Crime & Corruption Commission v Newman & Anor [2022] QCATA 82

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime & Corruption Commission v Newman & Anor. [2021] QCATA 82 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant/appellant) v HELEN NEWMAN DEPUTY COMMISSIONER TRACY LINFORD (respondent) APPLICATION NO: APL288-20 ORIGINATING APPLICATION NO/S: OCR246-19 OCR247-19 MATTER TYPE: Appeals DELIVERED ON: 30 May 2022 HEARING DATE: 24 June 2021 HEARD AT: Brisbane DECISION OF: Senior Member Howard ORDERS: 1. The appeal is dismissed. CATCHWORDS: APPEALS – OCCUPATIONAL REGULATION – POLICE OFFICERS – DISCIPLINE – appeal of disciplinary sanction of demotion – whether sanction inadequate – whether Tribunal took into account irrelevant considerations – whether Tribunal made findings of fact unsupported by evidence. Police Service Administration Act 1990 (Qld) s 7A.2 Crime and Corruption Act 2001 (Qld) s 219Q(1) s 219Q(2) Anderson v Crime and Corruption Commission & Anor [2021] QCATA 68 Beaven v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542. Briginshaw v Briginshaw (1938) 60 CLR 336 Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169 Chairman, National Crime Authority v Flack (1988) FCR 16 Deputy Commissioner Stewart v Dark [2012] QCA 228 Ericson v Queensland Building Services Authority [2013] QCA 391 Flack v Chairperson, National Crime Authority (1997) 80 FCR 137 -- 1 of 14 -- 2 CCC v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 Flegg v Crime and Misconduct Commission [2014] QCA 42 Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 Jones v Dunkel (1959) 101 CLR 298 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lee v CCC & Anor [2014] QCATA 326 Lee v Crime and Corruption Commission [2020] QCA 201 Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55 Newman v Deputy Commissioner Linford APM & Anor (No 2) [2020] QCAT 328 Re Bowen [1996] 2 Qd R 8 APPEARANCES & REPRESENTATION: Applicant: Gorry, JL counsel for the Crime and Corruption Commission 1st Respondent: Hollands, S counsel instructed by Gilshenan & Luton 2nd Respondent: Nicolson, MD counsel instructed by the Queensland Police Service Legal Unit REASONS FOR DECISION [1] Ms Newman, a former Sergeant in the Queensland Police Service (‘QPS’), faced an allegation of misconduct in respect of providing false and misleading information to a Superintendent and ESC investigators between 15 October 2017 and 20 March 2018. Deputy Commissioner Linford found the allegation of misconduct substantiated and issued a disciplinary declaration having concluded that (had Ms Newman not earlier resigned) a sanction of demotion to Senior Constable would have been imposed. [2] Ms Newman applied to QCAT for review of the Deputy Commissioner’s decision. On review, the Tribunal confirmed the Deputy Commissioner’s decisions substantiating the allegation of misconduct in its decision dated 20 May 2020 (the substantiation decision) and sanction in its decision dated 31 August 2020 (the sanction decision). [3] The Crime and Corruption Commission (CCC) appeals the Tribunal’s sanction decision only. It ultimately submits that the Tribunal erred in determining the correct and preferable decision in not finding that Ms Newman would have been dismissed had she remained in the QPS. Ms Newman and the Deputy Commissioner submit that the Tribunal’s decision was not affected by material error. -- 2 of 14 -- 3 The grounds of appeal [4] The CCC alleges three errors by the Tribunal, which may be summarised as follows: (i) The sanction is unreasonable, plainly unjust and manifestly inadequate; (ii) The Tribunal took into account an irrelevant consideration, namely, Ms Newman’s resignation from QPS; (iii) The Tribunal made findings of fact which are unsupported by the evidence. [5] At the oral hearing, the CCC clarified that (despite its written outline of submissions contending that ground one and three were errors of mixed law and fact), that all three grounds of appeal alleged error of law only. The Deputy Commissioner agreed that was so. Ms Newman’s submission was perhaps less clear on this point. [6] In my view, the grounds of appeal allege errors of law alone. Ground 1 involves appeal against an exercise of discretion, essentially alleging unreasonableness.1 Although the Court of Appeal recently left open the question of whether unreasonableness might be a question of mixed law and fact,2 a ground of unreasonableness has usually been considered a question of law and so I proceed on that basis.3 Whether an irrelevant matter was taken into account in making the decision as alleged by Ground 2 is a question of law. Finding a fact or facts that are not open on the evidence, as alleged by ground 3, is an error of law.4 Therefore, I must proceed to determine the appeal pursuant to s 146 of the QCAT Act, as it is an appeal in the strict sense.5 [7] For the reasons in the paragraphs that follow, the appeal should be dismissed. [8] If I am wrong, and any of the grounds involves a question of fact or mixed law and fact, I would refuse leave to appeal as no material error is identified and an appeal is not necessary to correct a substantial injustice for the reasons explained below. The Tribunal’s decision Background [9] To provide the