Crime and Corruption Commission v Shearer [2022] QCATA 182

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Shearer [2022] QCATA 182 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant/appellant) v NAOMI C’ANN SHEARER (respondent) APPLICATION NO/S: APL196-21 ORIGINATING APPLICATION NO/S: OCR024-20 MATTER TYPE: Appeals DELIVERED ON: 21 December 2022 HEARING DATE: 24 August 2022 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: 1. In relation to grounds 1 and 3 of the application for leave to appeal or appeal, leave to appeal is refused. 2. The appeal is otherwise dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where a breath test was not administered to a driver at a vehicle interception as a result of statements made by the respondent police officer – where the appellant applied to the Tribunal for a finding of corrupt conduct and a sanction of dismissal – where the Tribunal at first instance found that the respondent police officer had engaged in corrupt conduct at the vehicle interception – where the Tribunal at first instance found that dishonesty had not been established in relation to a subsequent interview given by the respondent – where appeal raises question of law and question of mixed fact and law – whether the Tribunal at first instance erred in its finding in relation to dishonesty in the subsequent interview – whether the Tribunal at first instance erred in its interpretation of s 15(1) of the Crime and Corruption Act 2001 (Qld) Crime and Corruption Act 2001 (Qld), s 15 -- 1 of 9 -- 2 Independent Commission Against Corruption Act 1988 (NSW), s 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Berry v Treasure [2021] QCATA 61 Burke v Commissioner of Police [2019] QCA 158 Crime and Corruption Commission v Assistant Commissioner Paul Taylor & Anor [2018] QCAT 80 Crime and Corruption Commission v Shearer [2021] QCAT 215 Duncan v Independent Commission Against Corruption [2014] NSWSC 1018 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 Pickering v McArthur [2005] QCA 294 Springfield v Duncombe [2017] NSWCA 137 Warren v Coombes (1979) 142 CLR 531 APPEARANCES & REPRESENTATION: Appellant: MJ Copley, of Counsel, instructed by the appellant Respondent: JR Hunter QC, instructed by Gnech & Associates REASONS FOR DECISION [1] This is an appeal from a decision of the Tribunal in relation to a police disciplinary matter. The appellant was the applicant before the Tribunal at first instance. The Tribunal at first instance considered three disciplinary charges of corrupt conduct. A central issue on the appeal is the proper interpretation of s 15(1) of the Crime and Corruption Act 2001 (Qld) (‘the CC Act’), which defines the term ‘corrupt conduct’; in particular, the meaning of the term ‘conduct … that … could adversely affect’ the performance of functions or exercise of powers and the term ‘conduct … that … could result’ in the performance of functions or exercise of powers that ‘is not honest or is not impartial’. [2] The events giving rise to the charges are set out in the Tribunal’s reasons:1 [2] On 5 December 2018 the respondent Detective Senior Constable Shearer pleaded guilty to an offence of Refusal by Public Officer to Perform Duty (Criminal Code Act 1899 (Qld), Schedule 1 s 200). The offence arose out of an event on 27 July 2016 when the respondent engaged in conduct as an aider, which caused a breath test not to be conducted in respect of a driver. [3] The events on 27 July 2016 occurred when two uniformed police officers, Senior Constable Blunt and Constable Walsh, required assistance when confronted with the prospect of administering a breath test to a Victoria police officer on holiday on the Sunshine Coast. The police officers called for 1 Crime and Corruption Commission v Shearer [2021] QCAT 215, [2]-[4]. -- 2 of 9 -- 3 assistance. The respondent, and her colleague Senior Constable Evans, responded as they were nearby. [4] As a result of statements made by the respondent a breath test was not administered to the driver. [3] The appeal relates to the findings of the Tribunal in relation to disciplinary charges 2 and 3, the respondent not having contested charge 1. However, it is useful to set out the particulars and findings of the Tribunal at first instance in relation to charge 1. Charge 1 [4] Charge 1 alleges corrupt conduct, the particulars of which were: 1. On 27 July 2016, and at all other relevant times, Naomi C’Ann Shearer was a sworn member of the Queensland Police Service. 2. On 27 July 2016 Naomi C’Ann Shearer attended in response to a call for assistance at a vehicle interception. 