Crime and Corruption Commission v Shearer [2021] QCAT 215

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Shearer [2021] QCAT 215 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v NAOMI C’ANN SHEARER (respondent) APPLICATION NO/S: OCR024-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 15 June 2021 HEARING DATE: 13 May 2021 HEARD AT: Brisbane DECISION OF: Member Fitzpatrick DIRECTIONS: The applicant must file two copies in the Tribunal and give to the respondent one copy of submissions in relation to penalty, by 4pm 6 July 2021. The respondent must file two copies in the Tribunal and give to the applicant one copy of submissions in relation to penalty by 4pm 27 July 2021. The applicant must file two copies in the Tribunal and give to the respondent one copy of any submissions in reply by 4pm 10 August 2021. The parties must advise the Tribunal in writing if they require an oral hearing in relation to penalty, or whether the question is able to be determined on the papers, not before 10 August 2021. In the event that either party requires an oral hearing, the matter will proceed on a date and at a time to be advised to the parties. CATCHWORDS: POLICE – EXTERNAL OVERSIGHT – corrupt conduct – where Crime and Corruption Commission referred application for a finding of corrupt conduct – where respondent member of the Queensland Police Force – where pleaded guilty to refusal by public officer to perform -- 1 of 16 -- 2 duty – whether statements made in disciplinary interview dishonest Crime and Corruption Act 2001 (Qld), s 15, s 50, s 219F, s 219I Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10(1)(b). Briginshaw v Briginshaw (1938) 60 CLR 336. Chapman v Assistant Commissioner Wilson [2011] QCAT 529 Chapman v Crime and Misconduct Commission [2012] QCATA 16 Duncan v Independent Commission Against Corruption [2014] NSWSC 1018 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 Officer JGB v Deputy Commissioner Gollschewski [2016] QCAT 348 APPEARANCES & REPRESENTATION: Applicant: J Gorry Counsel, instructed by P Price, Principal Lawyer, Crime and Corruption Commission Respondent: JR Hunter Queens Counsel, instructed by C Gnech, Gnech and Associates, Lawyers REASONS FOR DECISION [1] This is an application1 by the Crime and Corruption Commission (CCC) for a finding that: (a) the disciplinary charges of corrupt conduct against Naomi C’Ann Shearer are proved; and (b) the sanction imposed by the Tribunal is dismissal. [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 assistance. The respondent, and her colleague Senior Constable Evans, responded as they were nearby. 1 Crime and Corruption Act 2001 (Qld), s 50, s 219F, s 219I. -- 2 of 16 -- 3 [4] As a result of statements made by the respondent a breath test was not administered to the driver. [5] On 10 May 2019, the CCC rejected an Abbreviated Discipline Proceeding proposal from the Queensland Police Service, whereby the proposed sanction was a reduction in pay point from Senior Constable 2.8 to pay point Senior Constable 2.5 for a period of 12 months, subject to remedial conditions. The CCC considered the proposed sanction wholly inadequate, did not act as a deterrent, nor did it reflect the standards of the community. [6] The CCC concluded pursuant to section 49 of the Crime and Corruption Act 2001 (Qld) (the CC Act) that the matter involves an allegation of corrupt conduct by the respondent and that there is sufficient evidence supporting the commencement of disciplinary proceedings for corrupt conduct against the respondent in the CCC’s original jurisdiction. 2 [7] The CCC thereafter applied to this Tribunal to hear and decide upon the allegation of corrupt conduct against the respondent. [8] By agreement of the parties the question of sanction is to be determined after findings are made in relation to the question of whether the respondent has engaged in corrupt conduct. The hearing of this matter took place on 24 September 2020. The respondent did not require any of the applicant’s witnesses for cross examination. [9] The applicant tendered: (a) three volumes of the brief of evidence relied upon by the CCC filed 5 March 2020 and 24 September 2020 (Exhibit 1); and (b) Volume 4 – Transcript of audio of Constable Walsh’s body worn camera footage, dated 27 July 2016, prepared by the respondent (Exhibit 2). [10] The parties were directed to file written submissions and thereafter oral submissions were made on 13 May 2021. [11] The respondent does not contest Charge 1 and the particulars, set out below. The respondent contests particular 3 of Charges 2 and 3. I must be satisfied with respect to all three Charges that the respondent engaged in corrupt conduct. After receipt of submissions I will determine the appropriate sanction. Disciplinary Charges [12] The disciplinary charges of corrupt conduct the subject of the proceedings are set out in an amended document filed 8 October 2020. [13] The charges are: Charge 1 (s15 (1) corrupt conduct) That