context, some details from the substantiation decision are set out. [10] In its substantiation decision, the Tribunal confirmed the one matter of misconduct (or ‘the disciplinary matter’) alleged was substantiated. [11] The disciplinary matter alleged that between 15 October 2017 and 20 March 2018, Ms Newman’s conduct was improper in that she provided false and misleading information to Superintendent McNab (‘McNab’) and QPS investigators attached to Ethical Standards Command (‘ESC’), on the basis of specified particulars, numbered 1-8. The particulars set out the dates of conversations, emails and extracts from the transcripts of disciplinary interviews, concerning Detective Inspector Colfs’ (‘Colfs’) 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 2 Lee v Crime and Corruption Commission [2020] QCA 201. 3 Flegg v Crime and Misconduct Commission [2014] QCA 42. 4 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390. 5 Ericson v Queensland Building Services Authority [2013] QCA 391. -- 3 of 14 -- 4 official police diaries and a lawfully intercepted telephone conversation between Ms Newman and Colfs on 5 December 2017 (the intercept). [12] The Tribunal set out a helpful background summary.6 Relevantly, on 24 August 2017, ESC commenced an investigation about Colfs, with whom Ms Newman had worked. On 13 October, Colfs was suspended from duty, and her office was searched by officers including Superintendent McNab. No QPS official diaries were located during the search. The office remained unlocked. Colf’s office was again searched on 16 October 2017 and no diaries located. McNab asked Ms Newman if she’d seen any of Colf’s diaries. Ms Newman replied that she ‘hadn’t.’ [13] On 23 October 2017, Ms Newman packed up Colf’s drawers and bookshelves from her office and relocated them to her office. She later told ESC investigators that the contents included ‘big blue books’. [14] A telephone call between Ms Newman and Colfs on 5 December 2017 was lawfully intercepted. During the intercept, when Colfs asked if she had packed her office drawers, Ms Newman told Colfs, ‘…I have some diaries.’ By text message on 12 December 2017, Ms Newman replied to Colfs that she has her ‘scanner and reading glasses and the notebook.’ [15] On 7 February 2018, Detective Acting Inspector Herpich emailed Ms Newman stating that he required Colfs’ work diaries. Ms Newman stated that , ‘… there are no diaries in the office to provide.’ [16] In an ESC interview on 19 February 2018, Ms Newman was asked whether she ‘.. got any diaries out of Colfs’ office at all?’. Ms Newman said, ‘No.’. A second ESC interview later took place on 19 March 2018 during which Ms Newman stated that she had ‘not that I can remember’ had a conversation with Colfs in relation to her diaries since she was stood down. [17] On 14 August 2018, Ms Newman was stood down from duty. On 9 November 2018, Ms Newman separated from the QPS. [18] Relevantly, the telephone intercept on 5 December 2017 included the following extracts: Colfs: ‘…in my drawers, have you packed my drawers at all?’ Newman: ‘Uh Uh, nah cause I didn’t know what was work, Oh Oh hang on yes I have some diaries.’ Colfs: ‘Oh yes, so don’t worry…’ Newman: ‘Which I took, because I was asked if maybe we should go through and get them.’ Colfs: ‘By who.’ Newman: ‘Bruce, cause you might need them, he said you might need them. But I already had them. I said I don’t know. Anyway, he looked he goes, no there doesn’t seem to be any to be any in here, I said I don’t know.’7 6 Newman v Deputy Commissioner Linford APM & Anor [2020] QCAT 179 [8]. 7 Ibid [39]. -- 4 of 14 -- 5 The sanction decision [19] In the Tribunal’s sanction decision, it considered that in reaching the correct and preferable decision it must exercise its discretion by balancing all of the relevant factors.8 It referred to Ms Newman’s 28 year career as a police officer as unblemished, except for the one matter of misconduct. That said, it acknowledged that the conduct did not involve an isolated incident and that Ms Newman had the opportunity to correct her lies.9 It considered that Ms Newman had not personally gained in respect of the conduct.10 [20] It was satisfied that Ms Newman remained in her substantive position until stood down and performed her duties to a ‘very high standard’ until that time, based upon her mid-cycle review on 8 June 2018.11 [21] The Tribunal did not accept, as contended by Ms Newman, that had she remained in the police service, a reduction in pay-point reflected the seriousness of the conduct in failing to disclose her conversation with Colfs and giving false and misleading information to McNab and ESC investigators. In reaching this view, the Tribunal considered as relevant Ms Newman’s senior position as a Sergeant and her 28 years of experience, and the trust members of the QPS and the community placed in her.12 [22] Nor did the Tribunal accept that a sanction of dismissal would have been warranted as contended by the CCC,13 despite finding the misconduct ‘deplorable’14 and honesty fundamentally important for a police officer.15 Here, the learned Member acknowledged that if not for her 28 years of good service and many references attesting to Ms Newman’s good character, even absent personal