3. During the course of the interception, Naomi C’Ann Shearer engaged in conduct which caused a breath test not to be conducted in respect of Kevin Anthony Perry. [5] In relation to charge 1, the Tribunal Member noted that the facts as described were not in dispute and found that they occurred as described.2 In accordance with the submissions made by the applicant, the Tribunal at first instance found that:3 (a) Pursuant to section 20 of the CC Act the police service is a unit of public administration. (b) The respondent’s conduct directly or indirectly adversely affected the performance of a QPS function of performing a roadside breath test. (c) The respondent’s conduct caused the breath test not to be conducted, and resulted in performance of police functions and powers in a way that was not honest or impartial and/or involved a breach of the trust placed in the respondent as an officer of the QPS. This type of conduct undermines the public confidence in the QPS. (d) It has been established that the respondent’s conduct is a criminal offence – that of Refusal of a Public Officer to Perform a Duty. [6] It was found that these factors satisfied the definition of ‘corrupt conduct’ under s 15(1) of the CC Act.4 Charges 2 and 3 and grounds of appeal [7] Charges 2 and 3 also allege corrupt conduct under s 15(1) of the CC Act. In both cases, the charges relate to an interview of the respondent conducted by Inspector Mike Miley on 2 August 2016. It is alleged that the respondent was dishonest in stating: My intent was not to give advice or tell her what she should do or shouldn’t do (Charge 2).5 2 Ibid, [15]. 3 Ibid, [18]. 4 Ibid, [19]. 5 In relation to an amendment of the particulars of charge 2, see transcript 24 August 2022, 1-4 L1-23. -- 3 of 9 -- 4 The only input I had – the only advice I did give on the night that was meant as advice was to move the vehicles because I thought the vehicles were in an unsafe area (Charge 3). [8] In relation to charges 2 and 3, the Tribunal at first instance found that dishonesty had not been established.6 [9] In relation to those charges, the Tribunal Member also agreed with the submission of the respondent that, in terms of s 15(1)(b) of the CC Act, it had not been identified how the alleged dishonesty could have resulted in the conduct of the investigation or interview in a way that was ‘not honest’.7 In that context, it noted that the focus of s 15(1) is the impact of the alleged dishonesty on, in this case, the interviewer; whether it results or ‘could result’ in the performance of their functions in a way that is not honest or is not impartial. [10] The term ‘corrupt conduct’ is defined in s 15 of the CC Act and at s 15(1) provides: Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that – (a) adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of – (i) a unit of public administration; or (ii) a person holding an appointment; and (b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that – (i) is not honest or is not impartial; or (ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or (iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and (c) would, if proved, be – (i) a criminal offence; or (ii) a disciplinary breach providing reasonable ground for terminating the person’s services, if he person is or were the holder of an appointment. [11] The grounds of appeal are that the Tribunal erred in: (a) Ground 1: failing to be satisfied that the respondent was dishonest in each way particularised for charge 2 and charge 3. (b) Ground 2: its interpretation and application of s 15 (in relation to charges 2 and 3). 6 Crime and Corruption Commission v Shearer [2021] QCAT 215, [52]. 7 Ibid, [54]-[56]. -- 4 of 9 -- 5 (c) Ground 3: failing to be satisfied that the conduct would if proved at least be a disciplinary breach providing reasonable grounds for terminating the respondent’s services (relating to s 15(1)(c)(ii) of the CC Act). Ground 1 [12] Ground 1 of the appeal is that the Tribunal erred in failing to be satisfied that the respondent was dishonest in each way particularised for charge 2 and charge 3. This ground concerns what is said to be the proper inference to be drawn from undisputed primary facts. [13] It is accepted by the appellant that this ground raises a question of fact or mixed question of law and fact, so that leave to appeal is required.8 Generally, leave will only be granted where it is necessary to correct a substantial injustice, or there is a question of general importance upon which further argument and a decision of the appellate court or tribunal would be to the public advantage, and where there is a reasonable argument that there is an error to be corrected.9 [14] The appellant submits that leave should be granted because the issue of whether a police officer has engaged in corrupt conduct pursuant to s 15 of the CC Act is a matter of public interest. However, that would mean that leave should be given in every case involving s 15 of the CC Act, regardless of the circumstances or merits of the case. On the other hand, the object of s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which requires leave, is to limit appeals that raise questions of fact or mixed law and fact. [15] The alleged dishonest statements go to the respondent’s state of mind; her own assessment of what she intended in relation to any suggested advice given. The appellant states that the primary facts from which the Tribunal was asked to draw an inference