on or about 27 July 2016 at Alexandra Headland in the State of Queensland, Senior Constable Naomi C’Ann Shearer, a sworn officer of the Queensland Police Service, being the holder of an appointment in a unit of public administration, engaged in corrupt conduct and 2 Letter Crime and Corruption Commission to Acting Deputy Commissioner, Queensland Police Service dated 5 July 2019. -- 3 of 16 -- 4 (a) That conduct adversely affected, the performance of functions and the exercise of powers of a unit of public administration; and (b) The conduct resulted, in the performance of functions and the exercise of powers of the Queensland Police Service being exercised in a way that was not honest or impartial or, alternatively, knowingly or recklessly involved a breach of the trust placed in Senior Constable Naomi C’Ann Shearer as an officer of the Queensland Police Service; and (c) The conduct, would if proved, be a criminal offence or a discipinary (sic) breach providing reasonable grounds for terminating Senior Constable Naomi C’Ann Shearer’s services. Particulars of conduct alleged in Charge 1 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. Charge 2 (s15(1) corrupt conduct) That on 2 August 2016 at Nambour in the State of Queensland, Senior constable Naomi C’Ann Shearer, a sworn officer of the Queensland Police Service, being the holder of an appointment in a unit of public administration, engaged in corrupt conduct and (a) that conduct adversely affected, or could adversely affect, the performance of functions and the exercise of powers of a unit of public administration; and (b) the conduct resulted, or could have resulted, in the performance of functions and the exercise of powers fos (sic) the Queensland Police Service being exercised in a way that was not honest; and (c) the conduct, would if proved, be a disciplinary breach providing reasonable grounds for terminating Senior Constable Naomi C’Ann Shearer’s services. Particulars of conduct alleged in Charge 2 1. On 2 August 2016, and at all other relevant times, Naomi C’Ann Shearer was a sworn member of the Queensland Police Service. 2. On 2 August 2016 Naomi C’Ann Shearer was interviewed in a disciplinary interview conducted by Inspector Mike Miley. 3. In the interview on 2 August 2016 Naomi C’Ann Shearer was dishonest in the following way: (a) Stating that “My intent was not to give advice or tell her what she should do or shouldn’t do…and we left prior to the offender or driver leaving the scene Charge 3 (s15(1) corrupt conduct) -- 4 of 16 -- 5 That on 2 August 2016 at Nambour in the State of Queensland, Senior Constable Naomi C’Ann Shearer, a sworn officer of the Queensland Police Service, being the holder of an appointment in a unit of public administration, engaged in corrupt conduct and (a) That conduct adversely affected, or could adversely affect, the performance of functions and the exercise of powers of a unit of public administration; and (b) The conduct resulted, or could have resulted, in the performance of functions and the exercise of powers of the Queensland Police Service being exercised in a way that was not honest; and (c) The conduct, would if proved, be a disciplinary breach providing reasonable grounds for terminating Senior Constable Naomi C’Ann Shearer’s services. Particulars of conduct alleged in Charge 3 1. On 2 August 2016, and at all other relevant times, Naomi C’Ann Shearer was a sworn member of the Queensland Police Service. 2. On 2 August 2016 Naomi C’Ann Shearer was interviewed in a disciplinary interview conducted by Inspector Mike Miley. 3. In the interview on 2 August 2016 Naomi C’Ann Shearer was dishonest in the following way: (a) Stating that “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.” Definition of Corrupt Conduct [14] The parties submit and I accept that the current definition of corrupt conduct in section 15(1) of the CC Act applies. That is: (1) 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 – -- 5 of 16 -- 6 (i) a criminal offence; or (ii) a disciplinary breach providing reasonable ground for terminating he person’s services, if he person is or were the holder of an appointment. Relevant questions [15] As to Charge 1 the facts described are not in dispute and I find they occurred as described. [16] As to Charges 2 and 3, it is not in dispute that the respondent was at the relevant time a sworn member of the Queensland Police Service, nor that she participated in a disciplinary interview on 2 August 2016 conducted by Inspector Mike Miley. It is not in dispute that the respondent said the words attributed to her in the particulars of the charges. [17] The questions on which I must make findings are: (a) Did the conduct referred to in Charge 1 fall within s 15 of the CC Act? (b) Was the respondent dishonest when she said in the disciplinary interview: “My intent was not to give advice or tell her what she should do or shouldn’t do…” (c) Was the respondent dishonest when she said in the disciplinary