Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2) [2021] QCATA 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2) [2021] QCATA 42 PARTIES: ASSISTANT COMMISSIONER BRIAN JA WILKINS CRIME AND CORRUPTION COMMISSION (applicants) v JOSHUA GUNTER (respondent) APPLICATION NO/S: APL305-19 ORIGINATING APPLICATION NO/S: OCR114-19 MATTER TYPE: Appeals DELIVERED ON: 15 April 2021 HEARING DATE: 11 February 2021 HEARD AT: Brisbane DECISION OF: Deputy President Judge Allen QC Member Browne ORDERS: Leave to appeal is granted. Appeal allowed on Grounds 3 and 4. The Tribunal’s decision of 15 October 2019 that Matter 1 set out in the disciplinary proceedings notice dated 23 November 2018 is not substantiated is set aside and the following decision is substituted: The decision of Assistant Commissioner Brian JA Wilkins made on 18 March 2019 that a finding of misconduct for Matter 1 was substantiated, is confirmed. The application for leave to rely upon fresh evidence is refused. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of the names of the persons the subject of the information accessed by Joshua Gunter on QPRIME, the name of the construction firm which undertook the renovation of Sergeant Gunter’s -- 1 of 20 -- 2 home, and any information that would identify those persons or that firm including Sergeant Gunter’s residential address, is prohibited. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where decision maker made findings of fact – whether decision maker entitled to make findings – whether error in the exercise of discretion – whether leave should be granted to rely upon fresh evidence APPEAL AND NEW TRIAL – NEW TRIAL – where error in the Tribunal’s decision – where error of mixed fact and law – where appeal allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 28, s 42, s 62, s 66, schedule 3 Crime and Corruption Act 2001 (Qld) s 33, s 37, s 219H Police Service Administration Act 1990 (Qld), s 2.3, s 3.2(2) Aldrich v Ross [2001] 2 Qd R 235 Assistant Commissioner Brian JA Wilkins & Anor v Gunter [2020] QCATA 101 Briginshaw v Briginshaw (1938) 60 CLR 336 Re Bowen [1996] 2 Qd R 8 Cachia v Grech [2009] NSWCA 232 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Gunter v Assistant Commissioner Wilkins [2019] QCAT 410 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Pickering v McArthur [2005] QCA 294 Police Service Board v Morris (1985) 156 CLR 397 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Quilter v Mapleson (1882) 9 QBD 672 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 APPEARANCES & REPRESENTATION: Applicants: M Nicholson instructed by Queensland Police Service Legal Unit A Gorry of the Crime and Corruption Commission -- 2 of 20 -- 3 Respondent: T Schmidt instructed by Calvin Gnech & Associates REASONS FOR DECISION Assistant Commissioner Brian Wilkins (‘Assistant Commissioner’) seeks to appeal against the Tribunal’s decision made in its review jurisdiction setting aside the Assistant Commissioner’s finding that one matter of misconduct presented against Joshua Gunter is substantiated.1 The Assistant Commissioner also seeks leave to rely upon fresh evidence or material that was not before the Tribunal below. In an earlier decision of this Appeal Tribunal, the Crime and Corruption Commission (‘the Commission’) was joined as an applicant to this proceeding limited to making submissions in respect of the grounds of appeal identified in the application for leave to appeal or appeal and the supporting submissions filed by the Assistant Commissioner.2 There are six grounds of appeal that the Assistant Commissioner identifies as errors of law for which leave to appeal is not required. The Assistant Commissioner identifies errors in the learned Member’s findings and his ultimate conclusion that he was not satisfied that Sergeant Gunter accessed information without an official purpose relating to the performance of his duties. The six grounds of appeal are set out below as follows: Ground 1: The Tribunal erred in finding; (a) that only limited reliance could be placed on Senior Sergeant McGuinness’ recollection of what was said to him by Joshua Gunter regarding the self- disclosure; (b) that Joshua Gunter’s evidence was not inconsistent with the account he gave to Senior Sergeant McGuinness. Ground 2: The Tribunal erred in accepting the explanation by Joshua Gunter that the searches of information on QPRIME that he made in respect of TBV, LDV, RNV, DNC and those persons’ associates were routine checks. Ground 3: The Tribunal erred when it decided it was not satisfied that Joshua Gunter accessed information without an official purpose relating to the performance of his duties. Ground 4: The Tribunal erred in its understanding of the QPS Standard of Practice 2012/13. The Tribunal had a fundamental misunderstanding of the nature of the standard of practice when it decided that the disciplinary charge was not proved on the basis: (a) The standard of practice does not prohibit a police officer from checking their own records; (b) The standard of practice does not prohibit a police officer checking on a person the police officer reasonably suspects of criminal activities merely 1 Decision of the Tribunal dated 15 October 2019 substituted a decision that Matter 1 as set out in the disciplinary proceedings notice dated 23 November 2018 is not substantiated. See Gunter v Assistant Commissioner Wilkins [2019] QCAT 410. 