BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448 PARTIES: BJB (applicant) v ACTING DEPUTY COMMISSIONER DA WRIGHT CRIME AND CORRUPTION COMMISSION (respondents) APPLICATION NO: OCR281-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 24 June 2021 HEARING DATE: 24 November 2020 HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: The decision of Acting Deputy Commissioner Wright made on 10 July 2019 that the allegations of misconduct concerning Matters One, Two and Three are substantiated is set aside and substituted with a decision that Matters One, Two and Three are not substantiated. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCPLINE AND DISMISSAL FOR MISCONDUCT QUEENSLAND – general administrative review – where officer alleged to have exposed himself in the workplace in the context of banter about penis length – where alleged to have lied about the incident in subsequent interviews – where matters found to be substantiated in police disciplinary proceedings - where officer applied to review the findings of substantiation – whether the allegations of misconduct are proven to the requisite standard Crime and Corruption Act 2001 (Qld), s 219BA, s 219G, s 219H Police Service Administration Act 1990 (Qld), s 1.4 Police Service (Discipline) Regulations 1990 (Qld), s 3 -- 1 of 16 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21 Acting Senior Constable Wallis v Acting Deputy Commissioner Wright (No 2) [2020] QCAT 426 Aldrich v Ross [2001] 2 Qd R 235 Briginshaw v Briginshaw (1938) 60 CLR 336 Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 Francis v Crime and Corruption Commission [2015] QCA 218 Murray v Deputy Commissioner Stewart [2011] QCAT 583 O’Keeffe v Rynders, Deputy Commissioner [2011] QCAT 119 R v Filippa [2008] QSC 39 Shields v Commissioner of Police [2008] VSC 2 APPEARANCES & REPRESENTATION: Applicant: T.E Schmidt instructed by Gilshenan & Luton First Respondent: S.A McLeod QC instructed by Queensland Police Service Legal Unit Second Respondent: DJ Coghlan instructed by the Crime and Corruption Commission REASONS FOR DECISION [1] On 10 July 2019 Acting Deputy Commissioner Wright (the respondent) made a decision that four matters, the subject of misconduct proceedings, had been substantiated. [2] On 7 August 2019 BJB applied for review of the decision to substantiate the matters (OCR281-19) and contended that the respondent: a) Failed to take into account relevant evidence; b) Placed undue weight on certain evidence; and c) Made findings based on insufficient evidence.1 [3] On 13 August 2019 the respondent delivered his decision regarding sanction. On 23 August 2019 the Crime and Corruption Commission (the CCC) filed an application to review the decision as to sanction (OCR288-19) on the grounds the sanction was inadequate; did not reflect the seriousness of BJB’s conduct and did not adequately meet the purpose of disciplinary proceedings. The CCC sought that BJB be dismissed from the police service. On 9 September 2019 BJB also applied to review the sanctions imposed (OCR308-19) on the basis they were manifestly excessive. [4] The Tribunal made directions for the conduct of the matters, consolidating the applications for review of sanction (to be referred to as OCR288-19) and directing 1 Application for Review filed on 7 August 2019, at 4. -- 2 of 16 -- 3 that OCR281-19 and OCR288-19 were to remain separate proceedings but ‘travel together’. The Tribunal, at a compulsory conference in OCR288-19, made directions that the matter was to be listed for a Directions Hearing after the review of substantiation in OCR281-19 was delivered and made non-publication orders in relation to the contents of any documents filed in either proceeding and as to the identity of the police officer the subject of both proceedings.2 [5] On 21 September 20203 the Tribunal granted leave to BJB to adduce fresh evidence pursuant to s 219H of the Crime and Corruption Act 2001 (Qld) (CC Act) in the form of a medical report by Dr CE dated 10 August 2020. Statutory provisions and procedural history [6] On 19 July 2018 the respondent directed BJB to appear before him for consideration of what action in the interests of discipline of the Police Service should be taken under provisions of the Police Service Administration Act 1990 (Qld) (PSA Act) and the Police Service (Discipline) Regulations 1990 (Qld) (the Regulation). The Regulation was repealed on 30 October 2019. [7] The objects of the Regulation are set out in s 3: The object of these regulations is to— (a) provide for a system of guiding, correcting, chastising and disciplining subordinate officers; and (b) ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as— (i) to protect the public; and (ii) to uphold ethical standards within the Queensland Police Service; and (iii) to promote and maintain public confidence in the Queensland Police Service. [8] For the purposes of the PSA Act (s 7.4 or Part 7A), ‘misconduct’ is a ground for disciplinary action under s 9(1)(f) of the Regulation. Pursuant to s 7.4(1)(a) an officer may be disciplined if he or she has committed misconduct. ‘Misconduct’ is defined in s 1.4 as follows: "misconduct" means 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. [9] The basis for matter one was an allegation of self exposure in the workforce. The basis for matters two and three is the Sergeant denying during directed discipline interviews that the exposure occurred. The Sergeant admits matter four and its supporting particulars. 