sense, it’s just that at various points things are made that seem to challenge in fact both the evidence and indeed the factual findings of the Commissioner below. I should apologise up front for my voice. I seem to have developed something. Usually my voice is a bit easier on the ear than it is today. I do apologise for that.

PN326

I need, I suppose, because of the way it’s been brought today to develop something of a theme as to how the matters ended up with Assistant Commissioner Ney making the decision that he did. The suggestion effectively made is to set up something of a straw man in relation to the initial view reached by Mr Scott in his letter of 25 November and the final decision reached on 20 February 2006. In particular a deal of the submissions that the Full Bench has heard today tends to suggest that there was some capricious change of position by Assistant Commissioner Ney between 25 November and 20 February and there was a form of gloss over the two letters that were written by the appellant’s solicitor.

PN327

And in effect what was being put to the Full Bench was, without expressly saying so, that a very different finding should be reached about what had taken place in that intervening period. But what really happened is quite different from that in that when one reads the letter of 25 November fairly closely what you see in that letter is that a consideration has been given to everything that has occurred, there is a serious concern and a substantiation of the complaint and really because of the appellant’s background and long standing with the Australian Federal Police the view was taken to depart from what would have been a normal outcome reading the letter overall and to instead move to a process of combined counselling and reappointment.

PN328

But the last paragraph of that letter, appearing at page 129 of the appeal book, needs to be read in that light and in that context because the real position is otherwise lost. I’m just trying to find the particular passage I was going to rely on because I’m needing to go back to some of the material that was effectively put before. But perhaps before I do that what I’d need to do is direct the Full Bench’s attention to what the Commissioner below found in relation to the letters that followed because what you have is this letter which amounts to the holding up of an olive branch. The finding is that the claim has been substantiated, there’s a question of what it is that should be done about it and the decision taken – sorry. Sorry, Commissioners.

PN329

I’m sorry, Commissioners, I’ve managed to bury the page I was seeking to rely upon. If it will assist if I could just find that. Perhaps just while I’m located that, Commissioners, if I could take you to what in fact happened is that you start off the last ..... a contact who indicated that arrangements would be made for the appellant to be contacted. What t hen happened is picked up by Federal Agent Gray who is the general manager of the Sydney office in his affidavit and that appears in the supplementary appeal book at page 435. If I could take the Full Bench to page 435 and you’ll see at paragraph 29 in that affidavit that on
14 December Mr Gray telephoned Mr Fletcher to discuss his return to work to a non operational position with the letter.

PN330

It was his responsibility to implement the decisions and notwithstanding his opinion on the decision and at the time he telephoned Mr Fletcher for operational reasons he had formed the view that Mr Fletcher wasn’t able to change his behaviour in accordance with acceptable guidelines, but he was concerned and he was concerned that it wouldn’t be workable, however he was determined to make the decision work in the best possible way for the office. So he went about it with goodwill. He then had a conversation with Mr Fletcher on 14 December and advised him of a number of options available to him as the manager of the Sydney office.

PN331

He emphasised during the conversation that Mr Fletcher would have to have a reasonable acceptance of what was done was wrong in his reply to the AFP prior to returning. Then at the conclusion of that conversation Mr Fletcher said words to the effect, so to come back I have to say that I’ve agreed I’ve done something wrong even if I don’t believe it and Mr Gray replied as the letter says you’ll have to show a reasonable recognition that you realise that what you’d done was not right. And Mr Gray was left with a continued sense of concern that although he would accept counselling it wouldn’t be a real acceptance of the spirit required for the return to office.

PN332

That concern ends up being entirely realised when one sees the letters that followed from his solicitor of 19 January. There were two in tandem, one of those appearing at 130 and one of those appearing at 135 on 24 January. When one reads those letters overall the position is that there is a comprehensive rejection of all of the findings of the investigation and a rejection of any form of wrong doing on the part of Mr Fletcher, the appellant. What the Commissioner said of that is that - I'll just take you to the Commissioner’s report now in the appeal book at around I'll start with the letters themselves, I'll pick up at paragraph 32 at page 16 of the appeal book.

PN333

Perhaps I'll go back to paragraph 31 of page 16 Mr Boyle, on instructions from the applicant, wrote to Mr Scott. He took issues with the correspondence. He said he hadn’t been given the final report. What happened was that he was given a draft of the final report containing everything but the final conclusion and then after the report was finalised he was given that later. And then Mr Boyle’s letter concluded that it was clear that your own decision is flawed, the entire investigation has cast greater doubt on the professionalism of the AFP and the rest of what’s reproduced. And then a further letter was written, referred to at paragraph 33, a key part of which it is referred to, picked up in paragraph 34 and quoted from.

PN334

It was that that gave rise to Mr Ney’s letter of 27 January which indicated that the report wasn’t being accepted and that he wasn’t going to engage in the counselling.

PN335

SENIOR DEPUTY PRESIDENT LACY: But perhaps the solicitor’s letters were a little bit more robust than they necessarily should have been and then subsequently Mr Fletcher himself was a little bit more, he showed a little bit more willingness to comply.

PN336

MR BROMWICH: Your Honour, I’m agreeing entirely with what you’re saying and the only reason I’m happy to go into this is because my friend has gone into it. I thought the starting point of this matter was going to be Mr Ney’s decision and what came later and that really the focus was going to be much more on the Hurley interview and how we should be dealing with that. But what I’ve heard this morning has gone back into that territory. And perhaps I can cut it short if that’s the position that the Full Bench goes.

PN337

SENIOR DEPUTY PRESIDENT LACY: No, sorry. You see that as you see fit.

PN338

MR BROMWICH: In a sense with respect you have entirely captured the moment because what the Commissioner in fact said was, and this is absolutely the point, the Commissioner then comments on those letters and at paragraph 62 the Commissioner concludes contrary, in effect, to the submissions that have been put this morning that the earlier correspondence from the applicant’s solicitor,
Mr Boyle did not accept the findings of the investigation and disciplinary process, they did not indicate an appreciation of the applicant’s shortcomings and did not provide the basis of any complimentary counselling could succeed. Those communications were not helpful to the applicant.

PN339

I mean, they all were made on instructions, but yes that’s absolutely the correct position. If things had gone no further, if the letter from Mr Ney of 27 January had either produced a similar correspondence or nothing further, then in a sense that position in paragraph 62 would have been the final position. But what did happen is that the appellant then himself in effect took things out of his solicitor’s hand and wrote his own memo which is the one of 8 February 2006 appearing at page 142 and your Honour has had some regard to that and I'll need to come to that in some greater detail.

PN340

This letter sought in effect to retreat to an extent from the letters that have been sent on his behalf by his solicitor and it was that additional material that Mr Ney was taking into account when he made his decision, as reflected in his letter of 20 February 2006 on page 149. I need to develop some further issues in terms of what has arisen today, but that was my first point. Is that the real process for assessing the decision on the basis of the material before Assistant Commissioner Ney is the material that appears from the 8 February memo and onwards. Commissioner Redmond looks like he has a question. No, sorry. I speak too quickly sometimes so I need to pause to give you a chance.

PN341

So we start not as the submissions this morning suggested, by going back to the letter of 25 November, but we start from this point onwards where contrary to the rejection of the position of the solicitors a different stance to some extent is taken and it is the case, following the principles in House v The King, that I can’t stand here today and seek to persuade the Full Bench to a different position in relation to the material that was before Mr Ney. The Commissioner has made a finding in relation to that, that the decision reached was harsh, unreasonable or unjust based on effectively what the Commissioner characterised as a significant measure of retreat contained in that minute.

PN342

But it’s important that we don’t overstate what the Commissioner was saying in that regard. The Commissioner was not saying everything is rosy and that’s the end of the matter. What he was saying is that the letter of 8 February, rather than promoting the response of 20 February, should have prompted further dialogue and if you had further dialogue that might have worked out or it might not have worked out. In other words it wasn’t the end position. It wasn’t going to produce a situation where you said in effect come back and join us and that’s the end of it, but rather that there would be a continuation of the dialogue which might or might not have worked out.

PN343

And it’s from that point that really the harsh, unreasonable or unjust finding was therefore made.

PN344

SENIOR DEPUTY PRESIDENT WATSON: Mr Bromwich, through what process did the position change from Mr Scott’s outcome of recommending formal counselling rather than going in the other direction to Commissioner Ney to ultimately getting to Commissioner Ney?

PN345

MR BROMWICH: At what point did it change to going to Mr Ney?

PN346

SENIOR DEPUTY PRESIDENT WATSON: Yes. Mr Scott’s saying it’s going back through the root of the manager of the Sydney office, to council, discuss alternative employment and that occurred subsequently. Then you get responses from Mr Fletcher’s solicitor and the matter is then dealt with by Mr Ney. What’s the process that led it to going up, if you like, rather than down?

PN347

MR BROMWICH: Well, perhaps if I can answer it in this way and then I'll see if I can get to the full answer that you’re seeking. The way in which the AFP structures these matters, and my friend alerted to a point, is that when these matters go through an investigation process they go up to the level of Mr Ney or a person occupying Mr Ney’s then position or Mr Scott. They between the two of them make a decision as to whether it’s going to be a dismissal decision or not a dismissal decision. If the view is that it’s going to go to a dismissal decision it goes to the more senior officer because Mr Ney was in a position senior to
Mr Scott. So it goes up to him and he takes that forward.

PN348

If the decision they make, and the evidence was clear that the two men did not make this decision lightly, the two men debated this at some length amongst themselves and the effect of the evidence was having regard to the appellant’s background they decided to extend an olive branch and give him another branch. Because they made that decision it then went to Mr Scott, but Mr Scott was still under Mr Ney and they formed that view. Then what happens, as I’ve already indicated, is that Mr Gray makes his contact, then the two letters come in and it’s the two letters that come in that effectively moved it on.

PN349

Because the last paragraph of the 25 November letter at page 129 was intended to be, and this was the way it was put to the Commission, was that it was intended to be a highly conditional olive branch intended to encourage him to see whether he couldn’t improve. So what the decision made on 25 November stage was to give the benefit of the doubt and extend to him this olive branch and an essential component from the AFP’s point of view of this offer was the requirement that he offer a reasonable acknowledgement that his conduct and handling ..... below AFP’s expectations and that is a precondition to counselling being able to take place.

PN350

So first of all he had to have knowledge that he’d done the wrong thing and secondly then counselling would take place. But it was little point in having counselling if it was going to be a simple perfunctory exercise where you dress someone down but they don’t actually have any sense that what they’ve done is not the right thing because unless there was that acknowledgement of having done the wrong thing in the first place the counselling was going to be a barren exercise. And it’s only when you have that appreciation really that some of the correspondence makes sense, as I say the Commissioner made a finding against the AFP in that regard.

PN351

I don’t know if I’m answering the question, but what effectively happens is because that precondition, in effect what the two men had decided was if he acknowledges he’d done the wrong thing then we can take him to counselling and then we can look at where we’re going to be able to find a place for him in a non operational role. But the gateway that has to be gone through is that he’s acknowledging that he’s doing the wrong thing. It’s an essential indispensable gateway because if he doesn’t then, to be it in the vernacular, he simply doesn’t get it and if he doesn’t get it it’s just not safe for us to continue to employ him.

PN352

Those two letters that came back he effectively, rather than saying I’ve done the wrong thing, stridently said I’ve done nothing wrong. So the gateway if you like to going along that route appeared to have been closed. What the Commissioner was saying in his decision having regard to the 8 February memo is that the AFP should not have regarded that gate as being closed although it had been closed by the solicitor. The memo of 8 February had reopened it enough to at least continue a further dialogue the end result still might have been that the door was closed. Or the result might have been that the door was opened and that’s reflected in paragraph 71 of the Commissioner’s decision.

PN353

So there is this – it was a finely balanced matter having regard to all the circumstances. Essentially the AFP could only reasonably be prepared to take a chance with the applicant if he himself knew what he’d done was unambiguously wrong and without that acknowledgement the risk of recurrent behaviour was a risk that a law enforcement agency shouldn’t be required to accept. The point where we parted company below and where ultimately the Commissioner found against us, was as I say this notion as to how you should read the 8 February memo and whether you should regard the door as necessarily closed.

PN354

But it’s not as my learned friend would have the Commission accept today that the 8 February letter put everything to right, everything was going to be okay. There was no problem with having him back on board. The most that it was doing was putting it back to the point of the November letter, which still might not have worked out it still was up in the air, if you like and the Commissioner was effectively acknowledging it may or may not have worked out. He may or may not have seen as I think the Commissioner used the words, the error of his ways.