interview: “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.” (d) Did the making of either statement adversely affect or could it have adversely affected the performance of functions of the Queensland Police Service (QPS), and did the making of either statement result in or could it have resulted in the exercise of a power which is not honest, involves a breach of trust or a misuse of information? (e) Would the making of either statement, if proved, be a criminal offence, or a disciplinary breach providing reasonable grounds for terminating the respondent’s services? Does the conduct in charge 1 fall within s 15 CC Act? [18] It is not contested by the respondent and I find in accordance with the submissions made by the applicant that: (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 of 16 -- 7 [19] These factors satisfy the limbs in s 15(1) of the CC Act. At this stage I am not prepared to go further and find that the respondent’s conduct would be a disciplinary breach providing reasonable grounds for terminating the respondent’s services. I have received no submissions from the parties in relation to sanction. That aspect of the hearing is to be dealt with at a later point. Was the respondent dishonest? Applicant’s submissions [20] As to charge 2, it is said the respondent’s statement in the disciplinary interview that: “My intent was not to give advice or tell her what she should do or shouldn’t do…” was wilfully false and was given in an attempt to avoid accountability for her conduct. The basis for that submission is that the respondent’s physical demeanour and words said are evidence that she in fact advised Senior Constable Blunt and Constable Walsh not to breath test the driver. [21] The applicant refers to footage recorded by Constable Walsh on a body worn camera (BWC), disclosing the respondent’s demeanour and actions, and recording what it says was advice given. The applicant submits that the answer given in the disciplinary interview was a deliberate attempt to avoid culpability for the advice she provided to the other officers at the scene, which resulted in a dereliction of their duty. [22] I do not accept the submission that the video footage of the respondent’s physical demeanour reveals she “intended to give advice” or to “tell her [ie. Senior Constable Blunt] what she should do or shouldn’t do”. [23] I am unable to conclude as submitted by the applicant that the respondent’s body language was of superiority and was intimidating. To the contrary, the respondent appears relaxed, smiling and helpful. She has her arms crossed in the manner of a person adopting a stance for the purpose of settling into a discussion. Conversation was held in an ordinary tone. Senior Constable Blunt appears fully engaged in the conversation and in fact gives the impression that she agrees with what the respondent has to say. [24] The question is: what did the respondent intend when she said what she said? Did she intend to advise the uniformed police officers not to breath test? The submissions extract a number of statements which it is said were advice and opinions to that effect. [25] The statements are not set in the context of preceding or following remarks and do not record the input of Senior Constable Blunt or the respondent’s colleague. In considering this matter, I have done so. [26] I have put the remarks said to amount to advice in bold in the context in which they emerge in the conversation and note what I draw from the exchanges. I have dealt with all the words attributed to the respondent as “advice” with respect to both Charges 1 and 2, given there is considerable cross-over. [27] It is also important to bear in mind that the advice said to have been given took place between three and sometimes four participants, on the side of a busy, noisy road, in the space of about three minutes. The evidence reveals that prior to the respondent and her colleague arriving, Senior Constable Blunt had told the driver to wait for twenty minutes so that his mouth alcohol might clear, had asked and been told by her senior officer at the base to administer a breath test and had called for assistance. -- 7 of 16 -- 8 [28] The transcript and the BWC footage record: (a) After the respondent learns that no breath test has been administered Constable Walsh goes on to describe what occurred with the driver. (b) Constable Walsh explains that the driver said words to the effect: I’m a sergeant of Vic police. Can you let me go? (c) Neither Senior Constable Blunt nor Constable Walsh say that they have been directed to administer a breath test by their senior officer. Absent that information I infer that the respondent interpreted the situation as Senior Constable Blunt being uncertain as to whether she should in fact let the driver go and seeking guidance. (d) The respondent does not suggest that Senior Constable Blunt let the driver go. She simply comments in a conversational way: “I didn’t - I didn’t realise there