Crime and Corruption Commission v Acting Deputy Commissioner Wright & Anor [2022] QCAT 243

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Acting Deputy Commissioner Wright & Anor [2022] QCAT 243 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ACTING DEPUTY COMMISSIONER D A WRIGHT and BJB (respondents) APPLICATION NO/S: OCR288-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 27 June 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: 1. The decision on sanction imposed by Acting Deputy Commissioner D A Wright, namely that BJB is to complete 40 hours of community service at a Police Citizens Youth Club within a period of 12 months, is confirmed. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether sanction imposed for misconduct should be changed Crime and Corruption Act 2001 (Qld), s 219G, s 219H Penalties and Sentences Act 1992 (Qld), s 69 Police Service Administration Act 1990 (Qld), s 1.4, s 7.1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20 Acreman v Deputy Commissioner Pointing [2021] QCAT 133 Aldrich v Ross [2001] 2 Qd R 235 BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448 Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 -- 1 of 7 -- 2 Crime and Misconduct Commission v Deputy Assistant Commissioner Brian J A Wilkins & Anor v Gunter (No 2) [2021] QCATA 42 Peat v Lin & Ors [2005] 1 Qd R 40. Police Service Board v Morris (1985) 156 CLR 397 Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] BRB is a Sergeant in the Queensland Police Service. He faced four allegations of misconduct under the Police Service Administration Act 1990 (Qld) (‘the PSA Act’). Acting Deputy Commissioner D A Wright heard the charges against BRB. He found that each of the allegations were substantiated. [2] The first three allegations of misconduct were the subject of review by the Tribunal in BJB v Acting Deputy Commissioner Wright & CCC.1 On 24 June 2021, the Tribunal found that these three allegations were not substantiated. [3] The fourth allegation was admitted by BJB. The details of the allegation are as follows: On 13 November 2017 at Brisbane your conduct was improper in that whilst off duty, you accessed official and confidential information on the Queensland Police Service Computer system without an official purpose relating to the performance of your duties. Further and better particulars • Investigations have identified that on 9 November 2017 you commenced sick leave but retained possession of your Qlite device; • On 13 November 2017 you inappropriately accessed information relating to [omitted] whilst on sick leave; and • The access was not in connection with an official purpose relating to the performance of your duties. [4] Acting Deputy Commissioner Wright decided to impose a sanction in respect of this allegation of 40 hours of community service at a Police Citizens Youth Club to be completed within a period of 12 months. [5] The issue presently before the Tribunal relates to the sanction imposed by the Acting Deputy Commissioner. 1 [2021] QCAT 448. -- 2 of 7 -- 3 Role of the Tribunal [6] Pursuant to s 219G and s 219H of the Crime and Corruption Act 2001 (Qld) and s 17 to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal’s function on review is to ‘bring the public perspective to bear on the disciplinary process’2 and ‘produce the correct and preferable decision on the evidence … that was before the decision-maker’,3 subject to the admission of new evidence by leave of the Tribunal. [7] The purpose of police disciplinary proceedings in Queensland are set out in s 7.1 of the PSA Act as follows: The main purposes of this part are – (a) to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and (b) to ensure appropriate standards of discipline are maintained within the service to – (i) protect the public; and (ii) uphold ethical standards the service; and (iii) to promote and maintain public confidence, and officers’ confidence, in the service. [8] As the High Court said in Police Service Board v Morris,4 the effectiveness of police in protecting the public relies upon public confidence in the integrity of its members, and that internal discipline is the primary means of ensuring individuals do not jeopardise public confidence. Joint submissions of the CCC and BRB [9] BJB and the CCC have jointly proposed a sanction of three penalty units in the present case. [10] The matters which are said to support the imposition of a sanction of three penalty units are: a) The Applicant searched one name on his Qlite device after checking his email whilst on sick leave. This email identified the name of a suspect in relation to an offence of wounding where the complainant was a fellow police officer. The Applicant believed he had arrested a person of the same name some two months earlier and conducted a search on the name with a view to assisting the investigation. b) The conduct involved one search only in relation to one person. 2 Aldrich v Ross [2001] 2 Qd R 235, 257-258; Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590, [15]. 3 Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510, [11]. 4 (1985) 156 CLR 397, 412 (Brennan J). -- 3 of 7 -- 4 c) Had the Applicant not been on sick leave, it is submitted that the search would have been lawful and in connection with his official police duties. d) The Applicant had no personal connection to the name of the person whose name he searched. He did not conduct the search out of curiosity or due to a personal interest in the person. Rather, he believed he could assist police with their investigation. e) The Applicant received no benefit or gain from conducting the search nor was the search conducted to obtain a benefit or gain. f) The Applicant did not disclose any information resulting from the search ot any person or body. g) The Applicant has no disciplinary history of unlawfully accessing the QPS computer database (‘QPRIME’). h) The Queensland Police Service conducted an audit on the Applicant’s access and usage of QPRIME and did not identify any other unlawful accesses. [11] The joint submission also outlines details of BJB’s health matters. On 9 November 2017, BJB was declared unfit for work as a result of depression. Between that date and 15 June 2018, he was in receipt of workers’ compensation payments due to stress, anxiety and depression. [12] BJB was also in receipt of workers’ compensation payments between 2 March 2019 and 30 September 2019 due to a torn bicep. [13] BJB was subsequently involved in a motorcycle accident on 21 March 2020 while working for the Queensland Police Service, during which he received a fractured patella and chipped femur requiring surgery, multiple fractures to his right wrist requiring the surgical intervention of a titanium plate and seven screws, a lacerated liver, fractured rib and severe bruising. He returned to work in February 2021. [14] While BJB could have commenced community service between 30 September 2019 and 21 March 2020, he was subsequently unable to complete the sanction within the 12 months required due to his motorcycle