gain from the conduct, the misconduct could have justified a sanction of dismissal.16 It acknowledged that Ms Newman had not admitted her conduct or shown remorse, but said that factor was not to be considered in isolation in exercising its discretion.17 [23] Having reviewed comparable decisions relied upon by the parties, the Tribunal concluded that the seriousness of the conduct rendered Ms Newman unfit to remain in the senior position of a Sergeant of police (a position she had held since December 2009) noting that in that role she was responsible for guiding and leading more junior officers, had she remained in the service.18 It found the purposes of discipline served by a demotion from Sergeant to Senior Constable.19 Based on that finding, it exercised its discretion to make a disciplinary declaration and confirmed the decision of the Deputy Commissioner made in similar terms was the correct and preferable decision. 8 Newman v Deputy Commissioner Linford APM & Anor (No 2) [2020] QCAT 328 [13] (‘Newman v CCC (No 2)’). 9 Ibid [38-39] 10 Ibid [14]. 11 Ibid [15- 16]. 12 Ibid [17-18]. 13 Ibid [19-28]. 14 Ibid [19]. 15 Ibid 26]. 16 Ibid [28-29]. 17 Ibid [29]. 18 Ibid 34-37]. 19 Ibid [42]. -- 5 of 14 -- 6 The alleged errors in the exercise of the Tribunal’s discretion [24] It is convenient to deal with the specific alleged errors in grounds two and three before addressing the more general ‘unreasonableness’ ground. [25] In the paragraphs that follow, references to paragraphs of the Tribunal’s decision below are references to paragraphs in the sanction decision. Did the Tribunal err by taking into account an irrelevant consideration, namely Ms Newman’s resignation from QPS [26] The Tribunal said in its reasons as follows: [30] In the present matter, Ms Newman’s conduct took place during the investigation into the location of Colfs’ diaries. Unlike Caesar that involved conduct over many months with the subject officer’s goal (in terms of conduct) of achieving promotion or at least transfer away from his (Mr Caesar’s) current posting, in the present matter Ms Newman received no personal gain from her conduct. Inferences may, of course, be drawn by the Tribunal on review as to the reasons or motive for Ms Newman’s conduct such as, for example, Ms Newman was protecting Colfs’ diaries from being recovered by the QPS. The fact remains, however, that Ms Newman resigned from the QPS before the disciplinary proceedings were finalised. In the absence of any evidence before me as to Ms Newman’s motive or reasons for her conduct, I do not draw any inferences nor make any findings about the reasons why Ms Newman was untruthful and gave misleading information to a senior officer of the QPS and investigators of the ESC. [27] The CCC submits that the Tribunal erred in saying, ‘The fact remains, however, that Ms Newman resigned from the QPS before the disciplinary proceedings were finalised.’ The CCC submits that the fact of resignation is not relevant to the severity of the sanction and the finding led the Tribunal into error in considering Ms Newman’s motive or reason for her conduct. [28] Ms Newman submits that the Tribunal did not place weight on the resignation in determining sanction, rather that the Tribunal was aware of the statutory limit on the orders that could be made by way of disciplinary declaration. The Deputy Commissioner submits that resignation is relevant to the imposition of a disciplinary declaration. [29] The finding sought here to be impugned appears in the body of a paragraph otherwise concerned with considering the circumstances of Ms Newman’s case as against a decision the Tribunal had been referred to as comparable, and specifically in relation to whether an inference was to be drawn about Ms Newman’s motive for the misconduct, and whether she had sought any personal or professional gain from the conduct. [30] In context, at paragraphs [20]–[27], the learned Member outlined a number of cases relied upon by the CCC as comparable. The Tribunal then discussed Ms Newman’s conduct as compared to the conduct of the officers in each of those cases with respect to a variety of factors. It has observed that in that case of Caesar,20 the subject officer had copied 574 examples of work performed from applications of eight other officers into his own applications for various advertised positions, with the goal of obtaining promotion or, at least, transfer. [31] In paragraph [30], as set out above, the Tribunal then contrasted Ms Newman’s circumstances with the circumstances in Caesar, where the officer concerned had 20 Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169. -- 6 of 14 -- 7 sought personal gain by way of a promotion or transfer, the Tribunal stated that Ms Newman had received no personal gain from her conduct. It observed that inferences could potentially be drawn as to Ms Newman’s reasons or motive, such as protecting Colfs’ diaries from recovery. The Tribunal goes on to make the statement sought to be impugned in declining, in ‘the absence of any evidence,’ to draw any such inference or make findings about Ms Newman’s motives for her misconduct. [32] It is not controversial that in determining sanction, because Ms Newman had resigned, the Tribunal was called upon