2 Tribunal Directions dated 26 November 2019. 3 The Tribunal decision is incorrectly dated 21 September 2019. -- 3 of 16 -- 4 [10] On 10 July 2019 the respondent made its decision that matters one, two and three were substantiated and that matter four had been admitted, and accordingly, was also substantiated. [11] BJB applied to the Tribunal for review of the respondent’s ‘substantiation decision’ pursuant to s 219G of the CC Act. [12] Section 219G provides, relevantly, that a ‘prescribed person’ against whom a reviewable decision has been made may apply to QCAT for review of a reviewable decision. A person who is a member of the Police Service is a ‘prescribed person’ as defined in the CC Act.4 Accordingly, the respondent’s decision constituted a ‘reviewable decision’ within the meaning of s 219BA(1) of the CC Act. [13] The proceeding in the Tribunal is itself a ‘disciplinary proceeding’ for the purposes of Chapter 5, Part 2, Division 1 of the CC Act, being a ‘proceeding under s 219G for a reviewable decision’.5 Section 219H provides that such a proceeding is a review by way of rehearing on the evidence given in the proceeding before the original decision- maker or, as occurred here, where the Tribunal gives leave to adduce ‘fresh, additional or substituted evidence’, a review is by way of rehearing on the original evidence and on the new evidence. [14] The Tribunal’s function on review is to hold a fresh hearing on the merits and to make the correct and preferable decision.6 In Aldrich v Ross7 it was held that the first duty of a Misconduct Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision-maker. There Thomas JA held: If the materials are inadequate, there is adequate power to obtain further information under s20 and s23(5).8 If further evidence were received the proceeding would necessarily become a rehearing de novo. If there is no serious contest as to the primary facts (as was essentially the position here), it is still necessary for the Misconduct Tribunal to make up its own mind on the facts and on the inferences to be drawn from them, though it might well see them the same way as the original decision-maker if that person's view of the facts is ascertainable.9 [15] This approach has been applied by the Queensland Court of Appeal in relation to review proceedings conducted in the Tribunal pursuant to s 219H of the CC Act in Francis v Crime and Corruption Commission.10 [16] Further, the Tribunal in Murray v Deputy Commissioner Stewart11 has held: Considerable respect is paid in this Tribunal to the views of the original decision maker (cf Aldrich v Ross [2001] 2 Qd R 235), but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own views. 4 CC Act, s 50(4)(a)(i). 5 Ibid, s 219B “disciplinary proceeding” and s 219BA(1) “reviewable decision”. 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20. 7 [2001] 2 QdR 235 (‘Aldrich v Ross’). 8 Referring to provisions of the Misconduct Tribunals Act 1997 (Qld); equivalent provisions are s 21(3) of the QCAT Act and ss 219H(2) and (3) of the CC Act. 9 Aldrich v Ross at [45] and see also [37]; agreed by Pincus JA at [1] and Muir J at [53]. 10 [2015] QCA 218 at [7]. 11 [2011] QCAT 583; applied recently in Acting Senior Constable Wallis v Acting Deputy Commissioner Wright (No 2) [2020] QCAT 426 at [11]. -- 4 of 16 -- 5 Aldrich v Ross (at p 257) recognises that the independent review tribunal is the only vehicle by which a public perspective is brought to bear in police disciplinary matters, and accordingly there will be cases where it will be appropriate and necessary to depart from the views of the original decision maker.12 [17] The standard of proof is on the balance of probabilities.13 In Briginshaw14 it was held that the allegation must be made out to the reasonable satisfaction of the Tribunal and should not be ‘produced by inexact proofs, indefinite testimony, or indirect inferences’.15 The relevant extract from Briginshaw is as follows: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.16 [18] The onus of proof remains upon the party making the allegation, or in this case seeking to substantiate the discipline matter.17 Particulars of the alleged misconduct [19] Only matters one, two and three are subject to review on substantiation and, depending on the outcome of this review, on sanction. Matter four is only subject to review on sanction given that BJB has admitted matter 4 and the supporting particulars.18 I turn now to consider whether matters one, two and three are substantiated. Accordingly, I set out below each of the matters and the further and better particulars alleged in respect of each. Matter One: On or about 30 April 2017 at Brisbane your conduct was improper whilst on duty you exposed your penis in the office of the X Road Policing Unit in front of other officers. Further and better particulars: 12 Ibid at [40]. 13 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J (‘Briginshaw’). 14 Ibid. 15 Ibid at 362. 16 Ibid at 361-362. 17 R v Filippa [2008] QSC 39 at [5]. 