of dishonesty were not in dispute. It is submitted that the dishonesty is evident when the two statements, the subject of charges 2 and 3, are compared to the entirety of the respondent’s statements. [16] In Warren v Coombes,10 the majority of the Court stated: [I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from the facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it. [17] The question of dishonesty was carefully considered by the Tribunal Member at [20] to [52] of the reasons for the decision, and included consideration of video footage recorded on a body worn camera as well as detailed analysis of what was said by the various officers at the time of the vehicle interception incident. No specific error in that regard is pointed to by the appellant. Rather, the appellant merely asserts that the dishonesty is evident when the respondent’s statements, the subject of the charges, are 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b). 9 Pickering v McArthur [2005] QCA 294; Burke v Commissioner of Police [2019] QCA 158, [10]-[11]; Berry v Treasure [2021] QCATA 61, [13]. 10 (1979) 142 CLR 531, 551. See also Springfield v Duncombe [2017] NSWCA 137, [13]-[20]. -- 5 of 9 -- 6 compared to the entirety of the respondent’s statements. There was no specific indication in the written or oral submissions as to how or where that is evident. [18] In relation to ground 1 of the appeal, the indicia for granting leave to appeal, as noted above, have not been established. Leave to appeal is refused. Ground 2 [19] Ground 2 of the appeal is that the Tribunal at first instance erred in its interpretation and application of s 15 of the CC Act. This raises a question of law. The parties agreed that if ground 1 of the appeal fails then it won’t avail the appellant to establish an error of law on ground 2 of the appeal. Nevertheless, it is appropriate that the Appeal Tribunal consider ground 2. [20] In relation to this ground of appeal, the question is the proper meaning of the terms ‘could adversely affect’ and ‘could result’ in the definition of ‘corrupt conduct’ at s 15(1) of the CC Act. In part, that definition provides (emphasis added): Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that – (a) adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of – (i) a unit of public administration; or (ii) a person holding an appointment; and (b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that – (i) is not honest or is not impartial; or (ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or (iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; [21] The charges relevant to grounds 2 and 3 of the appeal relate to an interview of the respondent conducted by Inspector Mike Miley. It is submitted by the appellant that the alleged dishonesty on the part of the respondent could have adversely affected the performance of functions or the exercise of powers of Inspector Miley. In particular, it is submitted:11 The dishonest statements could have deflected the investigation towards a closer examination of Blunt’s conduct to the detriment of the investigation of the respondent’s conduct. … An outcome which is not honest is at least an outcome which is not true. … The respondent’s dishonest statements could have engendered doubt in the minds of 11 Appellant’s outline of submissions, [18]-[20]. -- 6 of 9 -- 7 those investigating with the result that a disciplinary charge was not proceeded with. [22] A provision analogous to s 15 of the CC Act was considered by the High Court of Australia in Independent Commission Against Corruption v Cunneen.12 Under s 8 of the Independent Commission Against Corruption Act 1988 (NSW), at sub-section 8(1)(a), ‘corrupt conduct’ is, in part, defined as: any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, [23] In Cunneen, the majority of the Court stated: [2] ‘Adversely affect’ is a protean expression. In this context, however, there are only two possibilities. Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case. [3] The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act as set out in s 2A. The latter would result in the inclusion in ‘corrupt conduct’ of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would also enable the Independent Commission Against Corruption ("ICAC") to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act. For those reasons, and the reasons which follow, the former meaning is to be preferred. [24] The majority, at [52], listed a number of factual scenarios that could be included in the definition of ‘corrupt conduct’ if it were sufficient for the conduct to adversely affect the efficacy of the exercise of an official function, which would ‘have nothing to do with corruption in public administration as that concept is commonly understood’. [25] Similarly, s 15(1)(b) of the CC Act is framed in terms of impacting the performance of functions or the exercise of powers in a way that ‘is not honest or is not impartial’. The focus of that sub-section is on the impact or potential impact of the