PN355

SENIOR DEPUTY PRESIDENT LACY: There was no medium substance of that letter of 8 February before, the Commissioner wrote back to Mr Fletcher was there, Mr Ney and Mr Fletcher?

PN356

MR BROMWICH: That’s correct and that is the substance of the Commissioner’s finding. Because what the Commissioner, if we go back to the appeal book and look at paragraph 71, what the Commissioner there says is:

PN357

That whatever the words and attitude in the two Boil letters the applicant’s final reply deserved in light of his service and commendations to be the starting point for further engagement between the applicant and the AFP. It may have been that the AFP’s fears that the applicant could not change may have been realised and this would have informed it’s decision to ultimately terminate or it may have resulted in a mutually successful outcome.

PN358

So that’s what I’m talking about the door not being closed. In a sense what the Commissioner was saying is once you got this letter of – the memo of 8 February what Mr Ney should have done was said well I recognise that you are walking away from those two prior letters, although they are designed in the terms – that’s where the problem arose I suspect – but nonetheless you should have used that as the starting point for further engagement. Instead of using it as a starting point for further engagement, you’ve closed the door, you’ve treated that as not opening the door for further negotiations, you’ve treated the position as being not a genuine back down from the two Boil letters. I don’t seek to say the Commissioner – well I can’t seek to say - - -

PN359

SENIOR DEPUTY PRESIDENT LACY: You don’t attack that part?

PN360

MR BROMWICH: No, and I accept House and the King that’s the decision which was properly the one for the Commissioner, and the Commissioner has made that and I don’t seek to reopen that. But I do seek to set the scene because it’s important that there is an appreciation that it was a reasonably borderline decision at that point. We then come to the affect of what amounts to our response to the appeal and then ultimately also, to our cross appeal, which is what we should make of the Hurley interview. Just before I do that it’s important to pick up on some of the points that my learned friend had to say in relation to what had taken place up to the point at which Mr Ney makes his decision.

PN361

The first of those was related to the change of position arguments that were being put. Once again, I hadn’t appreciated until my learned friend commenced and concluded his submissions that there was going to be a de facto if not an openly announced challenge to the findings of the Commissioner in this regard. Because what the Commissioner found in paragraphs 80 through to 83 in particular, or I suppose really through to 85 is that there was indeed a change in position. My friend made some references to the Fernell or Purnell reference and perhaps I can pick that up most usefully in paragraph 80.

PN362

In the report that the applicant made on 16 April 2005 after his meeting on
14 April 2005 he said he’d been contacted by a male whose voice he didn’t recognise. Then on 20 May he told federal agent Grey he didn’t know who he was meeting with, that the voice sounded familiar. When he was interviewed six weeks later he substantially confirmed that written and oral account, referring to a male who sounded like they knew me and as the Commissioner, correctly in my submission characterised it, he made an oblique reference to there being a 10 per cent chance it was someone by the name of Fernell or Purnell.

PN363

When you go to the actual interview – I just need to locate – when you go to the interview in that particular passage where the reference is to Fernell and Purnell, that’s in the supplementary appeal book at page 84, my friend went straight to question and answer 44 but you need to go back to question and answer 43, because there’s an implicit criticism which was run below and appears to be run again today to the effect that somehow it was the responsibility of the person’s interviewing to ask questions of the appellant about things which they didn’t know about and because they didn’t know about it in some way he wasn’t responsible for what he did and didn’t choose to divulge.

PN364

Question 43 was an open ended question a non leading, open ended question:

PN365

Can you go through what happened on that day please?

PN366

Then you come to question and answer 44 and there’s a reference to:

PN367

I had a phone call from a male who sounded like they knew me, there was no threats, just wanted to have a cup of coffee –

PN368

Now that phrase, just wanted to have a cup of coffee is particularly important from the AFPs point of view and I will demonstrate why shortly.

PN369

We had a lot of work on but even that I didn’t recognise the voice, I actually thought it was someone else, I’m not sure of his name, Fernell, Purnell I mean about 10 per cent.

PN370

Then in the next paragraph goes on and refers to:

PN371

I thought it was just a cup of coffee with someone across the road. I get a lot of people ringing to ask me to come and have a cup of coffee and come and meet a lot of old witnesses, people I’ve met over the years, associates from the family from the film industry, from the financial industry.

PN372

So the suggestion that these names could be from any of these sorts of sources and then over the page at page 85, question 52:

PN373

Okay did you ask at the time who it was?

PN374

Answer:

PN375

No, the person knew me and one thing I’ve found I say to them, who are you, it puts them off a bit, this is has been the lesson, but I’ve always done it that way because if you turn up and you know who it is the person knew me I didn’t want to embarrass them by saying who are you which I will do in the future –

PN376

And so on. What comes out of that is that he was representing that it was a 10 per cent chance it was somebody else from a range of possible places that he made a conscious decision not to ask who it was and that was a representation he made at that point in time. The suggestion that it was a police officer was then never made at any stage until we get to the 8 February letter. When we turn to the 8 February letter which I think Senior Deputy President Lacy was referring to the paragraph, second, the end of the second full paragraph on page 143, that was where at the end of that two-thirds of the way through that paragraph he says that he hastens to add that:

PN377

Throughout the investigation he emphasised that he believed –

PN378

Now the word believed carries some weight:

PN379

-that I was meeting a former police officer known to me and my mistake regarding the identity of the person I was meeting was the reason I failed to take any precautions.

PN380

Now when you read those two together, you can see that there has been a very plain change in position. My learned friend sought to gloss over that but on the one hand he is saying, look on numerous occasions, not just in the interview I’ve gone to, but what he said to federal agent Gray he just didn’t know who he was meeting. He thought he recognised the voice that was it, to saying he had a positive belief he was meeting with a former police officer. That represented the change of position that the Commissioner properly addressed. Just to complete the picture while we are on this particular topic, that assumes some importance from the point of view of assistant Commissioner Ney because he picked up on this particular theme at page 147 in that letter of 20 February 2006.

PN381

That’s where Ney specifically deals with that:

PN382

You’ve claimed throughout the Professional Standards investigation you emphasised that you believed you were meeting with a former police officer known to you no such claims have ever been made.

PN383

Then there’s a quote here from the contact incident report and a quoting from one of the questions in the interview at the question and answer 52, but add into that of course the question and answer 43 and 44. The end of that paragraph in that segment picks up the fact that:

PN384

This was inconsistent with his reports on the matter, the content of your interview with Professional Standards and the correspondence from your lawyer, it’s clearly inconsistent with the passage mentioned above. Which tends to indicate to me that it was in your mind that the caller might well have been an informant or contact and appropriate precautions based on sound police methodology is needed to be in place before any meeting occurred.

PN385

So the change that the Commissioner found was a real one, not an illusory one and it was one of some importance overall, certainly some importance to the AFP and I submit for legitimate reasons. The other change that was picked up was as to the reasons why he had stayed with the interview and again it’s been presented up as a gloss today, to the effect that there wasn’t really a change, it was just a – his responses at the time. But again I need to take the Full Bench to it, but his position to start with was the only reason he stayed was that he never thought about it. It never occurred to him, it never crossed his mind that was his starting point.

PN386

It changed during the course of the investigation from being, I never thought about it, to being a considered and strategic decision to stay there, quite a different thing to not thinking about it to positively, clearly and deliberately thinking about it. But again in my submission I’m only having to cover this because it’s been raised in the way that it has by my learned friend. The Commissioner has plainly and correctly concluded that there was a change in position, a real change as to who it was he thought he was meeting and a real change as to why it was that he stayed at the meeting. I only go through those in that detail to address that.

PN387

We then come to the effect of the Hurley interview and I will need to address some of my learned friend’s written submissions but he has taken the Commission to components of that interview with a particular emphasis but in my submission missed some of the emphasis that needed to take place in relation to that interview. If I could just return to the Hurley interview and in particular the interview commences on page 150 in the appeal book. What has happened here is that Mr Hurley wanted to come forward for two different reasons. One of those reasons which is not effectively dealt with except by reference in the interview was that he was in custody, he was facing charges of conspiracy to import I think it was 10 kilograms of cocaine and I don’t think there’s any issue about this but if a death certificate is required one is available.

PN388

Mr Hurley finally died in custody on 23 January this year, but he was in custody awaiting trial on those matters, and when this matter was on for hearing last year, his trial was meant to be on and kept on being put off because of his ill health, he’d had cancer for some years. He came forward to see whether or not he could provide information and as a result of that get some consideration on the question of bail. We don’t need to consider that further, except as that being one of his motivations for coming forward. The other motivation in coming forward was that he had by then heard that Mr Fletcher had left the employment of the Australian Federal Police, if I could put it in that sort of neutral term, and he was aware that it had something to do with the meeting that had taken place between him and Mr Fletcher.

PN389

He was coming forward to speak on Mr Fletcher’s behalf because he didn’t want Mr Fletcher to be in trouble, in effect because of his dealings with him, Mr Hurley. So his motivations in coming forward at all times were to assist Mr Fletcher in the shadow of his own impending demise. During the course of the interview at one point he talks about having only 12 months to live and it proves in the end that he was unduly optimistic, he only lived another 10 months. So it was in the nature of a conscience thing that he came forward. There was nothing in this interview to suggest that he was intending to do anything but good for Mr Fletcher. That’s a very important starting point when you come to assess the interview.

PN390

When we come to the particular passages you will see that at page 154 the suggestion was being made that somehow Mr Hurley’s memory was failing him and that he was talking about events a long time, 12 months previously, and that therefore his memory wasn’t up to scratch. But that’s put lie to by the range of things which Mr Hurley was able to talk about. He describes at one point that how it was that he first met Mr Fletcher, - sorry skipping back to page 152, question 18, that’s a reference to having been pulled up in Harris Street, Piermont over 10 years earlier. Then question 36 at page 154 that’s a reference to a search warrant that was executed in March 1998.

PN391

What happened after that search warrant, the search warrant referred to the involvement of Mr Montgomery and Mr Hurley in heroin and one thing that has been a dominant feature of Mr Hurley’s life is he’s always said I’m a criminal but I’m not that sort of criminal, I deal with all sorts of things and I do all sorts of criminal activity but heroin is crossing the line, that’s a line I don’t cross. Shortly that will become apparent as well. He has described what happened after the search warrant – this is all the material that was before the Commissioner. Hurley was annoyed that this search warrant that was sort to be executed at his premises referred to heroin. He rang Mr Fletcher and arranged a meeting with him and Mr Fletcher met with Mr Montgomery and Mr Fletcher in the same hotel, the Southern Cross Hotel is this meeting that took place in April 2005.

PN392

He had that meeting on his own, he said he took the tape recorder with him and it didn’t work but nonetheless he went to the meeting on his own. This gave rise to an aspect of the Marengo investigation, only one aspect. Part of the result of that was that Mr Fletcher was counselled and part of the counselling which is set out in the decision of the Commissioner is that he should not meet anyone who is an informant, on his own. An informant in that sense had to be taken to be in the wider sense, someone who is seeking to provide information. So he was specifically counselled in relation to not meeting informants on his own and in his evidence which is in the supplementary appeal book if we need to specifically go to it, he was left in no doubt that he should not have met with Mr Hurley on his own back in March or April of 1998.

PN393

But in any event Mr Hurley’s mind is completely intact, he is speaking lucidly about what took place in 1998 and following and it’s then at page 155 that we get to this particular conversation. The questions and answers at the top of the page, the questioner acknowledges the answer to question 36 and says “okay” and the answer is, “it’s another” and then the questioner chips in “another time you’ve met up with him – yeah”. Question:

PN394

Well going to you know last year when you know course what prompted that?

PN395

And the answer given is:

PN396

I was at hospital and I was sick, I’m not saying the sickness prompted it, I rang him and said I want to see you can you come down and see me –

PN397

And I don’t need to read the rest of the paragraph, save that it’s the theme of being offended by people being involved in the selling of heroin. It’s a consistent theme of Mr Hurley’s that whatever activities I do get involved in, heroin is a line that I don’t cross. Then question 40, the answer, so the questioner is encouraging him to keep speaking:

PN398

He said where are you coming from?

PN399

So there’s a dialogue between the two of them:

PN400

Look this is killing –

PN401

Expletive:

PN402

Kids it’s going one way over there sending it here –

PN403

Then my learned friend relied on question 41:

PN404

So you rang him and said no I rang and made an appointment across the road to see him.

