Crime and Corruption Commission v Walker [2021] QCAT 66

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Walker [2021] QCAT 66 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v JAMES ALEXANDER WALKER (respondent) APPLICATION NO/S: OCR305-18 MATTER TYPE: Occupational regulation matters DELIVERED ON: 15 February 2021 HEARING DATE: 3 February 2021 HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: IT IS THE DECISION OF THE TRIBUNAL, BY CONSENT, THAT: It is declared that James Alexander Walker engaged in corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) and were he still employed by the Queensland Police Service a sanction of dismissal would have been imposed. CATCHWORDS: POLICE – EXTERNAL OVERSIGHT – corrupt conduct – where the Crime and Corruption Commission referred application for a finding of corrupt conduct – where respondent was a former member of the Queensland Police Service – where agreed schedule of facts – where parties agree as to sanction imposed – whether corrupt conduct has been proven – whether sanction of dismissal would have been imposed if the respondent were still employed by the Queensland Police Service Crime and Corruption Act 2001 (Qld), s 15, s 50, s 219B, s 219F, s 219I, s 219IA(3), s 450 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1), s 125 Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169 Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151 Gee v Deputy Commissioner Stewart [2012] QCAT 33 -- 1 of 9 -- 2 Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201 Wadham v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 578 APPEARANCES & REPRESENTATION: Applicant: E Mac Giolla Ri instructed by the Crime and Corruption Commission Respondent: A Edwards instructed by Gnech and Associates REASONS FOR DECISION [1] The Crime and Corruption Commissioner (‘the Commission’) commenced disciplinary proceedings for corrupt conduct against James Alexander Walker, a former member of the Queensland Police Service (‘QPS’).1 [2] At the commencement of the oral hearing before the Tribunal, the parties filed an agreed schedule of facts and confirmed that the Tribunal should accept the particulars of the charge as outlined in the agreed schedule of facts.2 The parties also agreed as to the wording of the proposed orders to be made by the Tribunal upon a finding of corrupt conduct. [3] The issue before me now is whether I am satisfied that Mr Walker engaged in corrupt conduct and, if so, whether an appropriate sanction in all of the circumstances is dismissal. [4] Mr Walker accepts that he engaged in corrupt conduct and that were he still employed by the QPS a sanction of dismissal would have been imposed.3 If the Tribunal finds corrupt conduct proved against a ‘prescribed person’ that is a former member of the QPS, in this case Mr Walker, s 219IA of the Crime and Corruption Act 2001 (Qld) (‘the Act’) provides for the making of a disciplinary declaration.4 A ‘disciplinary declaration’ means a declaration of the disciplinary finding against the prescribed person and the order the Tribunal would have made under s 219I(1) of the Act if the prescribed person’s employment or appointment had not ended.5 Relevantly, s 219I(4) of the Act provides that the Tribunal may, on a finding of corrupt conduct being proved against a prescribed person, order that, amongst other things, the prescribed person be dismissed. [5] The one charge of corrupt conduct as set out in the referral filed by the Commission is as follows: 1 Amended application or referral – disciplinary proceedings filed 18 September 2020 pursuant to s 50 of the Crime and Corruption Act 2001 (Qld) (‘the Act’). 2 Submissions on behalf of the applicant filed 3 February 2021 and agreed schedule of facts filed by consent on 3 February 2021. 3 See agreed schedule of facts filed 3 February 2021. 4 See s 219I(4) of the Act that empowers the Tribunal to make certain orders upon a finding of corrupt conduct being proved. Section 50(3)(a)(i) of the Act provides that a ‘prescribed person’ is a member of the police service. 