to decide whether a disciplinary declaration should be made as provided for by the Police Service Administration Act 1990 (Qld) (as in force prior to 30 October 2019) in s 7A.2. Therefore, to that extent, the fact of Ms Newman’s resignation was relevant to the Tribunal consideration. The CCC’s complaint is that the Tribunal considered it relevant in considering Ms Newman’s motive or reason for her conduct. [33] In context, on a fair reading, it is sufficiently clear that the Tribunal intended only to contrast Ms Newman’s circumstances here with the circumstances in Caesar. In particular, it observes in effect that unlike Mr Caesar who sought promotion or transfer, by his misconduct, it seemed that Ms Newman, whose misconduct arose during an investigation into Colfs’ diaries, did not seek such workplace advantage, having regard to her resignation before the disciplinary process concluded. In effect, the Tribunal says, in those circumstances, and in the absence of any clear evidence as to motive, it is not prepared to draw any inference as to Ms Newman’s motive. Therefore, in my view, the Tribunal did not, as alleged, take the fact of resignation into account in determining the severity of the sanction to be imposed. Did the Tribunal make findings of fact unsupported by the evidence, resulting in imposition of a sanction that did not reflect the gravity of the misconduct [34] The findings of fact sought to be impugned concern whether Ms Newman’s service history was ‘unblemished’; whether the misconduct was properly characterised as ‘one-off conduct’; whether the evidence supported the finding that Ms Newman obtained a personal gain through the conduct, and a related issue, as to whether the Tribunal was entitled not to make findings about Ms Newman’s motive for the conduct; and whether it was open to find that Ms Newman was performing to a high standard. Was Ms Newman’s service history unblemished? [35] Ms Newman’s service record21 contained under the heading of ‘Complaints’, five entries other than the disciplinary matter under consideration. [36] An allegation of misconduct from 2013 was finalised as unsubstantiated. An allegation of misconduct from 1999 was also finalised as unsubstantiated. A 1997 complaint of inappropriate use of language was finalised by way of informal resolution. A 1994 complaint was finalised with no further action. [37] A 1997 complaint resulted in two disciplinary matters against Ms Newman. One was found unsubstantiated; the other, relating to a failure to comply, without reasonable excuse, with a direction of the officer to include particulars in a crime report, was found substantiated. Ms Newman was reprimanded for the conduct. 21 Appeal Book filed by Crime & Corruption Commission on 11 November 2020, pp 248-250. -- 7 of 14 -- 8 [38] The CCC submits that while the allegation is less serious than the current conduct, it is not irrelevant, again involving a failure to comply with direction of a senior officer. It submits that the Tribunal found in error that Ms Newman’s service history was unblemished. [39] Ms Newman’s representative submits in effect that in a 28 year career, the 1997 disciplinary matter is not a significant aberration. The Deputy Commissioner contends that alleged error does not support a conclusion that the Tribunal’s discretion miscarried. [40] In my view, the learned Member accepted in error the submission that Ms Newman’s career was unblemished,22 having regard to the earlier substantiated misconduct. [41] It was incorrect to describe Ms Newman’s history as unblemished. That said, in my view, the error could not be said to be material in the circumstances. The prior incident of misconduct had occurred in 1997, at the time of the Tribunal’s decision some 23 years earlier when Ms Newman was a relatively inexperienced officer, and early in Ms Newman’s police service career. Further, although a reprimand, being a public condemnation of the misconduct is serious, it is the most minimal sanction for misconduct. Therefore, Ms Newman had a lengthy service history without blemish for the most recent 23 years before the decision, and a service history spanning 28 years in total marred only by one substantiated matter of misconduct which resulted in a reprimand only in her early years of service. As the years progressed, the significance of the isolated incident of misconduct in Ms Newman’s early career necessarily diminished. Here, it is so long ago, that it was overwhelmed in significance by the later unblemished period of service. [42] The Tribunal’s description of Ms Newman’s career as unblemished and its failure to acknowledge the previous incident of misconduct is an error. However, in Ms Newman’s overall circumstances, the fact of the earlier misconduct does not, in my view, diminish the mitigating factor of the extensive service career that followed. Therefore, the error is not material and does not support a conclusion that the exercise of the Tribunal’s discretion miscarried. Was Ms Newman’s misconduct ‘one-off conduct’? [43] The CCC argues that the 1997 misconduct, involving a failure to comply with directions of a senior officer is similar to the recent misconduct. [44] Further, the CCC argues the Tribunal downplayed the seriousness of Ms Newman’s conduct in accepting that the misconduct the subject of these disciplinary proceedings was ‘one off’ conduct; in referring to the subject misconduct as one matter of misconduct; and in disregarding that Ms Newman’s conduct occurred over a protracted period of some 5 months, in circumstances that she still has not admitted her conduct. [45] It submits that notwithstanding the Tribunal’s acknowledgement at [39], that the conduct was not isolated, that statement is at odds with paragraph [14] and the manner in which it is differentiated by the learned Member from Caesar and Gee.23 22 Newman v CCC (No 2) [14]. 