18 SOR at 17: BJB’s written submissions to the respondent at [10]; SOR at 102: Decision of respondent. -- 5 of 16 -- 6 • Investigations have identified that on or about Sunday 30 April 2017 you were rostered to perform duties at the X Road Policing Unit; • You were in uniform while in the office of the X Road Policing Unit in accompany of Senior Constables B, C and D; • There was friendly banter which raised the topic of you having a big dick and Senior Constable B responded by saying “That’s not what I heard [BJB], a little dick like yours you should be ashamed.” • Shortly thereafter you undid the fly to your pants and pulled your penis out of your pants and stood there with your arms folded and your shoulders back with a smile on your face; • Senior Constable B then turned away and said “Ah you dirty cunt are you for real, put it away. I cannot believe you just pulled your cock out in the middle of the office”; • Senior Constable C also saw your penis protruding from your pants while facing directly toward Senior Constable B; and • You then put your penis back in your pants. Matter Two: On 3 October 2017 at Brisbane your conduct was improper in that you were untruthful to Senior Sergeant A during your disciplinary interview. Further and better particulars: • Investigations have identified that on 3 October 2017 you participated in an interview with Senior Sergeant A at the X Road Policing Unit; • You were reminded of the Commissioners direction to truthfully, completely and properly answer all questions directed at you; • When questioned about you pulling your penis out of your pants with your arms folded with your shoulders back with a large smile on your face you replied “No knowledge at all” you further state “…the only time that I may have unzipped my pants is when I tuck my shirt in.”; and • You state that it is a complete fabrication by Senior Constable B because you took disciplinary action in relation to an ‘unlawful pursuit’. Matter Three: On 9 November 2017 at Brisbane your conduct was improper in that you were untruthful to Senior Sergeant A during your disciplinary interview. Further and better particulars: • Investigations have identified that on 9 November 2017 you participated in an interview with Senior Sergeant A at the X Road Policing Unit; • You were reminded of the Commissioners direction to truthfully, completely and properly answer all questions directed at you; -- 6 of 16 -- 7 • Senior Sergeant A outlined the following allegation “Senior Constable B has alleged to observe you undo the fly of your trousers and take your penis out of your pants and stand there with your arms folded and with your shoulders back, bearing a large smile. Do you have any recollection of that?” • You replied “No recollection and it did not happen at all”; • Senior Sergeant A further questions you in relation to Senior Constable C stating that “…B, D, [BJB] and myself were in the office together, when he observed you standing with your arms folded and your penis protruding from your pants. Do you have anything to say about that?” • You replied “Except that it is an absolute lie.”; and • At the conclusion of the interview Senior Sergeant A asked you “Alright, so is everything you have told me in this interview the truth?” and you replied “Yes”. [20] Clearly, if matter one is found to be unsubstantiated, then matters two and three must necessarily also be unsubstantiated. It follows that the central issue is whether the exposure incident is proven to the requisite standard. The burden of proof is with the respondent. The respondent must prove, to the requisite standard, each contested element of the matter alleged against BJB.19 The standard of evidence required to satisfy the onus is high in accordance with the principles in Briginshaw. [21] The material before the respondent in the disciplinary proceeding below and which now forms part of the material to be considered upon review includes the respondent’s decision, transcripts of interviews between the investigating officers, submissions by the parties, BJB’s affidavit, reports by Dr M and HN, 22 referee reports and the fresh report by Dr CE. I have also taken into account the oral submissions made at the hearing. [22] I turn now to consider matter one. Matter One – the alleged exposure incident on 30 April 2017 [23] BJB maintains he did not expose himself on 30 April 2017 and accordingly, did not lie during the relevant interviews. [24] The case against BJB relies on the evidence of Senior Constables B, C and to a lesser extent, D. In short, B and C both claim to have witnessed BJB’s exposure while D does not. D does, however, claim to have overheard a conversation about penises between B and BJB and to have heard a comment by B to the effect of, ‘you sick cunt’ and then ‘I can’t believe you just did that, getting your cock out in the station’.20 D, however, later qualifies his evidence by stating that he took the comment by B to be ‘tongue-in-cheek’ and that he was still unsure, many months after the alleged incident, whether BJB actually exposed himself or not. The only other person rostered on the day of the alleged incident was Senior Constable E. She gave evidence that she had no recollection of any incident occurring during the relevant shift.21 19 Shields v Commissioner of Police [2008] VSC 2. 