PN405

What my learned friend glosses over then is question and answer to 42. The question encourages further and I said:

PN406

Gerry I said what can I do to find out where they are sending in Europe? I said you cut a point here I’ll tell you how to do it, it’s not hard –

PN407

And so on, so what the substance of what he is suggesting is a meeting to assist Mr Fletcher and through him, one presumes, the AFP in doing something about the heroin trade. So this wasn’t just a phone call about a cup of coffee as I adverted to before. This was a meeting set up between two men who’d known each other, had known each other for a long, long time to discuss a particular problem with law enforcement and to provide some solutions to that particular problem. It’s only then that you have the questioner over the page at question 156 at questions 52 and following, earlier in that page they are referring to which hotel, they are just sorting out that it’s the Southern Cross, which is the same place as the 1998 meeting.

PN408

Question 52 is I’m sure of the gap between the meetings but it was when he came out of hospital he rang him and then set up a time, and:

PN409

I said I’ll meet you and I went and met him –

PN410

That’s where you get the context for the question:

PN411

So he understood that that it was you?---Oh yeah, I rang and told him –

PN412

And so on. In one sense again, I’m having to go into this because of the way in which the case has been conducted this morning. But when one goes to the Commissioner below decision, and as I say I emphasise at each point, that barring the particular point we seek to raise we abominately defend the Commissioner’s decision and his fact finding and don’t seek to challenge them. There is a particular way in which I’ll seek to put that shortly. But the Commissioner in relation to that made a particular finding which in effect my friend is seeking to overturn without having raised that as a ground of appeal. That is contained in paragraph 83 of the Commissioner’s decision at page 30.

PN413

You will see in the last sentence of paragraph 83 the Commissioner has found that in that taped interview Mr Hurley said that he identified himself to the applicant on the phone when arranging to meet the next day. The only point of me going to that material is because there seems to be an implicit challenge to that fact finding. In my submission on House and the King grounds the Commissioner having made that finding of fact, this Full Bench ought not be revisiting it unless going beyond, perhaps having a different view or a different interpretation of the kind my learned friend urges you can come positively to the view that that wasn’t something that was open to the Commissioner to find.

PN414

In my submission when you look at all of those questions and answers, particularly from question 39 through to 54 and you have regard to the last sentence in paragraph 83 of the Commissioner’s decision that is really a factual finding that should be the basis upon which this appeal is conducted, namely that Hurley’s account is that he had identified himself, and as I say there’s some importance that the discussion preceding the meeting was not a two minute, can I have a cup of coffee with you tomorrow fine, see you there, but that some degree of dialogue going much further than my friend would have it.

PN415

Now the point I really want to develop in setting all of that comes down the overall approach which the AFP submits needs to be taken in relation to this case and perhaps I can identify four key points as the grounding for the submission I seek to make today. The first key point is that the Commissioner never accepted the appellants claim that he didn’t know who he was meeting, he was meeting with Hurley. The second component of that same first point is that he never rejected the Hurley record of conversation. The third related point that in this first key point, is the Commissioner accepted that it was legitimate for the Australian Federal Police to have regard to the Hurley record of conversation and I’ve backgrounded that to an extent by referring to the circumstances by which it came about.

PN416

The key point is that the Commissioner did not at any point say that he accepted the appellants claim that he didn’t know that he was meeting with Hurley. What the Commissioner was faced with here was a dilemma which I will develop shortly. But what he was essentially faced with was a dilemma that on the one hand you’ve got Mr Fletcher saying consistently I didn’t know it was Hurley but giving two quite different accounts as to who it was that he was meeting on the one hand. On the other hand you’ve got Mr Hurley’s interview in which the Commission has found that he has plainly said that he had identified who he was going to meet with and the Commission was unable to positively accept or reject either. He was left with the two findings on that but to an extent some of what I’m saying now, cuts across my cross appeal point, but that’s one way that it could be looked at.

PN417

I will persist with my four key points if I may and then develop them. The second key point which I’ve already made but I’ll state it as being a key point is that the inconsistent version of events as to who the appellant thought he was meeting, did in fact only properly emerge in the 8 February 2006 memo and not before and the suggestion is made at various points in my friend’s submissions that this inconsistent was live prior to that but the Commissioner has plainly found that’s not so and in my submission unappellably so.

PN418

The third point, again one which I’ve already made submissions about but I’m identifying it as a key point is that the Hurley record of conversation needs to be read in its entirety and in its context, not just as my friend would have, paragraphs, questions and answers 53 and 54 and in particular there needs to be regard to the leading questions from question 39 and following. The fourth point which is again one I’ve already made but it grounds the submissions overall, was that the Commissioner was never saying that a successful reconciliation of the relationship was inevitable that being even without the Hurley record of conversation.

PN419

The way in which the Commissioner finally reached the determination about this was that the AFP were entitled to have regard to the record of conversation and that properly and fairly read it was going to be if not the last straw, certainly a point beyond which the AFP would not unreasonably be able to move, because if you look at that record of conversation and have regard to what is necessarily occurring, Mr Hurley doesn’t leave much room for doubt on that record of conversation, that the meeting was arranged between the two men, each man knowing who the other one was.

PN420

SENIOR DEPUTY PRESIDENT LACY: How can Mr Hurley’s statement be regarded as reliable? I know you say well it’s a dying statement but given Mr Hurley’s background why should any significant weight attach to what he had to say?

PN421

MR BROMWICH: Well two answers, or three answers to that your Honour. The first of those is that the Commissioner below accepted it to that level, he wouldn’t give it as much weight as oral testimony, but he was prepared to do that. The second is that it’s a common feature I suppose of really more in the criminal jurisdiction but if its common in the criminal jurisdiction where people are facing gaol terms there’s no reason why it shouldn’t be equally regarded in an industrial forum. That is, that criminals are not infrequently witnesses and what you need to look at is the circumstances which render what they have to say reliable or unreliable. If they are saying something which is self serving and in their own interests to exculpate themselves and so on - - -

PN422

SENIOR DEPUTY PRESIDENT LACY: As was the case here.

PN423

MR BROMWICH: Well Hurley wasn’t seeking to exculpate himself at all.

PN424

SENIOR DEPUTY PRESIDENT LACY: He was seeking some concessions on his bail.

PN425

MR BROMWICH: No, but he wasn’t seeking that in relation to Fletcher. The concessions he was seeking were in relation to bail were entirely due to these other matters, which were not dealt with in that interview, because the discussion when you go to the beginning of that interview, there’s the three matters that he wants to raise as to which he wants a concession on bail and then there’s Mr Hurley’s matters and the decision is taken - Mr Fletcher’s matters that’s right – the three matters which he wants to deal with and have taken into account on bail, are dealt with elsewhere.

PN426

It seems that they are dealt with in a later interview and that interview is purely concerned with Mr Fletcher, it’s got nothing to do with helping his own position. He is coming forward as a matter of conscience. He makes references when you read through the interview overall that he didn’t think that Mr Fletcher should get into trouble because of his dealings with him, an he’s come forward to help. So if you are talking about reliability you look at what are the motivations of the person coming forward. If they’ve come forward to help, if they’ve come forward to assist they have nothing to gain by what they are doing.

PN427

He had nothing to gain by what he had to say about Mr Fletcher at all then prima facie, that’s reliable. It’s in the nature of the same sort of territory if you like as admissions, because they are not something which he had any motivation to advance or any cause to advance by giving that, that’s the second point. I mentioned three, and I hadn’t quite expected that question and perhaps I should have done. But it’s well enough recognised that records of interview, even of a
co-accused can be admitted in criminal trials against a co-accused. There was a recent decision of the New South Wales Court of Criminal Appeal where two men were standing trial – sorry one man was standing trial, but there’d been two accused. The co-accused gave an account of events but refused to give evidence in a record of interview, and the Court of Criminal Appeal had no difficulty with the notion that that record of interview was admissible.

PN428

So it’s not a question of whether it’s admissible or whether it can be received in my respectful submission, but what weight you can attach to it and the Commissioner has said well, I read it at its face value. I’m not prepared to give it as much weight as I would oral testimony, but he’s not saying I give it trifling weight or no weight at all. He certainly doesn’t reject it. He’s faced with a real dilemma because on the one hand you’ve got – it’s not as though you’ve got the interview on the one hand and the steadfast position on the other hand. You’ve got a changing position from Mr Fletcher on the one hand and this account from Mr Hurley on the other.

PN429

Really the Commissioner was it seems in quite a deal of a dilemma as to what to do and this isn’t uncommon of course with any tribunal seeking to make findings of fact. What do you do when you’ve got competing positions and perhaps what it comes down to is the different stages of the decision making process. What I was about to say may have some – excuse me – this may be to an extent against the position I’m seeking to put in the cross appeal but I’ll address it and you’ll see how I develop the argument. But essentially there are two different stages. There is the harsh, unreasonable or unjust stage if you like the valid decision stage and then if it’s found to be harsh, unreasonable or unjust, the remedy stage.

PN430

At the first phase, the valid decision or the harsh, unreasonable or unjust phase, if the finding is as it is, that on the material before Mr Ney the decision as to termination was harsh, unreasonable or unjust then the later material would have to be in effect accepted on the balance of probabilities in order to reach a different conclusion. So when the Commissioner, we say he didn’t deal with this but either if he did deal with it or if I satisfy the Full Bench that he didn’t deal with it and this Full Bench has to come and look at it, you would have to look at that material and this goes to my prospects of success and assists my friend to some extent.

PN431

You would have to reach a position in order to come to a different view on the Ney decision that on the balance of probabilities taking into account the Hurley record of conversation that he did indeed know who he was meeting so that such that if the Full Bench grants the extension of time and grants leave to the cross appeal, it’s necessarily the question that has to be addressed is are we satisfied on the balance of probabilities that Fletcher knew who he was meeting. So when you’ve got this dilemma you look to the decision that’s got to be made and that the harsh, unreasonable or unjust stage taking into account pose a decision making material, you look at the record of conversation and say, does that in effect take it across the line.

PN432

When you get to the remedy stage quite a different approach has to be taken because again all the material has to be taken into account and I submit there are several different ways of looking at the Hurley material. The Hurley material can be considered in terms of the decision maker’s own view but it can also be considered in terms of the reasonable response of the Australian Federal Police to the employment relationship. If I could deal with it in those two particular ways. As to the first, that is the decision makers own view, for reinstatement to be ordered as a practical matter, having regard to that further material the decision maker has to positively prefer Mr Fletcher’s account that he didn’t know he was meeting with Hurley.

PN433

So when we are at the harsh, unreasonable or unjust stage he has to prefer the record of conversation in order to come to a different view. When you come to the remedy stage he has to prefer Mr Hurley’s point of view. That’s how you reconcile these two conflicting streams of evidence and this was something that the Commissioner it would seem from reading all of the decision at this stage wasn’t able to do. He wasn’t able to do that even with the benefit of seeing and hearing the appellant give evidence.

PN434

What I’m really submitting on this point which comes to a central point in the response to the appeal is that appellant restraint would cut in at this point and if the Commissioner having seen and heard the appellant was unable to prefer his account over the record of conversation, then it is practically impossible, having regard to appellant restraint, for the Full Bench to come to a more favourable view of Mr Fletcher’s account. So it falls to the nature of the decision to be made in defending what the Commissioner’s found. I realise that’s a point that has to take some absorbing, but when you are divided down the middle and you’ve got accounts either way, you have to look as to which one you are going to have to prefer in order to reach a particular view.

PN435

SENIOR DEPUTY PRESIDENT WATSON: Wouldn’t that be the same conclusion in respect of both matters? This is the evidence I prefer this view?
Mr Fletcher knew it was Hurley - - -

PN436

MR BROMWICH: No, no, what I’m saying is that he hasn’t been able to, the Commissioner hasn’t been able to prefer one over the other. So the first stage, if you want to find that it wasn’t harsh, unreasonable or unjust you have to positively prefer the record of conversation of account. If you are not able to do that then your view about the decision made by Mr Ney doesn’t change. The further material doesn’t cause you to change your position. Perhaps I’m not making that abundantly clear.

PN437

SENIOR DEPUTY PRESIDENT WATSON: Yes. Should the Commissioner have made that conclusion is that what it comes down to? That I prefer Mr Fletcher’s evidence over the evidence arising from Mr Hurley’s account?

PN438

MR BROMWICH: No, and the reasons for that are this. That when you actually deal with the way in which for example, the Briginshaw standard works – I just need to find the relevant passage, I just had it marked out for myself - - -

PN439

SENIOR DEPUTY PRESIDENT LACY: You agree that Briginshaw principle applies in this case?