hadn’t been a breath test done at all”. The applicant says that is advice or an opinion. I do not see how that is the case. The respondent is merely establishing what has occurred in relation to the breath test. (e) The respondent then says: “…it’s really up to you.” (f) It is Senior Constable Blunt who raises the prospect of letting the driver go, by saying: “But what if he brags”. Letting the driver go had not been mentioned as a possibility by anyone, other than the driver, until that point. One could reasonably draw from what Senior Constable Blunt says that letting the driver go was an option available to her. (g) The respondent makes an observation in response to the query raised by Senior Constable Blunt: “But there’s no breath test done. He’s not going to tell anyone. He’s not going to tell a fucking soul.” The comment is not advice to act. At worst it is reassurance given to Senior Constable Blunt and an answer to the question she raised. (h) Again, the respondent says that it is a matter for Senior Constable Blunt: “Look, it’s up to you. Because you’ve stopped him”. The respondent could not be clearer as to the fact that Senior Constable Blunt bears the responsibility to administer the breath test. That is not advice not to breath test. (i) More conversation follows and the respondent’s colleague asks: “And there’s no other indicia?” Senior Constable Blunt may not have heard or understood because she says: “Sorry?”. The respondent offers an explanation of her colleague’s question: “There’s nothing. He talks alright”. Senior Constable Walsh responds to the effect of not too bad and that if the driver goes over it’s only going to be minor. The respondent has given an explanation of a question from Senior Constable Blunt, she has not given advice not to breath test. (j) At that point, knowing that no test has been administered and that the driver is not exhibiting any indicia of being under the influence of alcohol, the respondent says what she thinks: “yeah. I reckon if you get – tell him to park up and …” The applicant’s submissions then merge three following comments as the one statement. In fact the comments are interspersed with statements made by the respondent’s colleague and Senior Constable Walsh. The applicant’s submissions give a different impression to what can otherwise reasonably be drawn from the exchange. -- 8 of 16 -- 9 (k) As the respondent pauses, her colleague interjects: “Reaffirm that it never happened.” (l) The respondent repeats that comment and returns to the significance of no test having been performed and the consequences if it had been: “Reaffirm that it never happened. Yeah. But you – it’s different if – I thought you’d done the third test and …” (m) Senior Constable Blunt interjects: “No” and the respondent continues: “…he’d gone over.” Again, Senior Constable Blunt says: “No”. The respondent returns to her thought pattern, reflecting that she had earlier misunderstood that a test had been performed (I see later that she finishes that thought pattern with what could be the only outcome if a breath test had been administered and the driver was over the limit): “That was my problem. If you haven’t done a test…” (n) Senior Constable Blunt re-affirms: “No. We haven’t done a test. We (interjection causing lack of audibility) straight away.” The interjection is the respondent saying: “Yeah. But don’t you go telling anyone either.” I accept that this comment is advice to at least Senior Constable Blunt with whom she was in conversation, not to tell anyone she had not performed a test. Constable Walsh responds: “No” and Senior Constable Blunt responds: “Oh, hell no.” (o) The respondent goes on to say: “Do you know what I mean? Like, I would just say to him just park the car – I don’t know where he can park it though.” The respondent is saying what she would do. She admits she is giving advice to get the car off the road. (p) Again, after discussing where the car could be parked, the respondent says: “It’s entirely up to you.” (q) Shortly after that the respondent offers an opinion: “Yeah. Yeah. That’s right. And – you wouldn’t be able to – if he was a sergeant here, technically you wouldn’t test him”. (r) Senior Constable Blunt responds: “Okay”. The respondent goes on with her opinion: “You’d have to get a senior sergeant to come and do. Do you know what I mean? So, I myself – and this is all we can tell you, because it’s really your call.” The respondent is giving a personal opinion but again making it plain that it is a matter for Senior Constable Blunt as to how she proceeds. (s) Senior Constable Blunt gives an affirmative response: “Yep”. (t) Then the respondent sums up her position: “I wouldn’t. He wouldn’t. It’s up to you if you would. Because – and if you’d done the first test (Senior Constable Blunt interjects: “yeah”) “…then I would say (Senior Constable Blunt interjects: “yep”) “Like, he’s gone over. You’re just going to have, you know – but I would say, you know…”. This