23 Gee v Deputy Commissioner Stewart [2012] QCAT 33. -- 8 of 14 -- 9 [46] At paragraphs [21] and [30], the Tribunal observed that Caesar used examples on 574 occasions of work performed which was copied from applications of 8 other officers over many months for purposes of securing promotion or transfer. At [24] and [32], the Tribunal discussed Ms Gee’s conduct being untruthful during the disciplinary interviews; dishonestly applying to her use $1005 and $997.80 belonging to the PCYC; providing false and misleading information in a job application and sexually harassing a colleague. It considered Ms Gee’s conduct more serious and over an extended period. [47] Ms Newman argues that the Tribunal correctly identified that Caesar and Gee involved ongoing misconduct and that not having admitted the conduct does not equate to committing ongoing misconduct. Further, it argues that the 1997 misconduct was not similar misconduct, rather that the current misconduct involves dishonesty as opposed to disobeying an order of a superior. Again, the Deputy Commissioner submits that the alleged error does not support a conclusion that the exercise of discretion miscarried. [48] Firstly, The Tribunal was correct at paragraph [14] that there was only the one matter of misconduct brought against Ms Newman in respect of the particulars alleged. However, at [39] the Tribunal found that the conduct was not isolated: it concluded that Ms Newman was not forthcoming when asked about the diaries and later the dishonesty continued when she was questioned about the telephone conversation with Colfs. [49] In relation to Caesar, in my view, there is no identifiable error in differentiating some 574 instances of dishonesty in seeking promotion and transfer with Ms Newman’s misconduct. Nor is there error in considering Gee’s conduct more serious than Ms Newman’s, noting the various allegations of misconduct, against Gee as outlined earlier. The motive/personal gain issues [50] The CCC submits that the Tribunal was in error in concluding that the material before it was absent any evidence capable of being used to make a finding as to motive or reasons for the conduct. Relying on Jones v Dunkel,24 it submits that in some circumstances where a party fails to adduce evidence, inferences may be drawn that the evidence if produced would have been unfavourable to the party. It further submits that Ms Newman’s lack of explanation for her failure to adduce evidence as to her motive for her conduct allows unfavourable inferences to be drawn with greater confidence. [51] Further, CCC refers to the evidence of ongoing telephone conversations and text messages between Ms Newman and Colfs over some 10 months, as well as, Ms Newman’s evidence on 18 March 2018 that she didn’t agree with ‘a lot of things’ that ‘have happened’ relating to Colfs suspension25 and that she was dissatisfied with Superintendent McNab’s behaviour in dealing with colleagues and her complaint to him. It submits this evidence allowed the Tribunal to draw inferences about her motive for the misconduct including a close friendship with Colfs; unhappiness about her (Colfs) suspension; and/or dissatisfaction with McNab’s behaviour. Further, it submits that a motive of this nature would lead to a conclusion that Ms Newman 24 (1959) 101 CLR 298. 25 Appeal Book filed by Crime & Corruption Commission on 11 November 2020, pp 533 and 534. -- 9 of 14 -- 10 received a personal gain through her conduct, whereas the Tribunal concluded that she did not gain from the misconduct. [52] The CCC refers to the Tribunal’s statement at [28] to the effect that if not for Ms Newman’s many years of good service and references, the misconduct could have justified a sanction of dismissal, even absent any personal gain by Ms Newman. It argues in effect that ‘as both motive and personal gain are mutually exclusive’26 it was not open for it to find that Ms Newman had no personal gain. It suggests that in the absence of evidence as to motive, the Tribunal was unable to conclude whether Ms Newman had personally gained from the conduct. [53] Ms Newman submits that she denied the allegation of misconduct. The Tribunal nevertheless found the allegations proven, rejecting her version of events. She argues that she did not fail to adduce evidence, she went through her text messages and participated in directed interviews. In any event, in a disciplinary context, it says the CCC’s Jones v Dunkel submission is analogous to saying that once a disciplinary allegation is made, it is for the person facing disciplinary matters to discredit them, rather than for the