PN440

MR BROMWICH: Well the one in which Briginshaw works, but not even Briginshaw - you step back a bit from Briginshaw to the notion of balance that the standard of proof, if you are required in order to reach a particular decision that you are satisfied as to one or the other, then if you don’t find that and you can’t make that decision in favour of that party – and it’s not uncommon in the courts and I imagine in the Commission as well in industrial tribunals, criminal courts, civil courts, the whole area, particularly on balance of probabilities, where you’ve got two accounts that conflict, the two can’t sit together. But at the end of the day you simply can’t prefer one over the other.

PN441

SENIOR DEPUTY PRESIDENT LACY: But isn’t it a question then of drawing an inference to the known facts?

PN442

MR BROMWICH: Well you can reach a point and this is what it appears this Commissioner has reached where he is unable to choose between the two. There’s nothing wrong with that, it happens to courts and tribunals all the time. Sometimes you – when that happens for example, if you’ve got a standard civil suit on the balance of probabilities and you say well on the plaintiff’s account this happened on the defendant’s account a diametrically opposed thing happened, I am unable to choose between the two, I can’t – there’s nothing that causes me sufficiently to choose one over the other to reach a balance of probabilities, is effectively it’s not mathematically done, it’s effectively a 50/50 proposition.

PN443

When that happens a case is determined on the onus. That’s what happens in civil proceedings regularly so that when you can’t make your decision, it falls the way of the party who – or falls against the party who has been unable to convince the tribunal of fact which view should prevail and that’s essentially what I’m saying has effectively or may have effectively occurred here, subject to the cross appeal point. That in terms of the harsh, unreasonable or unjust it made a finding that it was harsh, unreasonable or unjust on the basis of the material that was before Mr Ney. You then have a look at this additional material and the Hurley record of conversation, and say does this material cause me to change my mind. Can I come to a different view?

PN444

Well I can only come to a different view if I prefer that on the balance of probabilities over Mr Fletcher’s account I’m unable to choose between the two, if I can’t choose between the two then that line has not been crossed, and I’m unable to depart from the finding I’ve made as to harsh, unreasonable or unjust at the first level. But it’s still the case that it is not the case that you have to find or that you do find, or that this Commissioner did find, that Mr Fletcher’s account should be accepted. You simply don’t have the means to move from the determination that you have made at harsh, unreasonable or unjust.

PN445

However when you come to the question of the remedy of reinstatement, you have to be positively satisfied that it’s appropriate. If you are going to be positively satisfied that it’s appropriate you’ve then got to again face up to the dilemma of which account you are going to prefer. If you are unable to prefer either, you are not going to be able to find positively that it’s appropriate because in order to find that reinstatement is appropriate in the hands of the Commissioner and I’ll come to the AFPs position separately, you are going to have to prefer this time, Mr Fletcher’s account over the record of conversation. The Commissioner wasn’t able to do that, so how can you find it’s appropriate unless you can be satisfied about that?

PN446

I might need to come back to that but that’s the central theme, but a separate theme deals with the reasonable response of the Australian Federal Police. The Australian Federal Policy are not a decision making body of the kind that this body is of course, but they are a body that has to administer the employment relationship. They have to see to the nature of the relationship they can maintain or not maintain with any of its employees. Within the Australian Federal Police they look at the two accounts that Mr Fletcher has given, the two inconsistent accounts as to who he thought he was meeting. On the one hand, no idea, voice vaguely familiar.

PN447

On the other hand a positive belief he was meeting with a former police officer, which of course was necessarily a much more benign explanation for why he went and met on his own. On the other hand you’ve got this Hurley record of conversation which is given in circumstances designed to assist Mr Fletcher, not in any way designed to harm him. He repeats over and over he is an honest man, et cetera, et cetera, and he makes it clear that as the Commissioner found Hurley had communicated who he was to Mr Fletcher. In those circumstances the Federal Police being the sort of employer they are, and I will come to the Perkins decision shortly, they are not just any standard employer, this does not have a wide ranging application to every reinstatement case involving a PS as my friend would have it.

PN448

It deals with this particular situation in this particular case. A man has been through an interview process he has been investigated. He’s had a decision made which has been found to be harsh, unreasonable or unjust because in a sense it was premature. But all of that based upon the notion that he didn’t know who he was meeting. If there is even a reasonable prospect, and this doesn’t come to balance of probabilities, it doesn’t need to go that far. If there is even a reasonable prospect that the Hurley record of conversation, represents the truth, and there were multiple reasons for Mr Fletcher not to be telling the truth on this if in fact he knew it was Hurley, and no reason for Mr Hurley not to be telling the truth on this point.

PN449

The AFP being a national law enforcement body, dealing with some of the most serious of premeditated crimes in this country dealing with life imprisonment for terrorism offences, for narcotic offences and the like, they have to have working for them federal agents who they can trust and if they cannot trust them then the employment relationship is simply not going to work. It’s not just security clearances it’s the practical day to day - - -

PN450

SENIOR DEPUTY PRESIDENT WATSON: Is this subjectively or objectively, view?

PN451

MR BROMWICH: Well there will be elements of both, objectively and subjectively. But objectively, an objectively reasonable stance to take to this material is that he’s given two different accounts, already very different and then there’s this other record of conversation which – for which from an administrative decision makers point of view there is no apparent reason not to accept it. The furtherest my learned friend has come in suggesting that it shouldn’t be accepted is that Mr Hurley’s memory might have been a bit vague. There’s never a suggestion that Mr Hurley has anything, any axe to grind, any reason to do harm or ill will towards Mr Fletcher.

PN452

On the face of that record of conversation the AFP any prudent decision maker of the AFP is going to look at it and say, well either I’m accepting that because
Mr Fletcher had reasons not to be honest about it, if he was in fact meeting with Mr Hurley and knew it. Whereas Mr Hurley has no reason not to be telling the truth on this point, or – and that’s the stronger view – or it is a reasonable conclusion to reach and having regard to the nature of the employment relationship in a law enforcement body, we can’t properly be expected to take the risk. It’s just not going to be a workable arrangement.

PN453

SENIOR DEPUTY PRESIDENT WATSON: Mr Bromwich we were intending to break about now, is that a convenient time?

PN454

MR BROMWICH: It is a convenient time.

PN455

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, we will resume at 2 pm

<LUNCHEON ADJOURNMENT [12.49PM]
<RESUMED [2.02 PM]

PN456

SENIOR DEPUTY PRESIDENT WATSON: Yes Mr Bromwich I think we interrupted you.

PN457

MR BROMWICH: It probably was for the best. There were one or two factual matters I wanted to clear up before I resume what I was dealing with because they have a bearing on the view that might be taken, an in particular a particular way in which my learned friend sought to characterise the process by which this matter became the subject of investigation. The suggestion essentially was made it had only come about because of an embarrassment on the part of the Crime Commissioner of the Federal Police. That really is quite a wrong characterisation of it, and wrong in a number of particular respects which do need rectifying to understand how things did in fact come about.

PN458

You were taken to the last two pages of the appeal book, and in particular those last two pages were two pages that dealt with the direction to furnish information. The impression you were given is that the sequence of events, the meeting occurs, Hurley absconds, the direction – there is some measure of embarrassment and purely as a result of that and nothing more, in effect an investigation commences. It starts only at the high end with the leak of information. In effect that’s not substantiated and the AFP it seems to be suggested then just went down and down until they ended up with something which really wasn’t that serious at all. That seems to be the thrust of what was being said against the respondent. That’s not really what happened at all.

PN459

What in fact happened is that as is reflected in Commissioner Raffaelli’s decision there was a very clear direction to the appellant not to have anything to do with Hurley. There is a reference to 7 February and him saying he didn’t want to be involved with Hurley, but that’s not right either. What actually happened was that when Mr Hardiman went away on leave, the appellant came into dealing with the matter of the Radium investigation, that was the one dealing with at the AFP, he knew that he’d got into trouble with his dealings with Hurley before and didn’t want to be involved in a formal investigation, which is quite a different matter from having contact with Hurley and sought to be removed from that.

PN460

It was in the context of that, that federal agent Gray took it the next step and said, well it’s not just that you are not in this investigation, but you are not to deal with Hurley. You mustn’t even – and it got to illustrate the point, the appellant’s own evidence before the Commissioner was that he had been told in effectively he mustn’t even bump into Hurley, which was obviously a reference to the extent to which he was to avoid contact with Hurley altogether. The appellant hadn’t sought to be put in a position where he didn’t have contact with Hurley.

PN461

He sought to be put in a position where he would not be investigating Hurley which would itself be an impediment to dealings he might otherwise want to have.
That wasn’t I should say said, but that was the practical consequence of it but this extra step was taken he was told not to have contact. Then what happened is that the contact did occur and the debate about whether he knew it was Hurley or not is a separate question which we’ve addressed and I’ll be addressing further shortly. But after that federal agent Gray within a matter of two weeks of that occurring went down to the New South Wales Crime Commission and had a meeting down there unrelated to any of this and the important point here is that it’s suggested in effect, that Mr Fletcher did all the wrong things and he reported what had taken place and everything was perfect from then on.

PN462

But what actually happened is, that in the context of Gray expressly telling Fletcher not to have any contact with Hurley the contact took place, Fletcher put in a report which made no reference whatsoever to having a contact contrary to an expressed direction from the general manager of the Sydney office, and the report on its face, doesn’t in any way highlight this particular problem, or this aspect. We then turn to page 432 of the supplementary appeal book and you will see there at paragraph 20 of federal agent Gray’s affidavit he said on 2 May 2005 which importantly is before Hurley has absconded, he attended the New South Wales Crime Commission in Kent Street.

PN463

He attended a meeting with Mark Standen who was the New South Wales Crime Commission officer in charge of operation Radium. He said that Fletcher had contacted him and told him of the fact that he’d spoken with Hurley about two weeks before and he advised him of the things that were there recorded in paragraphs (a), (b) and (c) which included a call from an unknown person again. Standen didn’t understand, this is paragraph 21 over on page 433 while Fletcher was telling him this:

PN464

Standen assumed that I’d know about this and was surprised that I did not –

PN465

I’m sorry, the absconding had taken place, sorry:

PN466

They informed me due to a possibility that Hurley had gained knowledge of the investigation and had absconded before police could take action against him and he was surprised and he reported it to Professional Standards.

PN467

But it’s not the case that there was some sort of blow up or some sort of embarrassment. As soon as Gay became aware of this matter he reported it to Professional Standards. The Professional Standards matter then was proceeding on two levels. First of all the level of the meeting having taken place and secondly, on the level of the leak. Of course, the question of the leak was something that was going to have to take precedence because as it turned out Mr Hurley was on the run for nine months and was finally apprehended in Glebe. I think Mr Mara was on the run for closer to 18 months and was finally apprehended on the far south coast.

PN468

When one looks at the two documents that were referred to you will see there that they refer at page 169 in the appeal book and then at 170, each of these documents are directions that are given out immediately at the time of immediately preceding an interview. So what they are designed to do is to say well we’ve got this allegation and you are directed to answer and the reason for that is that in order that an officer can’t decline to answer on any grounds at all. They have to go ahead and answer, so the timing of this document is apt to mislead. The actual point at which the referral took place was back on 2 May and the investigation would have taken place in that intervening period culminating in an interview.

PN469

The second point to notice about that document is that the first allegation is not one directed to Mr Fletcher. The first one is a more general allegation, namely that Commonwealth information has been provided, that is provided by somebody and the second allegation is the more specific one that it had come from him. So the AFP investigation is at a broader plain. A legitimately broader plain, there seems to be a suggestion that somehow this wasn’t the proper thing to investigate. The reality is a one on one meeting takes place and a matter of weeks later Hurley absconds. It would have been irresponsible of the federal police not to have looked into that. The primary or first allegation was a more general one and the specific one as to Mr Fletcher himself, and those two matters had to be specifically referred to in order to give some context for the direction that’s contained within those notices.

PN470

What’s then missing from the appeal bundle, and I confess I had not noticed this had been missed, was that a separate stage took place after that allegation – I’ll just locate the further document that didn’t get included in the appeal book. You have the two interviews, you have the two directions given for the purposes of the interview, then there was after the first interview, there was a suspension on 27 May, so immediately after the first interview. That particular document is the one that should have been put in there because that document which is between the two that have been reproduced states that the suspension relates to a current Professional Standards investigation concerning allegations that you failed to comply with AFP guidelines applicable to human source handling.

PN471

So the true sequence of events is, yes, there is the direction in relation to the bigger issue and two days after that interview there is the suspension from duty on the basis of a failure to comply with AFP guidelines. Then there’s a further interview which is still dealing with the bigger issue, but at the same time in parallel, there is the failure to comply with AFP guidelines relating to human source handling. It’s just the way it’s been presented this morning suggests a sour grapes approach. It wasn’t that at all, it was a properly considered and properly brought about process.