5 The Act s 219IA(5). -- 2 of 9 -- 3 Charge 1 That between 20 October 2014 and 17 June 2015 at [redacted] and elsewhere in the State of Queensland, James Alexander Walker, a sworn officer in the Queensland Police Service, being the holder of an appointment in a unit of public administration engaged in corrupt conduct and: (a) that the conduct adversely affected, or could adversely affect, the performance of functions of the Queensland Police Service; and (b) the conduct resulted, or could have resulted in, the performance of functions of the Queensland Police Service being exercised in a way that was not honest or impartial or, alternatively, knowingly involved a breach of trust placed in James Alexander Walker as a member of the Queensland Police Service, or alternatively involved the misuse of information or material acquired in or in connection with his position as a police officer; and (c) James Alexander Walker engaged in the conduct for the purpose of benefiting [NE]; and (d) The conduct, would if proved, be a criminal offence and/or a disciplinary breach providing reasonable grounds for terminating James Alexander Walker’s services. (pursuant to section 15(1) of the Crime and Corruption Act 2001 (Qld) (‘the Act’). [6] The agreed schedule of facts setting out the relevant particulars of the charge are now set out below as follows: AGREED SCHEDULE OF FACTS – DISCIPLINARY CHARGE OF CORRUPT CONDUCT (a) Walker and [NE] met at [redacted] located in [redacted]. At some point prior to 19 October 2014, Walker's relationship with [NE] was such that Walker had a conflict of interest in any police matter where [NE] was a suspect, however it is not suggested that Walker and [NE] were ever more than [redacted] acquaintances or that Walker was ever aware that [NE] was in fact involved in dealing drugs. (b) In the late hours of 19 October 2014, QPS officers executed a search warrant at [NE’s] residence, which resulted in [NE] and his girlfriend [FM] being transported to [redacted] station. They were released in the early hours of 20 October 2014. (c) Upon leaving [redacted] police station, [NE] saw Walker and the two had a conversation. This resulted in Walker offering to drive [NE] and [FM] home; he did so, in an unmarked police vehicle. [NE] asked for Walker’s assistance in the charge and court process, telling Walker he had not had contact with police before. Walker agreed to give that assistance as a friend. (d) When asking his shift supervisor for permission to drive [NE] and his girlfriend home, Walker did not disclose his prior relationship with [NE]. (e) Given [NE’s] request for further advice, once they had reached [NE’s] -- 3 of 9 -- 4 residence Walker gave [NE] his business card, with contact details on it. (f) Approximately one week after the search warrant was executed, [NE] rang Walker and they discussed the search but in no more than terms which suggested that the search had upset [NE] and his girlfriend. (g) The obvious seriousness of [NE’s] position as known to Mr Walker from 20 October 2014 onwards, was.: (i) [NE’s] premises had been searched on foot of a warrant. (ii) A warrant can only issue where the issuing individual and the QPS officers applying for the warrant, believed there were reasonable grounds for suspecting that evidence relating to a crime would be at a place; (iii) Walker was aware that the 5-6 QPS officers involved with [NE] at [redacted] station were not local police. The number and origin of the officers involved should have indicated to Walker that [NE] was suspected of reasonably serious conduct; (iv) [NE] was charged with a relatively minor possession of steroids charge as a result of the search. (h) Despite the information at (g), above, Mr Walker indicated a willingness to assist [NE] with advice as to the process related to the charge. [NE] maintained, when talking to Walker that he was not involved in any criminal activity other than perhaps possession of some steroids for personal use. Walker accepted [NE’s] assurances. (i) On 30 October 2014, Walker arrested a person known for the purposes of these proceedings as ‘John Smith’ on an unrelated matter. Smith was found to have what appeared to be the drug 'ice' in a plastic bag in his pocket. Smith was transported to the [redacted] police station, where Smith told Walker that [NE] was the person who supplied him with the ice. (j) In light of Walker's prior association with [NE], Walker was obliged to refer Smith’s information about [NE] to his supervisor or another officer but did not do so. Walker later, in an interview, accepted that he should have done so, but explained that he thought Smith and any information he had given was completely unreliable, and that he believed that [NE] was not involved in drug dealing at all. (k) Not having declared his conflict of interest and in light of the information about [NE] available to Walker, the information received from Smith was such that Walker, as a police officer, was required to: (i) Fully explore Smith’s information with Smith with a view to -- 4 of 9 -- 5 obtaining the fullest and most useful information possible from him; (ii) Make a written or electronic note of the information; (iii) Conduct further investigations into the matter himself or cause further investigation to occur; and (iv) Update the appropriate police system to include the information and/or alert his supervisors