conduct on the honesty or impartiality of those who are performing the function or exercising the power, rather than, more generally, on any process outcome. [26] As submitted by the respondent, the appellant has not identified how the respondent’s conduct could have resulted in the investigation being performed in a way that was not honest or impartial. Rather, in relation to the question of honesty, the focus of the appellant’s submissions was on the alleged state of mind of the respondent and then 12 (2015) 256 CLR 1. -- 7 of 9 -- 8 on how that might have affected the efficacy of the performance of the function or exercise of powers. [27] It is separately submitted by the appellant that if there is any possibility at all of a relevant adverse effect then the conduct ‘could’ adversely affect the performance of functions etc. within the meaning of s 15(1)(a) of the CC Act. [28] In that context, it is submitted that the Tribunal Member erred in concluding, at [56] of the reasons for decision, that ‘the possibility the impugned statements could adversely affect the performance of the QPS functions is so low as to be discounted’. It was submitted that ‘even if the prospect of affecting the result was less than significant that was sufficient for satisfaction of the s 15(1)(b) element’. [29] The respondent refers to Duncan v Independent Commission Against Corruption,13 where, with reference to the term ‘could’ adversely affect in s 8 of the NSW legislation, noted at [22] above, the Court stated that it refers to ‘possibility’ rather than futurity and added, at [76]: The inquiry required by s 8(1), (2), is fact-driven. It requires … that the facts be found. But the ascription of the statutory character or consequences to those facts (that they do, or could, adversely affect the exercise of official functions) requires more than the establishment of the facts. It requires, also, some understanding of the functions, the exercise of which might be adversely affected. If it were otherwise, it would not be possible to say that some link existed between the conduct and those functions. And if that link could not be described, there would be no rational basis for characterising it in the terms that the subsections require. [30] Given that it must be shown that the conduct in question could adversely affect the probity of the exercise of the function or exercise of power, t he difficulty in the present case is that the appellant has not identified how the respondent’s conduct could have resulted in the investigation being performed in a way that was not honest or impartial. In terms of what was said in Duncan, there is no evident link between the conduct of the respondent and how it could have resulted in the performance of functions or exercise of powers in a way that is not honest or not impartial. [31] This ground of appeal is rejected. Ground 3 [32] Ground 3 of the appeal is that the Tribunal erred in failing to be satisfied that the conduct would if proved at least be a disciplinary breach providing reasonable grounds for terminating the respondent’s services. This ground relates to the additional requirement for the establishment of ‘corrupt conduct’ set out in s 15(1)(c)(ii) of the CC Act: see [10], above. It is based on the reasons for decision of the Tribunal at first instance, at [53], where the Tribunal Member noted the submission of the applicant that the alleged dishonesty could have had a number of consequences, including, at [53](g): The actions are so gross as to result in grounds for terminating the respondent’s employment. I do not consider that the making of the statements when put in context and when read together with the acknowledgement as to the effect of the respondent’s conduct could be sufficient to justify termination of 13 [2014] NSWSC 1018. -- 8 of 9 -- 9 employment. Bearing in mind that I have found the statements were not dishonest. [33] As with ground 1, it is agreed that this third ground of appeal raises a question of fact or mixed question of law and fact, so that leave to appeal is required. [34] As is noted in the above extract from the reasons for decision, the conclusion of the Tribunal Member in this regard was based on a finding that the statements were not dishonest. On appeal, the submission of the appellant proceeded on the assumption of a finding that the respondent had been dishonest and, in that event, police officers who have been found to be dishonest in their answers in disciplinary proceedings have been dismissed, as exemplified by the decision in Crime and Corruption Commission v Assistant Commissioner Paul Taylor & Anor.14 [35] Given the finding of the Tribunal at first instance and the conclusion of the Appeal Tribunal on the question of honesty, no relevant error arises and, in that context, nor has any error been pointed to. Accordingly, leave to appeal on this ground is refused. [36] Leave to appeal in relation to grounds 1 and 3 of the appeal is refused. The appeal is otherwise dismissed. 14 [2018] QCAT 80. -- 9 of 9 --