is the time when the respondent returns to a point she was seeking to make earlier, which I take to be that if a breath test had been administered and the driver was over the limit, there would be no discretion as to what should occur. I also note that in Constable Walsh’s statement she attributes words to the respondent which entirely change the complexion of what I interpret the statement made by the respondent to be. The words do not appear in the transcript tendered by the applicant but Constable Walsh says the respondent said: “…I wouldn’t do it and he wouldn’t do it to -- 9 of 16 -- 10 another cop”. I observe that the way in which Constable Walsh has chosen to arrange many comments attributed to the respondent does not accord with the transcript and is self-serving.3 (u) Senior Constable Blunt then immediately adopts a course of action. I note there is no hesitation and no exploration of other options. She says: “Well, one of us will have to take the car around the corner (interjection by the respondent: “Yeah. Yep”)…in case he is”. (v) The respondent says: “I’ll check that he’s alright with that. But if he’s alright with that (Senior Constable Blunt interjects: “yeah”) we’ll- you could even be able to park around the corner wouldn’t you? Like, there’s parks…” (w) Finally, Inspector Todd McMahon is seen to arrive to give assistance. Both the respondent and her colleague ask who he is. The applicant’s submissions with respect to Charge 3 create a statement without reference to Senior Constable Blunt’s interjections which results in a different meaning. The applicant’s submissions suggest a cover up. The way in which the conversation played out could reasonably be interpreted as the respondent suggesting that no further help is required. The respondent said “Don’t say anything. (Senior Constable Blunt interjects: “No”) Just say to him (Senior Constable Blunt interjects: “Yep. Yep. It’s all good.”)…that it’s all cool”. [29] It cannot be ignored that apart from saying what she herself would do, the respondent made it plain that the decision to breathalyse or not was a matter for the uniformed police officers who had required the driver in question to pull over. The respondent said on five occasions words to the effect: “…you know it’s really up to you”, and “It’s really your call”.4 To accept the applicant’s submissions those words would have to be ignored. [30] The respondent did not say words to the effect: “I advise you not to breath test him” nor did she give a direction not to breath test the driver. [31] I do not accept the submission that the respondent’s demeanour and words said on 27 July 2016 reveal the respondent giving advice to the uniformed police officers not to breath test the driver and that she has therefore been dishonest in saying it was not her intention to give advice not to administer a breath test. Although I do not accept the premise for the applicant’s submission as to dishonesty, I will later deal with the definition of dishonesty and determine if the words said may in any event be found to be dishonest. [32] As to Charge 3, the impugned statement made by the respondent in the disciplinary interview was: “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”. The applicant submits that the statement is a lie. [33] The bases for the applicant’s submission are seven examples drawn from the BWC footage of what it says is advice given to the uniformed police officers.5 The statements form part of the list of comments I have dealt with in relation to Charge 2. 3 Exhibit 1, Tab A, Statement of Melissa Walsh, dated 16 January 2018, paragraphs 28, 30, 31, 32. 4 Item 39(b) of Exhibit 1 at 04.28minutes of the BWC footage. 5 Ibid. -- 10 of 16 -- 11 [34] I find that the respondent has, in the discussion with the uniformed police officers, said what she personally would do in the situation but made it plain it was a matter for them as to whether they administered a breath test. [35] I do not think there is any evidence of the giving of advice not to administer a breath test. As I concluded earlier, there is no express advice or direction given not to breath test and Senior Constable Blunt was reminded on five occasions that she must make the decision as to what to do. [36] The respondent has said that she intended to give advice about parking the driver’s car elsewhere. I accept that was her intention. [37] The applicant seeks to couple the evidence drawn from the footage with the evidence of the uniformed police officers as evidence that the respondent gave advice not to breath test and therefore was dishonest in her disciplinary interview. [38] Senior Constable Blunt was a sworn police officer of approximately eight years at the time of the events. Senior Constable Blunt’s statement6 deflects all responsibility for failure to breath test the driver, to the respondent. Senior Constable Blunt says that “the whole vehicle intercept had then been taken out of my hands and DSC Shearer was in