and colleagues to the Information. (l) Walker did not take any required action on 30 October 2014 or thereafter in relation to the information from Smith that [NE] had supplied him with 'ice'. (m) Coincidentally, [NE] telephoned Walker on 30 October 2014. During that call Walker: (i) Told [NE] that someone in police custody at that moment was saying that [NE] supplied drugs; (ii) Identified the approximate location where that person had been picked up; (iii) Indicated to [NE] that he did not believe what the person was saying telling [NE] “I’d like to give you the benefit of the doubt, but mate he’s throwing your fucking name around-dealing and all sorts of shit. I know you got fucking rolled over last week”. (iv) Arranged to meet [NE] to talk to him about the situation. (n) Walker had a face to face conversation with [NE] at the [redacted] the following day. Walker said in a subsequent disciplinary interview that it was only during this conversation that he finally formed an adverse view of [NE]. Despite this, Walker did not take any appropriate action to follow up Smith’s information, even after this conversation, including that he did not provide an intelligence report on the information he had been given. He did, however from that point in time cut all contact with [NE], despite several subsequent text messages from [NE] attempting to maintain contact. (o) From what Walker had told [NE], he was able to work out that it was Smith who gave him (Walker) the information that [NE] was selling drugs. Walker was the only person who had this information. (p) It is alleged that Walker's conduct was intentional, not impartial, and involved a breach of the trust that was placed in him as a serving police officer. It was also a misuse of the information he had received. (q) It is alleged that Walker intended to benefit [NE] in the following ways: -- 5 of 9 -- 6 a. The information provided to [NE] on 30 October 2014 informed him that a person in custody was alleging that he was a drug dealer against the background of [NE] having already been the subject of police attention. Whilst it is not alleged that Walker knew [NE] was a drug dealer, he provided that information to [NE] to do with as he chose. Although there is no evidence that it had any effect, it had the potential to have given [NE] the opportunity to cease criminal activity prior to detection and/or dispose of evidence, advised him that one of his customers was not to be trusted, or, alternatively, advised [NE] that false information was being revealed to the police about him; b. Whether or not Walker believed Smith’s information, his failure to properly deal with Smith’s information protected [NE] from further investigation and/or reduced the effectiveness of further investigation into him. (r) It is accepted that Walker’s conduct amounted to a disciplinary breach providing reasonable grounds for terminating James Alexander Walker's services. (s) James Alexander Walker became a police officer on 30 June 2008 and ceased to be a police officer on 24 April 2020. [7] Turning firstly to the particulars of the charge, it is open for me to find that Mr Walker engaged in corrupt conduct for the purposes of s 15 of the Act.6 Relevantly s 15 of the Act, as in force at the time the disciplinary proceeding was started, provides as follows: 15 Meaning of corrupt conduct (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 6 See s 450 of the Act that provides that the Tribunal must hear and decide the disciplinary proceeding under the Act in the context of corrupt conduct within the meaning of s 15 as in force before the commencement on 30 October 2019. -- 6 of 9 -- 7 (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) is engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person; and (d) would, if proved, be – (i) a criminal offence; or (ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment. [8] I am satisfied that Mr Walker’s conduct adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of the QPS. [9] Mr Walker had a conflict of interest in any police matter where [NE] was a suspect. Mr Walker failed to disclose his prior relationship with [NE] to his shift supervisor. Mr Walker drove [NE] and his girlfriend home in an unmarked police vehicle from the police station. After [NE’s] home was searched by police and [NE] was charged with a minor possession of steroids charge, Mr Walker indicated a willingness to assist [NE] with advice as to the process related to the charge. [10] I find that Mr Walker’s failure to disclose his conflict of interest and willingness to assist [NE] with his police matter had the potential to undermine any further police investigation and undermines public confidence in the QPS. [11] Mr