accident. Submission of Acting Deputy Commissioner Wright [15] Acting Deputy Commissioner Wright submitted that the current sanction of 40 hours of community services at a Police Citizens Youth Club within a period of 12 months is the correct and preferable decision. Consideration [16] ‘Misconduct’ is defined in s 1.4 of the PSA Act to mean conduct that: (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. -- 4 of 7 -- 5 [17] In relation to accessing personal information for non-official purposes, the Tribunal stated in Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No 2):5 Neither the provisions of the Police Service Administration Act 1990 (Qld)56 nor the common law concerning the duties of constables confers a power upon police officers to undertake investigation of suspected criminal offences at their own whim without regard to the hierarchy of police service command. Even if Sergeant Gunter’s explanation for his QPRIME inquiries regarding other persons is accepted at face value, such inquiries were not in the performance of his duties as a police officer. He was not allocated such investigations by his superior officers and did not seek the permission of his superior officers to conduct such investigations. Sergeant Gunter’s status as a police officer did not confer upon him an unlimited power to investigate suspected criminal offences as he saw fit. In the absence of authorisation of his investigations by his superiors, the QPRIME inquiries cannot reasonably be regarded as being with an official purpose in the performance of his duties as a police officer. In the circumstances of this matter, it was not reasonably open to the learned Member to find otherwise. … The Standard of Practice clearly provides that members are not to access, use or release information without an official purpose related to the performance of their duties. … The requirement that QPS members only access information on the QPS system as provided in the Standard of Practice for an official purpose related to the performance of their duties is critical to maintaining public confidence in the police force and the safeguard of official and confidential information retained on the QPS systems such as QPRIME. Further to that, the public expects that members of the QPS only access information for an official purpose related to their duties. … We determine that the Standard of Practice provides a set of guiding principles and standards to assist members in determining an acceptable standard of conduct. The Standard of Practice is to be read as a whole. The purpose of discipline reflected in the Standard of Practice, is the maintenance of public confidence in the police service, of self-esteem of police officers and efficiency. Further to that, the requirement in the Standard of Practice that members of the Service access or release information for an official purpose related to the performance of their duties is critical to ensure the safeguarding of official and confidential information on the QPS systems such as QPRIME and to maintain public confidence. [18] Similarly, the Tribunal stated in Acreman v Deputy Commissioner Pointing:6 Whether or not Mr Acreman had a duty as a police officer to take any action arising out of the incident which occurred when he was off duty was considered by the learned Member. She referred to a number of cases which considered the 5 [2021] QCATA 42, [63], [66], [73] and [101]. 6 [2021] QCATA 133, [45]-[46] (footnotes omitted). -- 5 of 7 -- 6 responsibilities of a sworn police officer when off duty. The learned Member concluded that: The question of whether the particular circumstances justify an off-duty officer to take appropriate action to protect the public is one of fact and degree because it requires an exercise on judgment and action. More importantly, the off-duty officer must exercise his or her judgment or to be satisfied (sic) that the circumstances justify appropriate action to protect the public. The learned Member said by reference to Peat v Lin & Ors that the case was helpful, in particular: [33] I find that an off-duty police officer does have a duty to the public to ensure the protection of public safety. As held in Peat’s case, an off- duty officer is not required, however, to intervene in any situation to which police who are on duty might be called. The duty to act when off duty will therefore depend on the particular circumstances that the off- duty officer finds himself or herself in. More importantly, whether the particular circumstances justify appropriate action being taken by the off- duty officer to protect the public and where such action taken is afforded protection under the PSA Act. [19] I acknowledge that BJB was involved in a serious motorcycle accident while working for the Queensland Police Service. This is an example of the risks that police officers face daily in serving and protecting the public. [20] I also acknowledge that, unlike many other matters involving access to QPRIME for unofficial purposes, BJB had no personal connection to the person whose name he searched, and the search was not conducted out of personal curiosity or interest with respect to someone he knew. [21] However, BJB was on sick leave and not on duty at the time he carried out the search. If he wished to assist with the investigation as claimed, there were various alternatives open to him. For example, he could have responded to the email which he received to advise of his suspicion. Alternatively, he could have contacted his officer in charge or another officer on duty. As held in Peat v Lin & Ors,7 while off duty, an officer is not required to intervene in any situation to which police who are on duty might be called. The misconduct in this case could have easily been avoided had BJB availed himself of one of these alternatives. [22] A sanction of three penalty units would amount to a fine of $431.25. I note that s 69 of the Penalties and Sentences Act 1992 (Qld) provides that one penalty unit is equivalent to a maximum of five hours of community service, such that three penalty units would be equivalent to 15 hours of community service. In my view, such a sanction would be inadequate to serve as a deterrence to BJB and other officers about the importance of maintaining and keeping safe confidential information held on the QPS computer system. [23] I have considered imposing a sanction of eight penalty units in place of 40 hours of community service. However, I consider that the purposes of the disciplinary 7 [2005] 1 Qd R 40, [33]. -- 6 of 7 -- 7 proceedings would be best met by BJB making a valuable contribution to a Police Citizens Youth Club rather than a fine. [24] I am satisfied that the current sanction of 40 hours of community service at a Police Citizens Youth Club within a period of 12 months reflects the seriousness of the accepted misconduct; the purposes of disciplinary proceedings; and adequately addresses issues of personal and general deterrence. Disposition [25] The decision on sanction will be confirmed. -- 7 of 7 --