control. I was too intimidated by DSC Shearer to continue with the breath test…” [39] I do not think the BWC footage reveals that scenario. Senior Constable Blunt can be heard proffering, in what sounds to be an eager tone, that the driver is: “Not - not too bad. Do you know what I mean? Like…Like, I think if it’s going to go over, it’s only going to be frigging minor”. When it is noted that the driver has not been tested and it is said: “don’t go telling anyone either”, Constable Walsh says “No” and Senior Constable Blunt says, emphatically: “Oh, hell no.” [40] An inference available on the evidence is that Senior Constable Blunt failed in her duty and in attempting to relieve herself of responsibility suggested that she was overwhelmed by the respondent’s intimidatory conduct. From there the applicant makes a leap in logic to conclude that the respondent must have intended to advise Senior Constable Blunt not to breath test the driver. I think that the logic is flawed, and that the evidence does not support the conclusion. [41] Constable Walsh had been a sworn police officer for approximately three years prior to the events on 27 July 2016. [42] I note that her statement purports to record the words spoken by the respondent. The words are not accurate by reference to the transcript tendered by the applicant.7 Constable Walsh also deflects all responsibility for not performing the breath test, entirely to the respondent and her colleague. It is remarkable that Constable Walsh is able to state clearly what she knew to be her duty in relation to administering the breath test, but nevertheless did not do her duty, speak up or offer another view. Constable Walsh seeks to absolve herself of responsibility by suggesting: “We weren’t given an opportunity to do what we were supposed to do because of the behaviour”. 6 Exhibit 1, tab A, statement of Leanne Joy Blunt dated 16 January 2018. 7 Exhibit 1, tab A, statement of Melissa Walsh, dated 16 January 2018, paragraph 28 and paragraph 31. -- 11 of 16 -- 12 [43] Again, there is flawed logic that because of Constable Walsh’s failings, the respondent must have intended to advise uniformed officers not to breath test the driver. The evidence does not support that conclusion. [44] I make the observation that if the conduct of the respondent and her colleague had been as “intimidating” as alleged by Senior Constable Blunt one would expect to see much more overbearing and directive behaviour on the part of the respondent and her colleague than is evident on the BWC footage and in the statements said to be the giving of advice. There is nothing in the footage whereby the respondent was “strongly suggesting”8 Senior Constable Blunt take no further action against the driver because he was a police officer. There is no basis given by Senior Constable Blunt for saying that she felt if she conducted a breath test “there would be negative repercussions for me.” There is no record of any discussion of “negative repercussions”.9 The respondent worked in the Child Protection Investigation Unit at Nambour. She was known to Senior Constable Blunt. It is difficult to see how or why Senior Constable Blunt would effect negative repercussions upon the uniformed officers over this issue. No explanation for the allegation is given by Senior Constable Blunt. It is improbable. Respondent’s submissions [45] The Respondent accepts that she did “in effect” give advice to Senior Constable Blunt on the night of 27 July 2016, but says that she did not direct Senior Constable Blunt. [46] It is said that the impugned statements as to her intention reflect that at the time the respondent did not see herself as giving advice. It is pointed out that it is a different thing from accepting on reflection that the conduct did amount to and was received as advice. [47] At the oral hearing Senior Counsel for the respondent framed the impugned statements as a rationalisation of her behaviour after the event. [48] The applicant does not address the meaning of “dishonesty”. The respondent refers to Chapman v Assistant Commissioner Wilson.10 I respectfully adopt the analysis of the Hon JB Thomas AM QC and Senior Member Oliver who said: A person will not be guilty of untruthfulness through mere inaccuracy or honest mistake. If a person believes a statement is correct at the time the person makes it, the person is not being untruthful. In the context of police interviews we consider that an officer is “untruthful” if he or she knowingly misleads the interviewer (by act or omission) or knowingly makes a false statement. [49] The applicant makes the following key points which I agree are germane: (a) the impugned statements should be put into context and not read in isolation from the other information conveyed by the respondent in the disciplinary interview. (b) Before the interview the respondent was shown a copy of the BWC footage. 8 Statement of Leanne Blunt, dated 16 January 2018, paragraph 68. 