20 Statement by D dated 30 August 2017 at [4]-[5]: SOR at 165-166. 21 Statement by E dated 25 July 2018 at [7]: SOR at 187. -- 7 of 16 -- 8 [25] I note, despite repeated requests by BJB’s barrister to the Acting Deputy Commissioner,22 no cross examination of any of the witnesses in the initial disciplinary hearing was permitted. Further, there was no application at the hearing to call or cross-examine witnesses.23 Accordingly, although this is a matter in which the credit and reliability of certain key witnesses is crucial,24 I am limited to relying on written statements and the transcripts of interviews conducted by internal investigators of those witnesses. The evidence and observations about the evidence S [26] S is the reporting officer and initial preliminary investigator. He was the officer with whom B first raised the issue, some four months after it allegedly occurred. S made detailed handwritten notes of their conversation immediately after the disclosure and further notes over the course of the next three days after speaking separately to Sergeant F and Senior Sergeant A.25 [27] B first mentioned the incident to S in the course of a ‘rant’ about BJB, having heard that BJB had reported him in relation to an ‘evade/pursuit matter’.26 The disclosure occurred during a Friday night shift on 18 August 2017. S said that he had walked into the office when B was half-way through ‘a vent’ with other officers present about BJB. S described B as being very annoyed, walking around the office ‘with the shits’.27 [28] S said that B had said openly in front of the other officers present, namely, C, D and G, that he was upset BJB had done a ‘465’ in relation to an evade/pursuit matter but that he was more upset at BJB’s double standards. In particular, B said that he was upset with the way BJB drove a car, rode his police bike and conducted himself.28 When pressed by S, B added that it wasn’t just that, that there was: a whole bunch of other things. Um he gets his cock out at work... the other week I was sitting at my desk and he’s come over and stood over me and got his dick out.29 (emphasis added) [29] S said that he asked him to stop at that point and to explain what he meant. S describes what B said to him about the alleged incident in the following terms: He goes, well he gets his cock out at work. He goes, the other week I was sitting at my desk and he’s come over and stood over me and got his dick out. And I said hang on a minute. I said, this makes no sense. What do you mean he got his dick out? And he said the four of them were sitting there. He was at his desk. They were giving each other banter about their cock size and for some reason [BJB] decided to get up, walk across from his desk and stand over [B] and get his dick out. I said, what’d you do? And he says, I fucking turned away 22 Letter from Mr T Schmidt to A/Deputy Commissioner of 31 July 2018 and 26 November 2018. 23 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 95 (‘QCAT Act’). 24 Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 at [16]-[19]; O’Keeffe v Rynders, Deputy Commissioner [2011] QCAT 119 at [11]- [12]. 25 Transcript of Interview of Sgt S of 14 October 2018 at 18: SOR 366. The handwritten notes are at SOR at 388 – 389. 26 Transcript of Interview of Sgt S of 14 October 2018 at 8: SOR 356. 27 Ibid at 7: SOR 355. 28 Ibid at 8: SOR at 356. 29 Ibid at 17: SOR at 365. -- 8 of 16 -- 9 immediately and yeah, told him put your fucking dick away. And he goes that’s caused [C] and [D] to have a look, turn around and see. [30] S says that he then took B over to the meal room, away from the other officers and describes the following conversation taking place between them: …he goes well [C] was there and [D] was there and he saw it, he stood over me with his dick out…I said okay. I said have you told anyone. No. When did this happen?...three weeks ago, three or four weeks ago. I’ve gone okay why haven’t you said anything? I don’t know. There was no real answer to it.30 (emphasis added) [31] Later in the interview, S says: …he said that he’s come over and he stood over him and [B] was sitting at, at his chair, obviously [BJB] had a higher height…[B] said [BJB] made a comment as he did it or as he walked away. He’s unzipped his pants. He got his dick out. So he has stood there over him and then [B] sort of realised that he’s there, looked up and as he’s looked up he says the dick’s right there and he goes….for fuck’s sake, put it away…31 (emphasis added) [32] S also described what B told him about where B and C were situated when the alleged incident occurred: [33] [C] has turned around in his seat. He was at a computer…I believe [D] has leant over to see what he is and he would have been looking at the back of [BJB], so the back of [BJB] and in front of [BJB] would have been [B] sitting down.32 (emphasis added) It is clear from this initial account that S, who made a contemporaneous account of his conversation with B on the night of the disclosure, was told by B that BJB came over to a seated B and stood over him. B describes looking up and seeing the exposed penis. There is no mention of any preceding friendly banter about penis size. [34] S also states that when B was relaying details of the alleged incident to him that he looked over to C and D for confirmation. S states that