PN472

COMMISSIONER REDMOND: Why are there two documents then? Why document on 69 and 70? Because within two days, I mean it appears to me the only difference in the two documents is the Crimes Act disappears?

PN473

MR BROMWICH: One is dated 25 May and the next is dated 27 June.

PN474

COMMISSIONER REDMOND: June I’m sorry yes.

PN475

MR BROMWICH: The reason for that Commissioner is that there were two interviews.

PN476

SENIOR DEPUTY PRESIDENT LACY: Yes but the only difference is that the Crimes Act disappears, doesn’t it? The documents other than the dates and the signing down the bottom appears to say the same thing.

PN477

MR BROMWICH: Yes, but a direction is given before each interview. If he had four interviews, there would have been four directions.

PN478

SENIOR DEPUTY PRESIDENT LACY: So nothing to do with the Crimes Act on the second one? The Crimes Act disappears?

PN479

MR BROMWICH: I just want to make sure I don’t - - -

PN480

COMMISSIONER REDMOND: The second interview must not be as serious as the first interview, that’s what I’m asking?

PN481

MR BROMWICH: No, Commissioner, someone in drafting the first one has seen fit to include the particular provision and the second one doesn’t have the reference to the provision, but it’s the same matter. That’s just – I don’t know why someone has drafted it differently.

PN482

COMMISSIONER REDMOND: It appears to me that it doesn’t look as serious that’s all.

PN483

MR BROMWICH: Well - - -

PN484

COMMISSIONER REDMOND: Are you telling me I should take it to be as serious?

PN485

MR BROMWICH: There’s no difference for some reason - - -

PN486

COMMISSIONER REDMOND: There’s got to be a difference, the words are not there.

PN487

MR BROMWICH: Well your Honour the allegation is the same, the Commonwealth information provided and releasing Commonwealth information, one of them refers to the Act in general terms, but not the section number of the Crimes Act. The other doesn’t do that, but whether the view was taken that the first one referred to the Crimes Act unnecessarily and the second one decided to broaden it. In one sense the second one might be taken to be wider because it covers not only the criminal offence but beyond that more than the criminal offence, but I don’t have a direct answer for that.

PN488

COMMISSIONER REDMOND: All right thank you.

PN489

MR BROMWICH: But it’s not the case that it’s less serious, that’s in answer to your question. As I understand the practice you get the direction when you are being interviewed, so that – it has two aspects first of all you’ve got the direction, secondly the way in which the direction comes about is that it affords you a protection because it can’t be used against you in a criminal proceeding because the focus of the matter is getting to the bottom of the problem as a matter of administration of the organization. So the direction as I understand it has a dual role. Both directive and protective, I think that’s right, but that’s not of particular importance here.

PN490

SENIOR DEPUTY PRESIDENT LACY: Is there any evidence about what steps were taken as a result of the report made by Mr Fletcher about the fact that Mr Hurley had indicated that he was going away?

PN491

MR BROMWICH: That he was going?

PN492

SENIOR DEPUTY PRESIDENT LACY: Away?

PN493

MR BROMWICH: Well it ended up being false information.

PN494

SENIOR DEPUTY PRESIDENT LACY: Because when he disappeared?

PN495

MR BROMWICH: No, one can’t 100 per cent know – one can’t 100 per cent know. But what he said was he was intending to go in six weeks and he in fact went in three. Now you don’t know whether he did that because at the time he had really in contemplation in six weeks, or he was saying I’m going in six weeks, so everyone rests on their laurels and in fact he goes in three. In fact what happened was, if anyone was relying on the six weeks, they would have been led astray, because they would have thought they had another five, four, three, two, one weeks to go, but in fact three weeks later he went. I should say the reason, the dominant reason why Mr Fletcher was cleared of a leak wasn’t because the circumstances didn’t look pretty bad because on any view they did.

PN496

He had a meeting with someone and they abscond a short time later and I should say it doesn’t rely upon deliberate getting of information. Someone as canny as Mr Hurley, can pick up clues and cues and the way in which things are answered and so on. But it transpired that there was, I believe a known although unidentified source, because Hurley I think referred to getting information in a conversation with someone else which was tapped. From that they were able to ascertain that it was a reasonable basis for concluding, without knowing who it was, that it was someone else.

PN497

To this day it is not known, proved positive, who the source was, that is a residual concern. So I mainly wanted to make the point that the process by which this came to be investigated was not the embarrassment point that my learned friend sought to make, although there was some cross-examination of Mr Ney on it, and Mr Ney didn’t actually know, he wasn’t involved in it. So to the extent that he gave answers on that, he was talking about things he wasn’t personally involved in. If I could return to the submissions I was making prior to the luncheon adjournment.

PN498

I suppose one thing I should have injected into all this dealing with the appeal being brought by the appellant in that it is perhaps stating the obvious, but it is there stating as a framework for what I’ve got to say and that is, that it’s fundamental that there be properly established an error on the part of Commissioner Raffaelli in reaching the conclusion that he did on reinstatement having regard to the fact that what is required to be met, is a satisfaction that reinstatement is appropriate. Debate can be had about precisely how it’s formulated but so far the nature of the submissions seems to be more to the effect that he should have come to a different conclusion, not that he had to come to a different conclusion.

PN499

Although there are some further points that are taken on that which I need to address. The point I was making before the luncheon adjournment was that at the point of reinstatement Commissioner Raffaelli seemed unable to prefer the Fletcher version to the Hurley version as to whether the two men – or whether
Mr Fletcher knew he was meeting with Mr Hurley, and that he did that and was unable to reach that conclusion, despite having the benefit of seeing Mr Fletcher give evidence, hearing Mr Fletcher give evidence and forming a view about him.

PN500

Stating the obvious I suppose the Full Bench doesn’t have the advantage that Commissioner Raffaelli had in that, that is in seeing the evidence being given and the submission which I did make before lunch, but to pick up on the theme, the submission I make on behalf of the respondent is that applying properly the principles in House and the King, it I submit, it would not be proper and it is in any event difficult thing as a matter of practicality for the Full Bench to come to a stronger view in favour of Mr Fletcher without the advantage of actually hearing or seeing his evidence. If Commissioner Raffaelli couldn’t come to that view having seen it and getting the full weight and benefit of having seen it, in my submission the Full Bench ought not to go further than the Commissioner was able to go.

PN501

The theme I was reaching just before lunch was as to the AFP position on the employment relationship and the case I had made some reference to or was about to make some reference to was the case of Perkins. I’ve got copies of Perkins here the case is Perkins and Grace Worldwide Australia Pty Ltd reported in 1997 72 IR 186. It is the decision of the Full Bench of the Industrial Relations Court of Australia. Of course this is dealing with the prior test of impracticality for reinstatement rather than the current test of appropriateness for reinstatement but I think the McLachlan case that my friend handed up before lunch supports this as being still an applicable authority for consideration on the topic of reinstatement.

PN502

If I could take the Full Bench to page 191 in Perkins and the middle paragraph is the one that Commissioner Raffaelli in effect, not those words, or this source, but in effect recognised that you can’t just take a general attitude that of not having reinstatement. But the paragraph I really rely upon is the one following that which starts with:

PN503

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer or some other person or persons might depend on the reliability of a terminated employee and the employer has a reasonable doubt about that reliability.

PN504

The words I hover really on, is the words of reasonable doubt – then the court goes on:

PN505

There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations –

PN506

They go on to say that concepts of trust and confidence are concepts of degree and its rare to have absolute trust. But when you apply it to this particular situation, what you’ve got is a man who has been forbidden to have contact with a particular individual. A man who gives two different accounts as to who he thought he was meeting and in a record of interview, or record of conversation with a man he is meeting who has come in to help him, making it clear on the finding of Commissioner Raffaelli and I say a proper reading of questions 39 and following in that record of conversation, that he did indeed know who he was meeting, in all those circumstances the AFP are entitled to have a reasonable doubt about the obedience and reliability and discretion and or related matters in relation to Mr Fletcher.

PN507

In a sense that is really what Commissioner Raffaelli was saying, that when you have regard to all that material it’s very difficult to see that the AFP is not going to have a reasonable doubt and is not going to have a reasonable and proper concern in trying to accommodate the re-employment of this man in circumstances where you are dealing with often times, matters of life and death. It’s almost a trite observation that the federal police have had over the years, quite a number of their witnesses murdered, these sorts of things are real life situations. The Douglas and Isabel Wilson case is the most famous but there’s been I think somewhere between five and 10 witnesses murdered over the last 20 years, AFP witnesses and these are real matters of real concern which the AFP in carrying out its national investigation function has to have regard to.

PN508

SENIOR DEPUTY PRESIDENT WATSON: Mr Bromwich do you say when you have regard to all that material in determining trust confidence in Mr Fletcher, what was all of that material?

PN509

MR BROMWICH: Well the starting point is the prohibition on having contact with Mr Hurley. The second point is that he goes ahead and has the meeting and the next point is that he gives very differing accounts as to who he thought he was meeting with, starting off with his written report of the next day confirmed verbally that he didn’t know who he was meeting with and culminating in the 8 February 2006 minute where he said he’d always emphasised that he thought it was a former police officer and then you’ve got the Hurley record of conversation able to be read properly and be taken at face value in all the circumstances that
Mr Fletcher did in fact know who he was meeting with and casting doubt on everything else he said, including during the course of a Professional Standards investigation.

PN510

Now if you’ve got a reasonable doubt as to whether he’s told the truth to an internal affairs investigation, that’s what the threshold test we are talking about here, reasonable doubt, then how can you not have a reasonable doubt about his reliability more generally in deploying him in an organization of a particular kind that the AFP is and this is not a low level concern about which would apply to the reinstatement of anyone in relation to the AFP. It arises in this particular circumstance where Mr Hurley was acknowledged in cross-examination before the Commissioner by the appellant as being one of the Godfathers of organized crime in Australia. He wasn’t some low-level corner criminal. He was a major player.

PN511

SENIOR DEPUTY PRESIDENT WATSON: But having regard to that range of materials stretched over time if you like, as I understand it is the sequence is Fletcher meets with Hurley, that causes considerable concern to the AFP, there’s an inquiry, but after the inquiry, Mr Scott decides that it is not a situation where the employment of Mr Fletcher is at risk, and decides that counselling and transfer is the appropriate course of action. That has regard to some of those circumstances a briefing of the prohibition if you like for example, and having a meeting. You then get the solicitors letters on behalf of Mr Fletcher, the matter is elevated back to Mr May 27 January letter. Fletcher’s response 8 February and then a termination letter of 20 February is it?

PN512

MR BROMWICH: Yes.

PN513

SENIOR DEPUTY PRESIDENT WATSON: The Commissioner in dealing with valid reason at 63, 64, finds well there’s an insufficient basis for Mr May to have mistrusted and rejected the applicant at that point in time, 20 February the time of termination on what was known to Mr Ney at that time presumably in light of the 8 February letter essentially.

PN514

MR BROMWICH: Yes.

PN515

SENIOR DEPUTY PRESIDENT WATSON: However, when the Commissioner comes to reinstatement at 87, he then goes back and relies on the loss of confidence, loss of faith and trust which he earlier found there was an insufficient basis for, describing the Hurley interview as an additional matter further adding to the already existing view that they had lost trust in confidence which the Commissioner earlier suggested was insufficiently founded. Doesn’t that have the Hurley interview in perhaps the – well the Hurley interview is the only matter beyond 20 February as really the sole basis of finding there was a loss of trust in confidence in light of the earlier finding by the Commissioner?

PN516

MR BROMWICH: No. What my friend has sought to do, and this is the right time to deal with it then, he has sought to say that because Mr Ney had formed that view and he didn’t doubt that he’d genuinely formed that view.

PN517

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN518

MR BROMWICH: He nonetheless in light of the 8 February minute from the appellant, should not have closed the door at that point but should have proceeded to have further discussions. But implicit in talking about having further discussions is an acceptance that the AFP were entitled to have the view that they had, but they should have explored it further. What my friend seeks to say is that when you look at paragraphs - - -

PN519

SENIOR DEPUTY PRESIDENT WATSON: Except that 64 of the Commissioner has explicitly found there was an insufficient basis in light of the 8 February Mr Ney mistrusted, rejected what the applicant was saying which went to the issue of trust and confidence, in particular in respect to his preparedness to accept that his meeting with Hurley was inappropriate in several respects and that account he would accept counselling.