9 Ibid. 10 [2011] QCAT 529, [54]. -- 12 of 16 -- 13 (c) No complaint has been made about any of the respondent’s answers to questions put to her by the interviewer, other than the two impugned statements. (d) The respondent gave a full and open account of the event. (e) When asked if she would do anything differently the respondent said: “…it wasn’t intended and I know that she [i.e Senior Constable Blunt] may have taken it as us giving advice, that’s not how the intention – intended at all…” (f) The respondent acknowledged that she understood that Senior Constable Blunt may have taken what the respondent said as advice to act in a certain way. That acknowledgement is reflected in the respondent’s plea of guilty to the criminal charge and in her acceptance of Charge 1 and that her conduct was a cause of the breath test not being administered. (g) The interviewer asked: “Was there anything different that occurred in relation to how you presented yourself on that night to any other night?” In response the respondent said: “No. No, not really. I was just having a general conversation that was my intention. Just a general conversation with a colleague in relation to how I would deal with it…But obviously like I said, that’s not my area, so I’ve got no expertise in that area. It was just general conversation. My intent was not to give advice or tell her what she should do or shouldn’t do and we left prior to the offender – or driver leaving the scene.” (h) Further: “There was no indicia and I assumed she was going to breath test him before she left. 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. So I did advice (sic) that perhaps the vehicles could be move (sic) around the corner, umm to stop other vehicles from swerving into the other lane.” (i) Taken in context, there is nothing false about the statements. The respondent’s arrival at the scene was co-incidental, she could not have attended intending to advise Senior Constable Blunt not to breath test the driver. There were multiple occasions when the respondent stressed that administering the test was up to Senior Constable Blunt; the fact that Senior Constable Blunt understood the respondent’s comments as advice does not impeach the respondent’s statement to the effect that this was not her intention. (j) Properly understood the alleged dishonesty in Charge 3 amounts to effectively the same allegation as Charge 2. There is no evidence capable of establishing any falsity in that statement of past intention. (k) The meaning conveyed by the respondent’s statements was that her conduct had amounted to the giving of advice about the breath test, but that giving such advice had not been her intention on the night in question. [50] Because the respondent made it clear in the interview that she acknowledged Senior Constable Blunt had taken her comments as advice not to breath test the driver, I do not think it is possible to conclude that she knowingly misled the interviewer or knowingly made a false statement as to her intention when engaging in conversation with Senior Constable Blunt. [51] As I have found, the respondent’s demeanour and tone in the dialogue with Senior Constable Blunt was consistent with a general (not directive) conversation, which -- 13 of 16 -- 14 covered what the respondent would do in the circumstances, but left it up to Senior Constable Blunt as to what course she might adopt. That finding is consistent with a finding that the respondent did not mislead or intend to mislead the interviewer as to her subjective intention during the event, despite what later transpired. [52] This is a case with grave consequences for the respondent. For the reasons given in making my findings, I do not think the applicant has established on the balance of probabilities, to a level of reasonable satisfaction for the Tribunal,11 that the respondent’s statements as to her subjective intention were dishonest and made to mislead the interviewer. Did the making of either statement adversely affect or could it have adversely affected the performance of functions of the QPS or a person holding an appointment, and did the making of either statement result in or could it have resulted in the exercise of a power which is not honest, involves a breach of trust or a misuse of information? Would the making of either statement, if proved, be a criminal offence, or a disciplinary breach providing reasonable grounds for terminating the respondent’s services? [53] It is not submitted by the applicant that either statement in fact adversely affected the performance of functions of the QPS. It is submitted that the alleged dishonesty could have had the following consequences: (a) perverting the disciplinary investigation process by causing the investigation (including the disciplinary interview) to be exercised in a way: (i) that was not honest; (ii) reaching an inadequate conclusion on an incorrect factual basis; (iii) potentially the respondent avoiding further disciplinary investigation