C nodded when asked if he saw it, whereas D denied seeing the alleged incident but said he did see BJB standing there. [35] B first told S that the alleged incident occurred ‘3 weeks ago, 3-4 weeks ago’ but later during their conversation and after consulting his rosters, said that it must have been 6-8 weeks ago, presumably when all four of them were working together. [36] S expresses concern about the delay in reporting the alleged incident and that it had not ‘come out’ earlier, given that it was, in his view, something you would expect people to be talking about. He says that there was no real answer given as to why nothing had been said or come out which was, in his words, ‘strange’ and ‘a bizarre thing about it’.33 [37] S also refers in his interview to the resentment B has towards BJB. S believes that B resents BJB having been promoted to Sergeant in 2012 while B remained a Senior Constable in circumstances where they are the same age with the same length of service and are competitive ‘for some stupid reason’.34 The clear implication from his 30 Ibid at 18: SOR at 366. 31 Ibid at 25: SOR 373. 32 Ibid at 25: SOR at 373. 33 Ibid at 28: SOR 376. 34 Ibid at 13: SOR 361. -- 9 of 16 -- 10 evidence about their relationship was that there was conflict between B and BJB and that they did not get on. [38] S said that B and C are good friends and socialised outside work.35 [39] S described D as follows: I’ve never known a bloke to be probably more loyal and truthful in terms of any matter. If someone, if I said something as a friend of his and he disagreed he would stand up and disagree. He’s not a guy just to go along. So when I heard [D] turn around and say what [B] just said is what played out I believe it played out.36 [40] I note here that D consistently denied seeing the alleged exposure which, of course, is the critical part of the alleged incident. In that sense, I have taken S to be saying that he believes the interaction between them occurred, but not necessarily the exposure. B’s evidence [41] B describes first disclosing the incident to S. He says that he was venting due to having been disciplined by BJB in relation to an evade matter and said to S that what infuriated him was that he was getting disciplined by a bloke that does a lot worse than he ever does and that he was a ‘fucking joke’. He said that he told S that the ‘dirty prick’ stood over there about two months ago, possibly longer, with his cock out in the middle of the office in front of me, C and D and that he thought it was a great joke. B says that he immediately tried to recant his disclosure by saying to S that he was ‘talking out of school’, had ‘probably said way too much’ and that maybe S should forget his comments because he did not want it turning into an issue. [42] B says the incident occurred on 30 April 2017 sometime after 2pm. He said that he, C and BJB were engaged in conversation standing over near the post directly opposite BJB’s desk. He said D was standing near the Administration Officer’s desk or photocopier. He said they were carrying on with friendly banter and that BJB said something about having a big dick. B said that he recalls saying something to the effect of ‘That’s not what I heard [BJB], a little dick like yours you should be ashamed’. Shortly after this he said BJB appeared to be undoing his pants fly at which time B said he thought he was still joking. He said he then watched him ‘pull his penis out of his pants and stand there with his arms folded, his shoulders back bearing a large smile on his face as if he was attempting to prove a point’. B claims he immediately turned away and said words to the effect ‘Ah you dirty cunt are you for real, put it away. I can’t believe you just pulled your cock out in the middle of the office’. [43] B claims he saw C react in a similar way telling BJB to put it away also. [44] At this time, D walked over to where they were all standing and approached BJB from his right side rear and that by this time, ‘[BJB] was returning his penis inside his pants’. [45] B says that he remembers BJB was wearing his motorcycle jacket which was zipped up indicating they were possibly heading out of the office. He says that shortly after 35 Ibid at 13: SOR at 361. 36 Ibid at 27: SOR at 375. -- 10 of 16 -- 11 this they all had a laugh and all jokingly bagged out BJB for his disgusting behaviour and for what he just did. (emphasis added) C’s evidence [46] C gave a short statement. He said he does not remember when the incident happened but he believed it was between 1 and 3 months ago (statement dated 25 August 2017). He says there was a conversation in relation to penises but he can’t remember why. He recalls B saying words to the effect, ‘You’re fucking joking (or kidding) put it away’. [47] C says he turned his head at that point and saw BJB with his arms folded and his penis ‘protruding from his pants’.37 In a later interview, C says that his penis was ‘hanging outside his pants’38 and that ‘he was folded like bravado sort of thing, ah like look at mine penis that type of thing so yeh’.39 [48] C said that BJB was facing directly towards B and that B was standing just near C’s desk. C says that D was sitting down at a computer. (emphasis added) D’s evidence [49] D says he was standing at the