PN520

MR BROMWICH: I just need to gather my thoughts on that.

PN521

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN522

MR BROMWICH: But what I’m saying about it, two things, in relation to paragraph 64 has to be read in the context of paragraph 71 and when you read paragraph 71 the Commissioner is saying it may have been that

PN523

The AFPs fears that he could not change may have been realised and this would have informed its decision to ultimately terminate.

PN524

What I’m saying there is that the Commissioner was not saying that they didn’t have a view that the relationship had broken down and was not saying that they didn’t genuinely hold that view, he was simply saying there was an additional stage or step that you needed to go through, notwithstanding that you’ve got that view. Because he’s not saying there you don’t have that view, he’s saying you shouldn’t have stopped at that point, you should have gone the extra step. What my learned friend seeks to say and I recognise this as by the way it’s been raised by the Full Bench that it’s an issue which I have to address. But as I read it and as I submit the decision, the Commissioner was not saying there was no basis for the concerns and there was no basis for the view that the AFP had formed, but rather that should not have been the end of its, that because of the 8 February minute, the final reply deserved in light of this history, to be the starting point for further engagement and it may have been that his fears that he couldn’t change would be realised or it may have resulted in a mutually successful outcome.

PN525

Now if the fears that it couldn’t have changed were going to be realised, that was going to be in essence, that he wouldn’t upon further inquiry, genuinely have been found to have accepted that he compromised the AFP and more to the point at the top of page 28, the AFPs belief that he didn’t accept the seriousness of his failings and was unwilling to genuinely accept counselling. So that the submission I make in relation to that is it’s not correct to say that the Commissioner had rejected the AFP as having that view, or having that belief - - -

PN526

SENIOR DEPUTY PRESIDENT WATSON: Well that’s not the issue, it’s whether it was on the evidence the factual position that there was a basis for a distrust, lack of confidence, as distinct from a genuine view of the employer to that degree.

PN527

MR BROMWICH: What I’m really saying is that when you read paragraph 71 the Commissioner wasn’t saying there wasn’t a basis for that view, but that it shouldn’t have been the final position, that they should have engaged further to see whether or not that was the right ultimate conclusion to remain at to finish up at.

PN528

SENIOR DEPUTY PRESIDENT WATSON: Well that’s where he’s got to on the presumption at the start of 70 if the AFP did have a valid reason to terminate, but hasn’t he through 59 where he states the reason for dismissal was a fundamental breakdown in relationship due to the AFPs belief that the applicant did not accept the seriousness and his failings and unwilling to accept counselling and then goes through to 63, 64 where the finding that there was an insufficient basis for Mr Ney to reach that view and it’s on that basis in 64 he finds there was not a valid reason to terminate the applicant’s employment.

PN529

MR BROMWICH: I’m picking up on that sentence which you’ve just with respect referred to in paragraph 64, the last sentence:

PN530

There was insufficient basis to have mistrusted and rejected what he was saying in his reply.

PN531

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN532

MR BROMWICH: As I read that and perhaps I’m in a – what the Commissioner was saying and I know that section 71 does occur at the final stage, but that assessment contained in section 71 is still part of the view overall of the Commissioner, it is not an alternative view, in the sense that it doesn’t inform the view that the Commissioner was taking of the material. What I’m saying in that last sentence is it is to do with this question of whether the door, at that stage, was legitimately being closed or not. Not that the AFP didn’t have that view, and not that Mr Fletcher didn’t have a contrary view or position but that given what was being said in the minute of 8 February, in the context of the two letters from the solicitor, remembering back at paragraph 62, the finding has been made that:

PN533

The two letters did not indicate an appreciation of shortcomings and did not provide a basis for any confidence that any counselling would succeed.

PN534

So what he’s saying in effect is you’ve reached that view in relation to Mr Boil’s two letters, you have declined to change that view in light of his minute, that was premature, you should have waited and spoken to him further and seen what he had to say, to see whether the conclusion you’ve reached based on the two Boil letters, was the right final conclusion to reach or not. What I’m saying here is that he in order to have what is set out in paragraph 71, I know that’s on the – going on from the question of a valid reason but nonetheless - - -

PN535

SENIOR DEPUTY PRESIDENT LACY: Well actually 64 and 71 deal with different issues, don’t they? 64 is actually dealing with the question of whether there’s a valid reason. 71 the Commissioner was talking about the dealing with the presumption that it wasn’t a valid reason and considering whether the termination was harsh, unreasonable or unjust?

PN536

MR BROMWICH: Yes, but in my submission - - -

PN537

SENIOR DEPUTY PRESIDENT LACY: In 64 he was considering whether it was valid and he makes a finding there that there was insufficient basis for Mr Ney to have mistrusted and rejected the applicant. When he gets over to 69 he says, well if I’m wrong about the valid reason issue, it follows the termination was harsh, unreasonable or unjust, then the Commissioner goes on to review the fact, that question and that’s how he comes to the conclusion that its harsh, unreasonable or unjust in that he was not there, given another chance to come back and satisfy the Commission that he was a person you could satisfy.

PN538

MR BROMWICH: To satisfy the AFP in that?

PN539

SENIOR DEPUTY PRESIDENT LACY: Yes, to satisfy the AFP.

PN540

MR BROMWICH: I accept that paragraph 71 is dealing with the alternative arising from 70, but nonetheless, it is in forming the view that the Commission has reached about the situation overall, that is that the AFPs fears that the applicant would not change may have been realised. So by saying that he isn’t saying – I recognise that it’s at the next stage – but he is still saying that the AFP still held that view. There’s a difference between saying whether the AFP holds that view and whether that view was a sufficient basis to terminate. That might be the better way to express it.

PN541

SENIOR DEPUTY PRESIDENT WATSON: The test is not whether the employer’s decision was reasonable, but rather whether on the facts there was a valid reason for termination.

PN542

MR BROMWICH: That’s correct, so that you can hold a view, genuinely hold a view, and even legitimately hold a view that it can still not be a valid reason, because there was a further process that needed to be gone through. What when, the Commissioner was then considering reinstatement, he is saying well I’m going back to the position where you’ve got that view, I have regard to that view, and then I take into account the Hurley record of conversation and I can see now at the issue of reinstatement that it is in effect not appropriate to reinstate because there is a well founded basis for their contention that they’ve irrevocably lost trust and confidence, because you bring the two together.

PN543

What I’m really saying is that in order to make the finding at paragraph 64 there didn’t need to be as my learned friend suggests and I hope I’m convincing the Full Bench otherwise, there didn’t need to be a finding that the AFP didn’t hold that view. Just that that view wasn’t sufficient to make the decision at that stage. Whereas my friend is saying because the Commissioner was saying that wasn’t a valid reason for making that decision, the underlying view being held didn’t exist. It evaporates as though it has never been and my submission is no, the view remains there, it wasn’t enough on it’s own to act, but when you come to reinstatement you put that view, you had to it the Hurley record of conversation, I’m not satisfied that reinstatement is appropriate.

PN544

SENIOR DEPUTY PRESIDENT WATSON: But that leaves, it leaves the Hurley interview that wasn’t there at all and the same conclusion was reached as to AFP attitude mistrust, lack of confidence, reinstatement was inappropriate, that would leave a position where reinstatement was seriously devalued and it may have not rendered nugatory and an employee could have a view, a genuinely held view that the employees stole from them. The evidence suggests that that is not the case, the employer nonetheless maintains that view and genuinely has no confidence in the employee as a result, but does that preclude reinstatement?

PN545

MR BROMWICH: That’s only if you read the first sentence in paragraph 87 as being reflective of not taking into account the Hurley material, whereas in my submission when you read paragraph 87 as a whole, that first sentence in paragraph 87 is referring to all the material not exclusively.

PN546

SENIOR DEPUTY PRESIDENT WATSON: Yes it is and the issue I started with was does this all come down to the Hurley interview, is it only the Hurley interview the Commissioner is referring to, is relying on to find that termination is inappropriate given his earlier findings on the insufficiency of the AFPs concern about the trust and confidence as of 20 February.

PN547

MR BROMWICH: Why I hesitate but I’m not seeking to refuse to answer the question, but why I hesitate is that if you look at it in that way it is as though you look at the Hurley interview in isolation. Whereas the Hurley interview has to be taken into the context and given meaning in the context of all the other material. So it is an additional, it certainly is a very important additional thing but it colours everything else, it doesn’t stand on it’s own and you say well here’s the body of material on the one hand, and here’s Hurley on the other hand, is the Hurley material enough to change things? Well it’s not read in isolation it actually infects and affects all the rest of that material because it passed out on the entire investigative process and the entire means by which Mr Fletcher came to meet with Mr Hurley on 14 April 2005.

PN548

What the Commissioner is saying here is if you look at all that material there was a point at which you need to have further negotiation but when you add the Hurley material in and have regard to the effect it has on the rest of the material, then there is well founded basis for the contention they’ve irrevocably lost trust and confidence in the applicant because that Hurley material is not read in isolation, it’s read in context and affects everything else that’s been said. It affects the way in which Mr Fletcher wrote his minute of 16 April, it affects the minute that he wrote of 19 April 2005, it affects all of his interviews, it affects everything he said, the letters that were written and the lot.

PN549

It colours the whole process because it puts a different complexion on the whole matter and there must be a reasonable doubt that everything that was said during the course of the investigation on the topic of Mr Fletcher knowing who he was meeting, is to be doubted. The AFP have got to deal with that form of risk assessment.

PN550

SENIOR DEPUTY PRESIDENT WATSON: This was never put to Mr Fletcher at any time either in investigation or in the Commission the possibility that Mr Hurley suggested that he had identified himself on the phone call?

PN551

MR BROMWICH: Yes, he was cross-examined on it at some length.

PN552

SENIOR DEPUTY PRESIDENT WATSON: I see.

PN553

MR BROMWICH: It was squarely put to him that he knew he was meeting with Mr Hurley and indeed the nature of the submission was that what he had really done, was he knew he was meeting with Mr Hurley all along, that he initially said he didn’t know who he was meeting, recognised that in fact going along and having a meeting with someone whom he had no idea who it was not much better than knowing it was Hurley, but he ended up right at the end of things, by 8 February 2006, coming up with a halfway position only if you like, a safe explanation for why he went ahead and had the meeting. Namely, that he believed that he was meeting with a former police officer.

PN554

COMMISSIONER REDMOND: But when it was put to him at the hearing below, he continued to deny that he knew it was Hurley, did he not?

PN555

MR BROMWICH: Well of course.

PN556

COMMISSIONER REDMOND: Of course, what you’ve just gone on it clones belief.

PN557

MR BROMWICH: Well it was put to him that he knew these things in light of the Hurley interview. Prior to that it was put to him that Hurley had been in there to assist him and he accepted that Hurley had been there to assist him, when he came to his differing accounts at one point he maintained that he couldn’t see any difference between two starkly different accounts and he wouldn’t shift on that. His performance in cross-examination when you read it carefully, is not a good one and that probably contributed to the inability of the Commissioner to form a view that he could accept Mr Fletcher’s account on all of this.

PN558

But that doesn’t mean that you then go t the other end and say well if I have difficulty his account on all of this I accept the opposing account. It may be that you just reach a point where you can’t accept or prefer one over the other, that’s not an uncommon occurrence in litigation that two competing views can’t be reconciled and neither can be preferred and then it comes back to the debate I had before lunch as to what you then do with that. But in a sense in that debate – or it doesn’t go directly to the point that I’m dealing with based on Neville, the point I’m dealing with based on Neville is looking at the employment relationship which doesn’t require balance of probabilities.

PN559

It requires issues to do with the nature of the relationship and reasonable doubt and whether the AFP were entitled to look at this material and say well in the context of everything how can we trust this man? How can we not have a reasonable doubt about what he’s had to say to us, when on the face of the Hurley interview a man who has come in to help him, he knew full well who he was meeting all the time, that’s the nub of the problem. I should say in that regard that Mr Hurley – Mr Fletcher only ever held himself out as being an investigator. The jobs that he applied for in mitigation of his circumstances were only ever investigator jobs.

PN560

There was some suggestion throughout the FIT team, but the FIT team is operational in a practical way you are not out in the field operational. But its feeding financial information in intelligence to people in the field and the position really is no different. One of the things I was going to refer to as well, is if he is an investigator just what the AFP are meant to do with him in that circumstance. There was an additional document which I would seek to hand up which is the Commonwealth Director of Public Prosecutions statement on prosecution disclosure. If I can just hand that up and this really highlights part of the problem that the AFP are going to have to deal with as well.