and/or criminal charges; (iv) other officers (including Blunt and Walsh) being disciplined and/or criminally charged. (b) The applicant does not give any example of how the investigation may not have been “honest”. (c) It is difficult to see how, when an acknowledgement is made as to the effect of the respondent’s conduct, that an inadequate conclusion on an incorrect factual basis could have been reached or that she may have avoided further disciplinary investigation or charges. (d) Likewise, in relation to other officers being incorrectly disciplined and/or charged. I observe that however one looks at the respondent’s conduct, the conduct of Blunt and Walsh was properly a matter for scrutiny. In that regard an investigation had to hand the BWC footage and the witness statements of other officers so that a statement of the respondent’s subjective intention 11 Briginshaw v Briginshaw (1938) 60 CLR 336, 361-363; Crime and Corruption Act 2001(Qld), s 219D, s 219F and s 219I; Officer JGB v Deputy Commissioner Gollschewski [2016] QCAT 348, [71]; Chapman v Crime and Misconduct Commission [2012] QCATA 16, [13]. -- 14 of 16 -- 15 (combined with an acknowledgement of the effect of her conduct) was unlikely to be significant. (e) Perverting the investigation so as to undermine public confidence in the QPS and impacting adversely on morale within the QPS. I do not accept, given the acknowledgement made by the respondent, that perverting the investigation was a likelihood. (f) The actions could be an offence of perverting the course of justice under section 140 of the Criminal Code. Again, the respondent’s acknowledgement of the effect of her conduct makes that outcome highly unlikely. (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 employment. Bearing in mind that I have found the statements were not dishonest. Respondent’s submissions [54] The respondent says that the applicant has not identified a function or power that could have been adversely affected by the alleged dishonesty. I consider that the conduct of the investigation and disciplinary interview have been identified as the relevant function or power. I agree with the respondent’s submission that it has 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”; however, arguably dishonest statements may have resulted in a misuse of information acquired in the interview. That is a hypothetical possibility, which seems remote and speculative given all the information available to the investigators, apart from the impugned statements, which in any event I have found were not dishonest. [55] The New South Wales analogue of section 15 of the Crime and Corruption Act 2001 (Qld) has been analysed in a number of cases to which I was referred by the respondent.12 Most helpful is the observation by McDougall J in Duncan at first instance, that conduct which “could” adversely affect official functions, leaves for consideration the degree of probability, or certainty that is required, before it can be said that conduct falls into that category. That is, what is the necessary degree of possibility? His Honour concluded that such an enquiry is facts driven.13 [56] My findings are consistent with a view that the possibility the impugned statements could adversely affect the performance of the QPS functions is so low as to be discounted. Conclusion [57] I conclude that the conduct referred to in Charge 1 amounts to corrupt conduct within the terms of section 15 of the CC Act. 12 Duncan v Independent Commission Against Corruption [2014] NSWSC 1018; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; Duncan v Independent Commission Against Corruption [2016] NSWCA 143. 13 Duncan v Independent Commission Against Corruption [2014] NSWSC 1018, [73], [75]-[76]. -- 15 of 16 -- 16 [58] I conclude that the impugned statements referred to in Charges 2 and 3, were not dishonest. [59] Further, the impugned statements referred to in Charges 2 and 3 have not been established as falling within section 15 of the CC Act and do not constitute corrupt conduct within the terms of section 15 of the CC Act. Directions [60] The proceeding must now deal with the question of sanction. The following directions are made. 1. The applicant must file two copies in the Tribunal and give to the respondent one copy of submissions in relation to sanction, by 4pm 6 July 2021. 2. The respondent must file two copies in the Tribunal and give to the applicant one copy of submissions in relation to sanction by 4pm 27 July 2021. 3. The applicant must file two copies in the Tribunal and give to the respondent one copy of any submissions in reply by 4pm 10 August 2021. 4. The parties must advise the Tribunal in writing if they require an oral hearing in relation to sanction, or whether the question is able to be determined on the papers, not before 10 August 2021. 5. In the event that either party requires an oral hearing, the matter will proceed on a date and at a time to be advised to the parties. -- 16 of 16 --