regulatory body or here, Deputy Commissioner, to establish that the misconduct occurred. She says that the Deputy Commissioner produced no evidence of professional or personal gain, as the Tribunal found at [30]. She submits that an adverse inference can be drawn only where a party must explain or contradict facts requiring an answer or to meet the onus of proof. [54] Further, Ms Newman submits that irrespective of motive, the Tribunal exercised a broad discretionary power based on the totality of the evidence in determining sanction, and the many mitigating factors Ms Newman advanced. [55] The rule in Jones v Dunkel operates where there is an unexplained failure by a party to give evidence, call witnesses or tender documents. In some circumstances, this may lead to an inference being drawn that the uncalled evidence would not have assisted the party who failed to call it.27 Whether the inference is drawn depends upon the weighing of all of the evidence.28 The rule has been found not to apply where the failure is reasonably explained, for example, in circumstances where any relevant question could have been asked of a witness in a compulsory examination, and a transcript of the examination is before the decision-maker.29 In any event, the rule cannot be used to fill gaps in the evidence.30 [56] In police disciplinary reviews, the review is by way of rehearing on the evidence given before the original decision-maker.31 The tribunal may give leave for further evidence only if satisfied the person seeking leave did not know or could not reasonably have known of its existence in the original proceeding; or in the special circumstances of the case, it would be unfair not to allow it.32 Indeed, before the original decision- maker, here the Deputy Commissioner, oral evidence is not heard on the allegations of misconduct. The decision-maker gives notice to the officer that the decision-maker 26 Submissions of Crime & Corruption Commission filed 11 November 2020, [52]. 27 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64]; John Dyson Heydon AC, Cross on Evidence (LexisNexis, Sydney, 12 th ed, 2019) [1215]. 28 Flack v Chairperson, National Crime Authority (1997) 80 FCR 137 [148-149]. 29 Chairman, National Crime Authority v Flack (1988) FCR 16, [28]. 30 Jones v Dunkel (1959) 101 CLR 298; Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 [49]; Beaven v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542. 31 Crime and Corruption Act 2001 (Qld) s 219Q(1). 32 Ibid s 219Q(2). -- 10 of 14 -- 11 considers on the basis of the ESC internal investigation that there is a disciplinary ground to answer. The decision-maker then provides a copy of the documents gathered and invites the officer to provide written submissions about whether a disciplinary finding should be made; and if a finding is made, what disciplinary action is appropriate. [57] Having regard to the process, before (the original decision-maker and) the Tribunal, in my view, it is not apparent that Ms Newman failed to provide evidence that would allow a Jones v Dunkel inference to be drawn against her in respect of motive or personal gain, let alone been compelled to do so. She participated in the disciplinary investigation, answering all questions asked of her. Copies of those transcripts of interview form part of the evidence before the Tribunal. She provided copies of her text messages. The one matter of misconduct alleged against her was formulated by the Deputy Commissioner based upon the evidence provided through the investigation process. It is to the effect that Ms Newman’s conduct was improper by way of the events set out in the particulars. Those events do not contain reference to a motive for the conduct. Ms Newman was advised of the disciplinary process against her and provided submissions in response. That is, she answered the disciplinary matter as brought against her. [58] It was for the Deputy Commissioner to establish the matter of misconduct against her. As discussed, because of the limited nature of police misconduct proceedings, there was no oral evidence or cross-examination at either the hearing before the Deputy Commissioner or in the review proceedings before the Tribunal, noting the limited circumstances in which the Tribunal might give leave for further evidence to be relied upon by a party.33 [59] There is, as the Tribunal found at [30] of its sanction decision, and the CCC’s submission implicitly accepts, no direct evidence as to motive. An officer’s reasons for misconduct, may in some circumstances be considered an aggravating factor in respect of the misconduct, in other circumstances, they will be a mitigating factor. Therefore, they are often the subject of submissions and findings in relation to the imposition of sanction. That said, care must be taken not to sanction an officer for conduct that is more serious than the disciplinary matter brought in addressing the reasons for misconduct in relation to sanction.34 [60] The Tribunal, in weighing the evidence, and exercising its discretion declined to draw an inference as to motive, whether by way of the rule in Jones v Dunkel, or any other basis. The Tribunal was not prepared to draw an inference about motive in the circumstances here. That course was open to it in the proper exercise of its discretion. [61] I turn to consider the allegation that the Tribunal could not conclude that Ms Newman had not personally gained without making a finding as to her motive. The Tribunal accepted that Ms Newman received no personal gain, despite declining to draw any inference about motive. 