Walker later arrested a person known in these proceedings as ‘John Smith’ on an unrelated matter. Smith had what appeared to be the drug ‘ice’ in a plastic bag in his pocket. Smith told Mr Walker that [NE] was the person who supplied him with the drug ‘ice’. Mr Walker did not refer Smith’s information about [NE] to his supervisor or another officer, make a written or electronic note of the information or conduct any further investigations into the matter. [12] I find that Mr Walker’s failure to properly investigate and record information disclosed to him by Smith about possible criminal activity involving [NE] had the potential to undermine any investigation involving [NE] and undermines public confidence in the QPS. [13] Mr Walker disclosed information to [NE] that someone in police custody was saying that he ([NE]) supplied drugs. Although Mr Walker did not disclose Smith’s name to [NE] in a further face to face conversation the following day, [NE] was able to work out that it was Smith who gave Mr Walker the information that he ([NE]) was selling drugs. Mr Walker was the only person who had this information. [14] I find that Mr Walker’s disclosure of information to [NE] had the potential to undermine any investigation involving [NE] and undermines public confidence in the QPS. [15] I am satisfied that Mr Walker’s conduct was intentional, not impartial and involved a breach of the trust placed in him as a serving police officer. Mr Walker misused information received whilst performing his duties as a police officer. I am also satisfied that Mr Walker’s conduct benefited [NE] by, amongst other things, giving him an opportunity to cease criminal activity prior to detection and/or dispose of -- 7 of 9 -- 8 evidence. Mr Walker’s failure to properly investigate and record information given to him by Smith protected [NE] from further investigation and/or reduced the effectiveness of further investigation into him. [16] The parties accept and I agree that Mr Walker’s conduct amounts to a disciplinary breach providing reasonable grounds for terminating Mr Walker’s services were he still employed by the QPS. [17] I have considered the purpose of disciplinary proceedings as set out under s 219A of the Act: The purposes of providing for disciplinary proceedings are – (a) to protect the public; and (b) to uphold ethical standards within … the police service; and (c) to promote and maintain public confidence in the public sector. [18] I have also considered that the object of disciplinary proceedings is not punitive in nature but rather to impose an order to achieve the ‘public protective purposes’ as set out in s 219A of the Act.7 [19] In the present matter it is open for me to find that Mr Walker’s conduct is serious because it involved a failure to disclose a conflict of interest, a failure to investigate and record information provided to Mr Walker in the performance of his police duties. Further to that, Mr Walker failed to have regard to the trust placed in him as a serving police officer when he disclosed information to a person that he had a prior relationship with. The disclosure of the information had the potential to, amongst other things, give the person the opportunity to cease criminal activity prior to detection. [20] I am satisfied that were Mr Walker still employed by the QPS he would not be fit to continue serving as a police officer.8 A sanction of dismissal is appropriate in all of the circumstances of this matter and will achieve the purposes stated in s 219A of the Act. [21] I find that Mr Walker engaged in corrupt conduct pursuant to s 15 of the Act and were he still employed by the QPS a sanction of dismissal would have been imposed. I order accordingly. Non-publication order [22] Some of the particulars of the agreed schedule of facts identify or, if published, could lead to the identification of the names of witnesses who have provided confidential information in this matter.9 I am satisfied that it is appropriate to redact, where necessary, the Tribunal’s reasons to avoid the publication of the names of the relevant 7 Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151, [53]. See Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201. 8 See also Submissions on behalf of the applicant filed 3 February 2021;Gee v Deputy Commissioner Stewart [2012] QCAT 33; Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169; Wadham v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 578. 9 Tribunal decision made by consent on 3 February 2021 and 20 May 2019. -- 8 of 9 -- 9 witnesses who are the subject of a non-publication order. The Tribunal will deliver two sets of reasons: one set to the parties and a redacted set for publication. -- 9 of 9 --