photocopier at the time and that he recalls seeing B and C standing to his right, in another section of the room facing BJB who was standing. He says that he remembers the three men were engaged in a conversation about penises and the size of them. They were laughing and joking and then B said ‘you sick cunt’. D says he then turned around to face the three males and noticed B looking down towards the pelvic region of BJB. He said he could only see the back right hand side of BJB at that time. [50] D says that he then walked towards them and remembers B saying ‘I can’t believe you just did that, getting your cock out in the station’. D said the mood then changed, the laughing stopped and he walked back to the computer he was working at. (emphasis added) BJB’s evidence [51] BJB says that he has never exposed his penis in the workplace and that the incident is a complete fabrication by B. BJB says he has no recollection of a time when the four of them were in the office together alone but that the roster would say that they were. He also has no recollection of ever engaging in friendly banter about dicks or penis size. The only time BJB says that he may have had cause to unzip his pants in the workplace would be to tuck his shirt in, but there was no conversation involved. He also states that you could not construe that act as pulling his penis out, ‘never happened and never would’.40 [52] BJB also says that C’s version of events is an ‘absolute lie’. BJB says he has no recall of B saying to him, as D recounted, ‘you sick cunt’. [53] BJB says that the complaint, in his view, was retaliatory for the disciplinary actions that he had instigated against both of them, most recently in August 2017, days before the complaint ‘raised it’s head’. BJB says that he had to do a ‘465’ on B for an 37 Statement of A C dated 25 August 2017. 38 Interview of A C, SOR at 161 39 Ibid at 162. 40 Interview with BJB on 9 November 2017 at 5: SOR at 178. -- 11 of 16 -- 12 unlawful pursuit and that he had made a complaint against C in relation to C’s misconduct on a weekend shift. [54] BJB also said that if events had occurred as B and C said then B and C should be in a position to be able to comment on what size his penis was and whether he was circumcised, which they were unable to do. [55] BJB also refers to the ongoing interactions he had had with B and C since December 2016 and to a ‘wad of emails’ in which he chastises them, in particular where BJB has raised their behaviour in the office, their negativity in the office, their failure to do things and their failure to go by policy and procedure. Those aspects of their behaviour were ultimately addressed by Senior Sergeant A but only after BJB had raised them. [56] BJB also queries where E was on the day of the alleged incident and why no-one has mentioned her, given she was also rostered on that day. BJB says that there is no explanation as to why they left it for four months before making a complaint and that they came up with the date of 30 April 2017 after looking at the roster but have not attempted to explain where E was or why she had no recollection of any such incident. [57] BJB emphatically denies any wrongdoing and asks, rhetorically, why, with 9 years left in the job, he would put that job in jeopardy. He says that he wouldn’t believe anything C says because he is ‘nothing but an alcoholic’ and that B is a drunk and has been nothing but belligerent and condescending and has begrudged him ever since he made Sergeant.41 He also believes that B and C sat down together and colluded the story.42 E’s evidence [58] E gave a statement in which she said that she had become aware of the allegation that BJB had exposed himself to B and C when she was working in Tank Street sometime between August and November 2017 but could not recall who informed her of the matter.43 She also heard that D was present in the room at the time of the alleged incident and that he had heard B and C say comments similar to ‘put it away’ to BJB. [59] On a date in December 2017 E said she had a conversation with Senior Sergeant A, one of the officers investigating the incident and who ultimately wrote the final report, who said it had been brought to his attention that the incident occurred on a shift when she had been working. E said that she told Senior Sergeant A that she did not have any recollection of any incident.44 Consideration [60] The respondent bears the onus of proving on the balance of probabilities that the matters occurred. Due to the severity of the potential sanction, being dismissal from the police service, the probity and reliability of the evidence required to meet that standard is high. [61] The accounts of BJB on the one hand, and B and C on the other, are diametrically opposed. Notwithstanding the requests made by BJB’s legal representative that the respondent make its witnesses available for cross-examination at the police disciplinary hearing, the respondent declined. No witnesses for the respondent or BJB 41 Ibid at 9: SOR at 182. 42 Ibid at 10: SOR at 183. 43 Statement of E dated 25 July 2018: SOR 186 to 187. 