REVIEW DECISION

Application to review DISMISSAL –– s.146(1)(m) of the Victoria Police Act 2013 –– Decision to dismiss made under section 132(1)(h) following breach of discipline (disgraceful conduct) being found proven –– allegation that police officer exposed his erect penis during a waxing treatment to a beauty therapist –– Board decided to use of pseudonyms for all parties and agreed to non-publication of certain private information –– approach to considering evidence, Briginshaw, balance of probabilities, onus of proving charge discussed –– removal of particulars of charge, previous allegations not relevant or relied upon –– key elements to substantiate the charge of disgraceful conduct discussed (exposure; indecency; intentional; reasonable person would anticipate offence, humiliation, intimidation) –– allegations as elicited from the Affected Person were ambiguous and inconsistently given as to movement of the towel and  how the exposure occurred –– Manager’s account of first complaint not consistent with intentional exposure –– the evidence as a whole was equally consistent with the exposure of his penis being unintentional and unknowing, such that it is possible both witnesses were truthful –– significant findings of fact made by Inquiry Officer without proper evidentiary basis –– allegations put to the Applicant inaccurately during the investigation and the Inquiry, and included allegations which were not made, such that unfair to conclude dishonesty from his denials –– evidence does not establish the Applicant wilfully disobeyed an instruction to not remove underwear before waxing treatment –– complaint not malicious nor concocted –– factors said by Inquiry Officer to characterise behaviour as ‘predatory’ are only evidence of such if intentional indecent exposure also found to have occurred, and are not independently probative of that exposure having occurred ––  other factors going to an assessment of credibility considered (consistency within and between accounts; possibility of misinterpretation as to intentionality; lack of any associated lewd comments or gestures; Applicant’s behaviour before and after waxing consistent with inadvertent and unknowing exposure; inherent unlikelihood of targeting therapist when family members clients of the Spa; previous good character) –– in the absence of being comfortably and reasonably satisfied on the balance of probabilities that either: a) the Applicant had an erection, or b) that the exposure of his penis was intentional or known to him, the Board concludes the charge of ‘disgraceful conduct’ was not proven ––  Board finds the dismissal was harsh, unjust and unreasonable –– hearing adjourned for further submissions as to the order to be made under section 152(3)(b).

Interim decision

The Board concludes that the dismissal was harsh, unjust and unreasonable as the charge was not proven to the required standard of proof; in particular, it was not proven that the exposure of the Applicant’s penis was intentional and known to him. The hearing of the review is adjourned to a date to be fixed for the making of further submissions on the question of the order to be made pursuant to section 152(3)(b).

Addendum and Order (7 August 2019)

Pursuant to section 152(3)(b)(i) of the Victoria Police Act 2013 (the Act) the Police Registration and Services Board sets aside the determination made on 25 February 2019 under section 132 (1)(h) of the Act to dismiss the Applicant and, in substitution for it, decides (pursuant to section 132(1)) that the charge of breach of discipline (disgraceful conduct) laid against the Applicant under section 125 of the Act is found not proven.