35 The Tribunal’s reasons do not advance a basis for finding that Ms Newman had not occasioned a personal gain. The finding appears to have 33 CCC Act s 219Q(2). 34 Lee v CCC & Anor [2014] QCATA 326, [63, 110-113]; CCC v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510, [35-45]; Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55, [117]; Anderson v Crime and Corruption Commission & Anor [2020] QCATA 75, [37-39]. 35 Newman v CCC (No 2) [14], [28]. -- 11 of 14 -- 12 emerged from the Tribunal’s disinclination to draw any inference about motive in the absence of direct evidence of any motive. Finding a fact in the absence of evidence would constitute an error of law. [62] That said, in my view, on a fair reading of the Tribunal’s reasons for decision overall, it is sufficiently clear that the Tribunal was not satisfied on the evidence that Ms Newman had enjoyed a personal gain as a result of the misconduct, rather than being satisfied that she had not received a personal gain. It could have more clearly expressed itself. However, busy tribunal members have limited time and resources to more thoroughly perfect drafting of reasons. [63] As far as its relevance in determining sanction, the effect is the same: there is no personal gain to be taken into account as an aggravating circumstance, whether it was because the Tribunal was not satisfied based on the evidence that Ms Newman has occasioned such or gain, or whether it was satisfied that she did not receive a personal gain. [64] Accordingly, in my view, no material error is identified. Was Ms Newman performing her duties to a high standard? [65] At [16], the Tribunal said it was ‘open’ on the evidence to find ‘that until 14 August 2018 when Ms Newman was stood-down, she was performing her duties as a police officer to a ‘very high standard’ as recorded on Ms Newman’s mid-cycle Performance planning and Appraisal (‘PPA’) review records on 8 June 2018.’ At [40], the learned Member then found that ‘… at the time of the conduct Ms Newman was performing her duties to a high standard.’ [66] The CCC submits that the Tribunal erred in finding it was open to make the finding based on the PPA review records of 8 June 2018. In particular, CCC submits that the mid-cycle PPA was created on 8 December 2017, about 2 months after Ms Newman had ‘lied’ to McNab on 16 October 2017, and some 2 months ‘before lying’ to the investigating officers in the directed interviews on 18 February and 18 March 2018 respectively. The mid-cycle PPA review then occurred on 8 June 2018. Accordingly, it contends that throughout the duration of the PPA, Ms Newman was repeatedly dishonest and deceptive in carrying out her role as an officer. Therefore, it submits that placing any weight on the PPA was an error. [67] On a fair reading of the Tribunal’s reasons for decision overall, it is clear that the learned Member was not mistaken as to the timeframes during which the misconduct occurred, nor the period during which the PPA was prepared. Further, at [15], the learned Member accepted that Ms Newman remained in her substantive position of Sergeant, Support Officer to the District Superintendent in Mackay from the time the disciplinary investigation commenced on 27 August 2017 until 14 August 2018 when she was stood down. [68] In my view, it is sufficiently clear that in finding that Ms Newman was performing her duties to a high standard that the learned Member referred to her day-to-day duties in her substantive operational role, putting to one side the circumstances and of the one matter of misconduct. Indeed, the fact that Ms Newman remained in her substantive position, strongly suggests that her superiors at QPS had ongoing confidence in her remaining in her senior and apparently critical support role, despite the disciplinary process and allegations. In my view, on the evidence, it was open for the Tribunal to make the finding it did. -- 12 of 14 -- 13 [69] In my view, no error is identified. Did the Tribunal impose a sanction that is unreasonable, plainly unjust and manifestly inadequate because it failed to meet the purposes of discipline [70] Essentially here, the CCC submits that the exercise of the Tribunal’s discretion miscarried in that the sanction is unreasonable. [71] The CCC relies upon the errors alleged in the other grounds of appeal. The CCC further submits that in light of the Tribunal’s findings, at [19] that the conduct was ‘deplorable’, and at [26], the fundamental importance of honesty in a police officer, it erred in not considering the conduct ‘serious enough to warrant ….dismissal’ and failed to achieve the purpose of discipline. [72] It says the Tribunal misdirected itself in considering Deputy Commissioner Stewart v Dark36 in limiting its consideration to whether Ms Newman failed to perform her duties at the rank of Sergeant without fear or favour, rather than her fitness to be a police officer. It