44 Statement of D 1: SOR 165. -- 12 of 16 -- 13 were called to give evidence at the Tribunal hearing. This makes assessment of the respective accounts of what occurred on that day very difficult. I have not had the opportunity to observe the witnesses nor to have the competing accounts put to them. There are, of course, more witnesses who have given accounts of what occurred that day on the respondent’s case than there are on BJB’s but that is not sufficient alone, in my view, to discharge the relevant onus in the particular circumstances of this case. [62] There are a number of matters which cause me concern about the evidence given by the respondent’s witnesses. I deal with those matters below. For the reasons which follow, I am not satisfied to the requisite Briginshaw standard that the case for the respondent has been made out. Conflicting accounts given by B [63] There are fundamental inconsistencies in the versions of the alleged incident given by B. In saying that, I am conscious that my impression of B’s evidence is different to that of Senior Sergeant A, who concluded that he was ‘swayed by the consistency and veracity of [B’s] claim’.45 [64] B describes the event very differently when he first discloses it to S in the course of a rant about BJB and his supposed double-standards. In short, B says that he was seated at the time, that BJB came up to his desk, stood over him, and that when B looked up, ‘there it was’. There is no mention of a preceding conversation, joke or banter between B and BJB about penis size. I note also that the details are drawn out of B by a persistent S at the time and that B is very reluctant for the matter to go any further. [65] By the time of the interview B describes a situation involving all three of them, namely, himself, BJB and C which began with them all having a joke about penis size. B says that they were standing in a triangle formation and that he, B, was standing up facing BJB, a few metres from him. Rather than being at his desk, becoming aware of something, looking up and seeing an exposed penis, B later describes watching the incident unfold in the course of a joke about penis size, and in that context, watches BJB to see what he is doing, not believing that he will actually undo his fly and expose himself. Consistently with that version, in his statement of 25 August 2017, B says they were all standing and that he looked down to see BJB’s exposed penis. [66] B then says that he (and C) both told him to ‘put it away’ and that they then all walked out of the office, still joking about what they’d just seen. [67] Further, B says at one stage that he thinks BJB may have had a helmet on but later, on reflection, says he ‘doesn’t know about the helmet’. This is concerning because B makes a point during one interview of describing BJB at the time of the alleged exposure, as having a ‘big smirk’ on his face. It is difficult to understand how B could have been unsure about the helmet in these circumstances. Conflicting accounts between witnesses [68] In relation to the incident itself, there are a number of inconsistencies in the later version given by B with that of C. [69] B says that he and C were involved in the conversation with BJB that preceded the alleged exposure. D also gives evidence that C and B were both standing at the time, 45 Internal Investigation Group Investigation Report by S/Sgt A at 3: SOR 145. -- 13 of 16 -- 14 facing BJB and that they were all engaged in a conversation and joking around.46 C, on the other hand, says that while BJB was facing directly towards B at the time of the alleged exposure, that he was not.47 C says that he wasn’t involved in the conversation and only turned around when he heard B say something like, ‘put that thing away’. In other words, that he was not engaged in a three-way conversation or joke with B and BJB immediately prior to the alleged incident. (emphasis added) [70] B says that C made ‘a similar comment to his’ when he realised what had occurred, saying, in B’s words, ‘put it away you dirty prick or words to that effect’. However, C gave evidence that no-one else said anything to BJB. (emphasis added) [71] B says that it all happened as they were on their way out whereas C says he could not recall whether the alleged incident occurred at the beginning or the end of the shift. [72] B says they all walked out of the office together still laughing and bragging BJB for his ‘disgusting behaviour’ while C, on the other hand, says that after B’s comment, the mood changed and the laughing stopped. [73] I note that neither B or C wanted to offer their opinion as to whether BJB was circumcised or not or make any other observations, even though both claim to have seen his penis from a few metres away. Although BJB challenged both to do so and, in effect, suggested that they were unwilling to do so because they had not in fact seen his penis, I am not prepared to draw such inference. In my view, it would not necessarily be possible to make any observations in circumstances where, as alleged, the officers had a ‘glimpse’ and promptly turned away. [74] Further, although B and C both describe BJB as standing, leaning slightly back with his shoulders back and arms folded across his chest, D, who looked over immediately, heard B say to ‘put it away’, but did not see BJB re-adjusting himself or even bringing his arms back down to his side. D states that he ‘didn’t see anything’ when he turned after hearing a comment