PN561

That is that this document is a document published by the Commonwealth DPP website it is something that guides the way in which both the prosecutors and in fact the federal police, because the state of law is that prosecution disclosures reach back into investigating agencies, we then turn to paragraph 3 and the heading at number 3, on page 3 and the balance of that page and over then on to page 4. What would be required if Mr Fletcher was to return to role as an investigator which is what he’s qualified to be with the AFP is that all of the material that’s come before this Commission including the different versions he’s given to the internal investigation and the Hurley record of conversation would have to be disclosed to any defendant.

PN562

The reality is the sort of cross-examination he had here before the Commission is likely to be replicated in a criminal proceeding and as a practical matter he just simply can’t be used as a witness. It is an unfortunate fact of life but that’s what it is. The prosecution are obliged to disclose anything which may have a bearing on the credibility of a witness. So the first sentence:

PN563

The prosecution is under a duty to disclose to the defence information in its possession which is relevant to the credibility or reliability of a prosecution witness.

PN564

All of this material would have to be disclosed, there are no two ways about it.

PN565

SENIOR DEPUTY PRESIDENT LACY: But if the Commission in its decision made a finding that the statements made by Mr Fletcher in the course of those interviews were not inconsistent, would not disclose it, would that overcome the problems?

PN566

MR BROMWICH: No.

PN567

SENIOR DEPUTY PRESIDENT LACY: Why not?

PN568

MR BROMWICH: Because the obligation is to disclose any material which might affect credibility and a criminal defendant is not obliged to be bound in the course that it takes in cross-examination of anybody by the finding such as by this Commission they are entitled to the primary material and the case of Grey that I referred to I can provide that if needs be, but it makes it clear that this sort of material must be disclosed. It is a major problem.

PN569

SENIOR DEPUTY PRESIDENT LACY: How is it that in those circumstances where a finding was made that those statements were not inconsistent, would the court not take note of that finding despite the fact that they might be cross-examined?

PN570

MR BROMWICH: But within the juries, this is problem, it mainly comes up in jury trials and in cross-examination on credibility where there are different versions, he said one thing, Mr Hurley said something else. All they would need is his evidence here, the records of interview, Mr Hurley’s record of conversation and that’s enough because it does open up questions of credibility which the defence are entitled to. It’s just one of those things which has to be done and the obligations are very plain coming from Grey and the string of cases following Grey in the High Court.

PN571

Grey was a case in which there was non disclosure of a fact that someone had been given concessional treatment prior to them giving evidence and the principles are very clear on that, and that statement represents what the state of the law is, it would have to be disclosed, that’s definitely the case. I think I’ve said what I wanted to say in relation to the appellant’s appeal. I now need to turn to the proposed cross appeal. In relation to the extension of time, the submission I make is that there shouldn’t be an encouragement towards the lodging of protective appeals.

PN572

The approach of the federal police was a principled one in that there was an acceptance of the errors identified by the Commissioner below in relation to its procedures and in particular in relation to the 8 February 2006 minute of the appellant. The view taken was that the error on the part of the Commissioner below was confined to not dealing with the post decision material, that is the record of conversation in Gale and Dawson there was the reference to the need to do justice between the parties and what I submit is a proper consideration of all of the issues concerning the Hurley record of conversation, does warrant a grant of an extension of time for the short period that was necessary after the time expired.

PN573

In relation to the leave to cross appeal itself, I submit that whether leave to cross appeal is granted does not depend upon whether the cross appeal will necessarily succeed because if that was the case there would only be successful appeals where leave has been granted and no leave being granted and nothing in between. In my submission this is a proper case for the granting of leave and the consideration and then it’s consideration in upholding or dismissing that cross appeal. The principle reason why I put that submission forward is that on the face of the Commissioner’s decision below the record of conversation wasn’t taken into account of the harsh, unreasonable or unjust stage because there was no reference to it at all nor analysis of it until the issue of reinstatement.

PN574

SENIOR DEPUTY PRESIDENT LACY: Was it submitted that it should be taken into account in determining whether or not it was harsh, unreasonable or unjust termination of employment?

PN575

MR BROMWICH: Yes it was, definitely was in writing as well as orally. We didn’t provide the submissions they could be provided if needs be, but it was definitely submitted. In relation to the substance if you like of the cross appeal, sought to be brought, I don’t have the case that my friend referred to of Wheeler and Philip Morris but I was relying upon what the High Court had said in Byrne and Frew and Australian Airlines. I don’t know if copies need to be provided but they are available.

PN576

What Chief Justice Brennan, Justices Dawson and Toohey said in that case at page 430 of the decision at about point 6, is that the facts which existed at the time of dismissal but which came to light only subsequently might justify the dismissal and otherwise it would be harsh, unreasonable or unjust and so I rely upon that as a sentiment to a similar vein by Justices McHugh and Gummow at page 467.2, there’s a paragraph (iii), would it be of assistance to provide copies of Byrne and Australian Airlines?

PN577

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.

PN578

SENIOR DEPUTY PRESIDENT LACY: Just tell me again what was the part that you were referring to there? What was it you were saying?

PN579

MR BROMWICH: What their Honours, the Chief Justice and Justices Dawson and Toohey said the facts which existed at the time of dismissal but which came to light only subsequently might justify the dismissal when otherwise it would be harsh, unreasonable or unjust.

PN580

SENIOR DEPUTY PRESIDENT LACY: Yes, but justification in itself doesn’t necessarily mean that one is harsh, unreasonable or unjust, that goes more to the question of valid reason than it does as to whether the termination was harsh, unreasonable or unjust remembering of course that Byrne and Frew was dealing with a provision within an award as I recall.

PN581

MR BROMWICH: Sorry I read the decision last week again that was - - -

PN582

SENIOR DEPUTY PRESIDENT LACY: Yes, it was prohibition of awards.

PN583

MR BROMWICH: Yes, breach of statute award and the Commonwealth for damages for breach of contract and statutory duty that’s correct. But I didn’t understand – well I understood what the High Court was saying was following on from Arrowcrest that a bit like my learned friend said earlier, you can have someone sacked for some conduct of a particular kind and then subsequently you find that for example, they’ve been engaged in embezzlement, well you are entitled to take into account the embezzlement in deciding whether the actual decision was harsh, unreasonable or unjust.

PN584

SENIOR DEPUTY PRESIDENT LACY: You can certainly that in relation to the question of whether or not the termination was unlawful, whether the termination was unlawful but whether – well the authorities seem to suggest and particularly McLaughlin’s case suggests that you can’t take that sort of material into account in determining whether or not the termination of employment is harsh, unreasonable or unjust. It is certainly the case I think also in Arrowcrest really.

PN585

MR BROMWICH: I’ve got Arrowcrest here as well, perhaps I need to hand that up if I could provide that. Just turn to the appropriate passage. In Arrowcrest that is at 1990 volume 27 of Federal Court Reports 427 the particular passage was at page 456.

PN586

SENIOR DEPUTY PRESIDENT LACY: Again this is an award issue isn’t it?

PN587

MR BROMWICH: I didn’t understand that to be changing the principle. The example there was specifically given at about point 2L

PN588

The dismissal an accountant who had held in a position of trust where the employer could not be justified on the ground of dishonesty if it were discovered after the dismissal that he’d been systematically embezzling from the employer.

PN589

What I’m saying here is that this post decision material on the form of the Hurley record of conversation gives a different colour to all of the material that was before Mr Ney the assistant Commissioner Ney in making his decision, and is capable of rendering a decision which is otherwise harsh, unreasonable or unjust as being not so.

PN590

SENIOR DEPUTY PRESIDENT LACY: Yes, but see he talks there also in terms of justifying, you got McLaughlan’s case there at all?

PN591

MR BROMWICH: I have that is the one that was given up before.

PN592

SENIOR DEPUTY PRESIDENT LACY: There is no doubt that after finding facts would justify termination of employment, the question is whether or not it has any bearing on the termination being harsh, unreasonable or unjust.

PN593

MR BROMWICH: The print out that was given by my learned friend I think it’s picking up at page 6, it’s got the heading at the top of that page Byrne and Australian Airlines. Then at point 5 both of the judgments in Byrne cite Arrowcrest with approval and both support the proposition that facts in existence at the time of the dismissal which are only revealed later might justify dismissal which would otherwise be harsh, unjust or unreasonable. I took the words to be otherwise be harsh, unjust or unreasonable as changing that position.

PN594

SENIOR DEPUTY PRESIDENT LACY: What are you saying the other thing, even though it might be justified, it can still nonetheless be harsh, unjust or unreasonable?

PN595

MR BROMWICH: I guess I’m – it may be an exercise in semantics but I took the words which would otherwise be as being a transforming event a piece of evidence that changes the character of the decision that was made. Of course the next paragraph it would seem the obverse also applies, that is:

PN596

A fact which existed at the time of the dismissal which would only come to light after the dismissal may in some circumstances render the dismissal harsh, unjust or unreasonable –

PN597

I suppose you could have an example where on the face of it, it looked like somebody had embezzled, and then later information reveals that the person has been framed and it wasn’t them who did the embezzling, it was somebody else. It may be that I’m missing the point but I was reading both Byrne and Arrowcrest as supporting the one sentence paragraph in the middle of page 6 in this particular print out of McLaughlin, namely that the post information can have the effect of rendering something that was otherwise harsh, unreasonable or unjust as not being so. In any event that’s the submission I can’t really take it further.

PN598

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN599

MR BROMWICH: That is addressed in some detail in relation to what’s to be made of the Hurley record of conversation, I don’t believe I can usefully take that a great deal further. I just wanted to check on a number of points that actually may not have been adequately addressed. I suppose that one issue that still arises and it comes out of the appellant’s submissions in reply, particularly in paragraph 22(f) which refers to the submissions for the respondent paragraph 21. It’s just a bit unclear and perhaps needs some clarification as to what the appellant’s position actually is. The submissions proceed before this Full Bench on the basis that Mr Fletcher didn’t know who he was meeting, which seems to be an abandonment of what was being set out in the 8 February minute and a reversion back to what was being said initially and the difficulty from the AFPs point of view is that we now don’t really know which of the positions the appellant is adopting.

PN600

I think that was all I really wanted to say today, the point which I end on is the one that I start on and that is that the federal police have got the Hurley record of conversation, it is a document which on its face is able to be read in the way that the Commissioner below read it. Namely, that Hurley was saying that he had identified to Mr Fletcher who it was that he was meeting with and having regard to the exercise which the AFP need to carry out having regard to what is said in Perkins and the nature of the relationship, in all the circumstances the Commissioner’s finding that reinstatement was not appropriate is one that is not affected by error and is one that should not be overturned on this appeal.

PN601

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you Mr Bromwich.

EXHIBIT #AFP 2 STATEMENT OF PROSECUTION DISCLOSURE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PN602

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Moore.

PN603

MR MOORE: I think one of the matters just to start on goes to Mr Gray’s evidence and then I’ll just come back to the decisions and the two questions that were asked by his Honour Senior Deputy President Watson in relation to those paragraphs but can I just first of all, in terms of - my learned friend took the Full Bench to the supplementary appeal book, pages 432, 433 which recounted and in particular those paragraphs 20 through to 24 and then we would say also one needs to read 25, 26 because all of that - - -

PN604

COMMISSIONER REDMOND: What page did you say Mr Moore, I’m sorry?

PN605

MR MOORE: In the supplementary appeal book Commissioner commencing at 432, paragraph 20 this was the knowledge that Mr Gray obtained following his attendance at the New South Wales Crime Commission and the conversation with Mr Standen. One of the more interesting parts if I can direct attention to paragraph 24 as deposed:

PN606

I informed them of this incident in the knowledge that a larger investigation would be ongoing in relation to whether this event had any bearing on Michael Hurley being on the run.

PN607

Now that refers to:

PN608

As a result of the conversation I reported the matter to Professional Standards.

PN609

I think my friend suggested there was some question about the timing of when the complaint was made and what really is deposed is that the first Mr Gray learnt of this was on 2 May he said when he attended the New South Wales Crimes Commission and he had not been informed by either Professional Standards, that the report had gone in on 15 April, nor by Hardiman who reported directly to him that Fletcher had advised him of it on 14 April and so this became news to Mr Gray and he says – and my learned friend was trying to say well Mr Gray independent of everything else that was going, reported this separately or earlier in time.

PN610

In actual fact Mr Gray is aware we say by paragraph 24 that there were this wider investigation also being carried out which culminated in the first directive. Indeed, some further evidence of that overall in the case is taken to paragraph 25 in his cross-examination in the same appeal book at 692 and we go through all this with him, including paragraph 25 and particularly PN3229:

PN611

And just to get things clear is that the first time that you and federal agent Fletcher have a meeting face to face concerning the meeting with
Hurley?---That is my recollection yes.