submits that integrity is fundamental at any rank, and, while acknowledging that it is relevant that she was a Sergeant at the material time, referring to her rank in the manner the Tribunal did led it into error. Its focus should have been her fitness to be a police officer. [73] It is not controversial that in imposing sanction, the Tribunal exercises a broad discretion. Nor, is it controversial that it is entitled to take into account a range of relevant factors in exercising its discretion.37 For the reasons explained in previous paragraphs, there was no material error identified in the other grounds of appeal. [74] In my view, the fact of the Tribunal’s findings that the conduct was ‘deplorable’ and ‘the importance of honesty’ in a police officer are not, of themselves, necessarily inconsistent with a finding that, in Ms Newman’s particular circumstances, the conduct does not warrant dismissal. Not every act of misconduct will warrant dismissal.38 All of the relevant factors of the particular case must be considered. [75] At [9], the Tribunal stated that in determining sanction, the purpose of disciplinary proceedings applies, in particular, to protect the public; uphold ethical standards; and promote and maintain public confidence in the QPS. The Tribunal correctly identified at [10], that an issue for its consideration in determining the proceeding was ‘whether Ms Newman remains fit to continue serving as a police officer, had she remained employed with QPS…’. As it also stated at [10], ‘On the other hand, the issue as to whether Ms Newman remains fit to continue in the position of Sergeant had she remained employed with QPS is also relevant….’. [76] At [26], the Tribunal discussed the CCC’s submission that dishonesty was central to the determination of sanction, and that honesty was of fundamental importance for a police officer. Further, it accepted honesty as a characteristic of fundamental importance, noting the CCC’s submission that by her dishonesty, she had demonstrated an unfitness to serve as a police officer. At [27], the learned Member then discussed Re Bowen,39 in which Demack J said that dishonesty erodes public confidence and the trust between police officers. That said, in the particular 36 [2012] QCA 228, [21]; 37 Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96. 38 Lee v Crime and Corruption Commission [2020] QCA 201. 39 [1996] 2 Qd R 8. -- 13 of 14 -- 14 circumstances of 30 years meritorious service, he considered that the three acts of official misconduct did not warrant dismissal in those particular circumstances. [77] Here, the Tribunal found at [28], that it was open for it to find that Ms Newman’s 28 years of experience, many references as to her good character and work history are relevant to whether she ‘remains fit to continue as a member of the QPS’. It continued on: ‘…without those years of service and references, Ms Newman’s conduct that involved giving false and misleading information…. where Ms Newman did not personally gain from the conduct, could have justified a sanction of dismissal.’ The Tribunal was clearly cognisant of the need to decide whether Ms Newman was fit to continue as a police officer and did find her to be fit to continue. [78] After further discussion of Ms Newman’s circumstances, and the circumstances in other cases relied upon by the parties, the Tribunal found at [34], that the misconduct ‘… is serious to the extent that she is no longer fit to remain a Sergeant of the QPS, had she remained in the QPS.’ This conclusion was reached on the basis of her untruthfulness when asked about the diaries as set out at [34], and in light of the leadership role entailed in the position of Sergeant at [35]. The Tribunal found the purpose of discipline served by demotion to Senior Constable at [42] and exercised its discretion to make a disciplinary declaration given that Ms Newman had by then resigned. [79] That is, having decided Ms Newman was fit to be an officer having regard to an extensive history of commendable service; her then current performance of her substantive duties at a high level; it found she was not fit to remain at the rank of Sergeant in light of the established misconduct and the leadership role she held as a Sergeant. [80] Therefore, although it might perhaps have been more clearly expressed, I do not accept the CCC’s submission that the Tribunal misapplied Dark at [37], when it said ‘Consistent with DC Stewart v Dark, Ms Newman failed to perform her duties as a Sergeant without fear or favour’.40 It had found that Ms Newman was fit to remain an officer, but that in determining sanction, she was not fit because of the misconduct to remain at the rank of Sergeant, had she remained in the police service. [81] I am not satisfied that there is any basis upon which to find that the sanction imposed was unreasonable or failed to achieve the purposes discipline such that the exercise of the Tribunal’s discretion miscarried. Conclusion and orders [82] For the reasons explained no material error has been identified in the appeal that would support a conclusion that the Tribunal’s discretion miscarried. [83] The appeal should be dismissed. Orders are made accordingly. 40 Newman v CCC (No 2) [37]. -- 14 of 14 --