allegedly made by B, and that when he looked he ‘just saw the normal [BJB]’. [75] D also, in a later interview, cannot answer a question as to whether BJB was in uniform or not, answering ‘no idea’.48 D also, importantly in my view, says during the same interview, that ‘to tell you the truth’ he still does not know whether the incident occurred.49 He also says that he was ‘actually quite surprised that if [B] believed this occurred why wait this long …to report it’, reiterates that he did not see ‘anything’ and that he thought the comments by B were said ‘tongue-in-cheek’.50 [76] I also note that Senior Constable E states that, although she was working the shift when the alleged incident occurred, that she had no recollection of any such incident. This has not been satisfactorily explained nor has the claim that there were only four in the room during the alleged incident in circumstances when she was rostered on for that shift. Consistency of BJB’s evidence 46 Statement of D 1: SOR 165. 47 Interview of Snr Constable C dated 4 October 2017 at 2: SOR at 161. 48 Interview of Snr Constable D dated 15 October 2018 at 18: SOR at 315. 49 Ibid at 41: SOR at 338. 50 Ibid at 40: SOR at 337. -- 14 of 16 -- 15 [77] BJB has given consistent and emphatic evidence strenuously denying the allegations. BJB states that the entire incident was a ‘complete fabrication’ and that B and C colluded to make up the story by way of retaliation against BJB for the complaints he had made against each of them. The police disciplinary records of the respondent’s key witnesses [78] I find B’s disciplinary history significant, particularly where credibility of the witnesses is so important. I note, as I have said, that I was unable to make my own assessment of the witnesses as they were not called to give evidence, nor were they subject to cross-examination by BJB’s barrister. [79] Findings of misconduct have been made against B in relation to receiving benefits from a criminal, NS, and providing misleading information to the District Court in respect of a criminal proceeding.51 The misconduct in relation to both counts was substantiated.52 They arose from a complaint that B was associating with known criminals and performing services in return for gifts and included the fabrication of a loan agreement and receipts in an attempt to legitimise his financial dealings with NS.53 [80] B is a good friend of C and they socialise together outside work. C has also been the subject of disciplinary proceedings which involved dishonesty. In 2017 C, whilst on duty, drove an unmarked QPS service vehicle home whilst affected by alcohol; was absent from rostered duty and provided false and misleading information.54 [81] Given the disciplinary history of both B and C, which is of a nature that demonstrates dishonesty and a willingness to mislead and that they have both been the subject of complaints made against them by BJB, I am not prepared to make findings against BJB based on their untested evidence. I note also that B admitted to getting together with C and having spoken about ‘who saw what’ prior to writing their respective statements. BJB’s disciplinary record and character references [82] In contrast, BJB has no previous disciplinary history relating to matters of dishonesty or involving any incidents or behaviour of a similar nature to that alleged in these proceedings. He is a police officer of approximately 25 years’ service and held the rank of Sergeant. He has provided twenty-two references from professional colleagues of high standing in the police service who, without exception, speak to his upstanding character, integrity and professionalism. The majority of the referees express shock at the alleged incident and that it would be ‘completely out of character’ for him. Some go so far as to say that they believe the allegation to be false and vexatious. I also note that BJB is described in references from those with whom he has gone camping or played sport, as a naturally modest person. The medical evidence called by BJB [83] [Redacted] [84] [Redacted] 51 SOR at 392-393. 52 Ibid. 53 Ibid. 54 Ibid at 390-391. -- 15 of 16 -- 16 [85] [Redacted] [86] [Redacted] [86A] Paragraphs [83] to [86] have been redacted.55 Motive [87] There is evidence of a motive for the conduct of the respondent’s key witnesses, that is, that their conduct was motivated by retaliation for complaints made against each of them by BJB and as a culmination of feelings of resentment they have towards BJB and his management style in general. There is also significant professional jealousy by B towards BJB, who feels aggrieved at not having had the same career path as BJB. Conclusion [88] For all the reasons above, I do not consider the respondent has discharged its onus of proof. I cannot be satisfied, on the available evidence and to the requisite standard that matter one as particularised occurred. It follows that matters two and three are not substantiated. [89] The correct and preferable decision is that the decision of the respondent made on 10 July 2019 is set aside and substituted with a decision that matters one, two and three are not substantiated. [90] I order accordingly. 55 Paragraph 86A has been added to this version (the redacted version) of the Reasons. -- 16 of 16 --