PN612

That is the meeting that’s held on 20 May 2005. Now then he goes through and I won’t take the Bench to it at length but he goes through in terms of what occurred at that meeting and also what had preceded it. Now what he did not know was that Mr Fletcher himself had advised Professional Standards of his contact with Mr Hurley on 14 April by the proper disclosure within the AFP. We also say it becomes clear and my friend seems to be walking away from the evidence that Mr Neyy gave that the complaint which was the wider complaint, the one that you asked questions of Commissioner in terms of those two matters, was instituted by the New South Wales Crimes Commission.

PN613

There is no doubt about that Mr Ney had access to the file and was able to quite clearly identify who had raised the complaint which had caused the allegation to be made of criminal conduct because Mr Gray’s evidence in those references that I make made it quite clear that from a managerial point of view he had decided a particular course of action should be adopted in the knowledge that Mr Fletcher had met with Mr Hurley. Now the other aspects which – and I must say it was starting to get on the bizarre I thought the submission that my friend was making about this interpretation about the use the Commissioner made of the Hurley interview.

PN614

Quite simply we say if you have a look at it, the Commissioner starts after recounting all of the evidence at the appeal book for the appellant at page 56 paragraph 54 under the heading, conclusion and the first we say paragraph going to these matters that are important, is paragraph 59. The Commissioner actually discounts anything to do with the retired policeman as being a matter for the termination. The meeting with Mr Hurley is an indication of the applicant’s poor judgment it is said by Mr Ney.

PN615

But the reason for dismissal styled as a fundamental breakdown in the relationship is due to the AFPs belief that the applicant did not accept the seriousness of his failings and was unwilling to generally accept counselling.

PN616

There’s a clear identification of reason, he makes the observation the Commissioner at 62 last sentence, the communications by the solicitor were not helpful to the applicant. But concludes at 63:

PN617

However in my view the applicant’s letter, later correspondence of 8 February made his position clear. I find there was no valid reason to dismiss.

PN618

The final sentence:

PN619

There was insufficient basis for Mr Ney to have mistrusted and rejected what the applicant was saying in his reply of 8 February 2006.

PN620

Now that takes you directly to the 20 February letter and that is a complete rejection of the view of Mr Ney that the relationship had broken down. What you then come to I think is the question that was asked concerning paragraph 87 by his Honour Senior Deputy Watson, and this is, is the Hurley interview the only other matter that can give rise to the view going to reinstatement, in essence? Note the words in the final sentence:

PN621

The Hurley interview is an additional matter and I am entitled to consideration of Mr Bromwich’s submission that the Hurley interview further adds to the AFPs already existing view that they had lost trust and confidence in Mr Fletcher.

PN622

Now the view is rejected expressly we say in paragraph 64:

PN623

Insufficient basis to have mistrusted and rejected what the applicant was saying.

PN624

So you come to the Hurley interview my friend says it’s additive but really what you come to is this. Based on and it can’t be read in isolation from 84 – before I do that I’ll come to 83. My friend placed a great deal of stock on paragraph 83, all that 83 can be read as recounting in our respectful submission is that in that interview, if one reads it, Hurley said certain things. One of those things being he had identified himself to the applicant on the phone when arranging to meet the next day. In other words, it’s the same as one would recount you read an affidavit and said at paragraph x Mr X said this is what happened.

PN625

So we say 83, my friend says it took us by surprise that we were arguing about 83, no 83 is just a recital of what 84 leads to. 84 says:

PN626

In the circumstance I’ve considered that evidence –

PN627

That is the record of interview or record of conversation - I’ve considered what I’ve recounted at 83 we would say that is to be read:

PN628

The taped interview does not satisfy me that the applicant definitely knew that it had been Mr Hurley who had called him.

PN629

In other words, I’ve read what Mr Hurley says in his record of conversation, I’ve considered it, I form a particular view. It cannot be a view that says Mr Fletcher definitely knew. If that is right and that is the finding that is made, then there is nothing that founds the basis for the appeal by the AFP because it depends on a finding that Mr Fletcher lied or did not tell the truth. What we say the Commissioner did when he came to consider the record of conversation he considered quite clearly and said you cannot say that this man knew it was Mr Hurley and the problem as I said in the address this morning, is the next sentence:

PN630

It does however raise the possibility that perhaps he did know.

PN631

Now we said that mere possibility alone, should not be enough, the possibility of perhaps should not be enough to disentitle the primary remedy and without going this way and I think paragraph 25 the view is quite clearly expressed there that in taking into account whether a reinstatement is appropriate one has regard to the matters that are set out in subsection of 170CH. They are found in terms of the judgment in the decision at page 30 of the appeal book running from 73 through to 76. Firstly nothing was put that the AFPs viability is affected by any order:

PN632

The applicant has many years of service with the AFP and its predecessors but for the termination the applicant may have satisfied the concerns and continued to be employed and would have earned remuneration or he would not have and his earnings would then have been curtailed is therefore a difficult matter to assess in these circumstances

PN633

That is the requirement about continued employment:

PN634

The consideration the applicant’s evidence was that the circumstances of the dismissal prevented him from securing employment, he did make attempts, I am satisfied that the applicant’s made a real effort to mitigate as a result of the termination.

PN635

So he had a positive finding in his favour that he had tried to find work and could not. The position becomes as if he has rejected below the Commissioner, the view on which and the practice on which the alleged breakdown of the relationship is based. When it comes to consider the reinstatement he considers exactly the same matters in subsection (2) that founded the decision in subsection (1) because it’s mandatory that he applies them. So you can’t get two different results for the findings that are made. Indeed, to say it does however, raise the possibility that perhaps he did know, doesn’t get you any further in the inquiry. It in fact shows the error.

PN636

SENIOR DEPUTY PRESIDENT LACY: You say that on one view he couldn’t take into account the statement of Mr Hurley in considering the question that termination was harsh, unreasonable or unjust, but he could take that into account on the issue of remedy?

PN637

MR MOORE: Yes, if Mr Hurley had offered an opinion just bias aside, that Mr Fletcher was a corrupt officer and he gave examples of where the corruption had taken place and they were not known, well then let’s leave to one side the argument where they could be taking into account the justifiability or the lawfulness of the termination. But if you now had evidence that was probative that on such and such a day certain for example moneys passed or whatever, that would be a relevant consideration. It doesn’t get to that degree and can I just say that there is a way in which my friend approached the record of conversation and I’ll just deal with that point now and if I may come back, whilst it is in my mind.

PN638

If you turn to 155 of the appeal book, what my friend did was link question 41 and 42 together such as to make them a single conversation which had been the conversation of the phone call. One of the key little words there, or phrases Mr Hurley used “and we threw it around a bit”. After he goes through a bit of the – this is at question 42 second last line in the answer:

PN639

And we threw it around a bit.

PN640

If one goes over the page to question 57:

PN641

And you had a chat for a few minutes about this heroin business-

PN642

Indistinct:

PN643

-we had a chat for 20 minutes we had a cup of coffee sat down and threw it around.

PN644

Now what I’m saying it’s quite distinct here in terms of the answer at 57, that the throwing of things occur at the coffee shop not in the conversation on the telephone. What you are relying on as we put this morning in the submissions was:

PN645

So he understood that it was you, oh yeah I rang and told him.

PN646

The question is told him what, I’m Michael Hurley I want to talk to you, or I want to meet you at the coffee lounge, will you meet with me, undisclosed. Really that’s where we say it becomes terribly unsafe and unfair. Now I think the question if I understood it was that Senior Deputy President Lacy asked, can’t we take into account the way in which the Commissioner read the record of interview and took it into account in the question of remedy isn’t a factor he was entitled to take into account. What we are suggesting I suppose at the highest is this that if one reads the record of conversation or interview you can’t read it the way that the Commissioner seeks to read it.

PN647

So it’s and I think in answer to the question this morning I think we raised the question of possibility, and I said yes, it’s always possible that he might have known. But where do you get it to the requisite level of strength such as to turn a mere possibility into one that is cogent, probative evidence strong enough to satisfy the test that you can say that given the seriousness of the consequence of the decision to Mr Fletcher that the evidence is probative enough in terms of its context and content to justify the finding. Now if that was a finding it raises the possibility that perhaps he did know convert that just slightly to, the possibility that perhaps he did commit misconduct. In other words, the mere suspicion that he might have, it would be my respectful submission to the Bench that that would not justify any view of the Commission that that would be sufficient to justify a ground for termination.

PN648

We run against the High Court in Bushnel, mere suspicion is not enough, there has to be an actual repugnance in the dealing that occurs between the conduct that is alleged and proved and the conduct of the employee and what we say is when we look at that the Australian Federal Police had a view – and this comes down to 87 – the Australian Federal Police had a view that there was a breakdown in the relationship first communicated on 27 January by Mr Ney. By 8 February when Mr Fletcher had replied including saying I think this whole thing is getting out of hand, the Commissioner finds well it’s made clear and so for the Australian Federal Police to come back in the letter of 20 February and say well there’s still a breakdown of relationship, it’s wrong. He finds positively about that.

PN649

So it’s correct in what you are suggesting to my learned friend we would say Senior Deputy President Watson, the only matter can be the interview. They had a view and now they say this other matter reinforces the view. The problem with that, not one person from the AFP, Mr Ney or otherwise came and said, this causes us a problem. There’s not one bit of evidence that says it causes us a problem. You would expect at a minimum, they would come with an affidavit or as part of their case, and say we’ve now got this other bit of information and it causes us this problem because. Absolute silence except when it comes to submissions and they say you can have a look at this, this reinforces the view.

PN650

Then we’ve got the security clearance and then we’ve got a bit by Grey and The Queen I should say. That is a matter that’s put as I think Commissioner Redmond identified, my friend puts it to Mr Fletcher and says I put it to you telling me a porky or a story, or you are being inconsistent, and he denies it. His statements ring true we say when you look at the evidence, there’s no inconsistent statements. We say that an error has been committed of the kind that would allow the Commission to intervene and we say it’s of a kind similar to the matter that arose in Swain. It arises in the same way as identified in Swain that is there is not enough evidence probative to justify the denial of reinstatement.

PN651

It’s never been doubted reinstatement is the primary remedy, it is only when that is not appropriate when one considers other matters and everything about we would say Mr Fletcher as such, in particular when you take into account the same factors over the years, the 34 history of employment is a quite major factor, we say that would unless there is something highly unusual about this case, that would mitigate against it. Indeed we seem to appreciate if reliance is placed on Perkins in particular and the passage that was read out if you’ve had a man – my friend all the difficulties that the federal police have had, if you’ve had a man in your service for 34 years and you’ve had no reason to doubt him until now and we say even that doubt is so tenuous it’s not really a doubt, you don’t’ come within Cooee within of the relative uncommon situations referred to in Perkins that for in terms for example, the life of the employer or some other person, might depend on the reliability of the terminated employee.

PN652

There is nothing to show that he’s been unreliable apart from this one incident, even if it’s view at that height. There is nothing to show that in the period of 34 years, heading strike teams, dealing with major information, at top secret level or below, there has been any leak. Indeed, if we are to regard Mr Hurley as a witness of truth, Mr Hurley tells us that Mr Fletcher is an honest copper and has told him when he has raised matters with him concerning I think it would be in a context of a bribe as to whether you’ve ever offered money to Mr Fletcher, if I get the chance I’ll lock you up for 20 years, words to that effect.

PN653

Now this is the person and that’s the type of person that seeks to be impugned in this case, there’s no evidence he is going to be a risk to anyone. The only person he created a risk about in this whole proceeding and he admitted it, in terms of when you get to 8 February and he is begging for a job to show cause after 34 years, is he accepts he might have opened himself up to risk in terms of safety. There’s no suggestion even I know that he was put at risk. Quite simply it’s a matter that warrants the view to correct the errors that we’ve identified. Unless there’s something further that I can assist the Bench with that’s all I need say in reply.

PN654

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you Mr Moore. We will reserve our decision thank you.

<ADJOURNED ACCORDINGLY [3.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F1 APPELLANT’S OUTLINE OF SUBMISSIONS PN3
EXHIBIT #F2 OUTLINE OF SUBMISSIONS IN REPLY PN3
EXHIBIT #AFP 1 AFP MATERIALS PN3
EXHIBIT #AFP 2 STATEMENT OF PROSECUTION DISCLOSURE OF THE DIRECTOR OF PUBLIC PROSECUTIONS PN601