2 Assistant Commissioner Brian JA Wilkins & Anor v Gunter [2020] QCATA 101. -- 3 of 20 -- 4 because the police officer has a personal or commercial relationship with the person. Ground 5: The Tribunal erred when it decided that Joshua Gunter’s failure to follow up on suspicions was not what the disciplinary charge related to. Ground 6: The Tribunal erred by taking into account an irrelevant matter when it considered and decided it was not clear on the information presented what would have been visible to Joshua Gunter when he opened the records he accessed on QPRIME. The Assistant Commissioner seeks final orders that the appeal be allowed, and the decision of the Tribunal below be set aside and the Assistant Commissioner’s decision made on 18 March 2019 that a finding of misconduct for Matter 1 was substantiated be confirmed.3 In the oral hearing before this Appeal Tribunal, it was common ground that the review before the Tribunal below was in relation to substantiation only and did not relate to sanction. Further to that, if the appeal is allowed then sanction is not agitated by the Commission nor Sergeant Gunter. It was also common ground in the hearing before us and we agree that the non-publication order made by the Tribunal below should be made by the Appeal Tribunal in the same terms. Relevantly, s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) permits such orders where necessary to avoid the publication of confidential information such as the information referred to in this matter that was accessed by Sergeant Gunter on QPRIME. In the oral hearing before the Appeal Tribunal, Mr Nicholson appearing for the Assistant Commissioner submitted that Grounds 2 and 3 relate to the learned Member’s conclusion that he was not satisfied Sergeant Gunter had accessed information without an official purpose. Mr Nicholson submitted that Ground 3 identifies errors in the learned Member’s inferences drawn from the facts. Mr Nicholson submitted that it was not open to the learned Member to draw the inferences and that was an error of law for which leave to appeal is not required. If, however, Ground 3 raises questions of mixed fact and law for which leave to appeal is necessary, Mr Nicholson submitted that leave should be granted in all of the circumstances of the matter. The question of whether leave to appeal should be granted is determined according to established principles: is there a reasonably arguable case of error in the primary decision;4 is there reasonable prospect the applicant will obtain substantive relief;5 is leave necessary to correct a substantial injustice to the applicant caused by some error;6 and is there a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage.7 We consider that each of the grounds of appeal require a consideration of relevant findings of fact made by the Tribunal below based on the evidence to ultimately find 3 Application for leave to appeal or appeal filed 11 November 2020. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. See also Pickering v McArthur [2005] QCA 294, [3] (Keane JA). 5 Cachia v Grech [2009] NSWCA 232, [13]. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578-580. -- 4 of 20 -- 5 that the one ground of misconduct is not proven. We are satisfied that each of the grounds of appeal raise questions of mixed fact and law for which leave to appeal is required. The grounds of appeal raise questions of general importance about the accessing of information contained within the Queensland Police Service (‘QPS’) computer system, QPRIME and the QPS standard of practice for professional conduct. The grounds of appeal also raise questions of general importance about whether information accessed on QPRIME was for an official purpose. We are satisfied that leave to appeal should be granted. Relevant Background and Decisions Below The notice of disciplinary proceeding concerns Sergeant Gunter’s conduct as a police officer and allegations that between 9 November 2016 and 16 February 2017, inclusive, he accessed confidential information contained in the QPS computer system, QPRIME, without an official purpose related to the performance of his duties as a police officer. In the disciplinary hearing at first instance, Sergeant Gunter accepted seven of the eight particulars of the one matter of misconduct including Particulars 3, 4 and 5, respectively, that identify the times and dates during which Sergeant Gunter accessed information on QPRIME. Sergeant Gunter did, however, contest Particular 6, that the information accessed was not related to the performance of his duties as a member of the QPS. Relevant to the allegations of misconduct and accessing information on QPRIME is the QPS standard of practice for professional conduct identified as Standard of Practice 2012/33. The purpose of the Standard of Practice, as set out under section 1.1 ‘Purpose and Scope’ is as follows: • Inform all members of the QPS of the standards of conduct expected of them, consistent with the Code of Conduct; • Ensure that embarrassment is not brought upon the QPS or its membership because of a lack of understanding of the [Service’s] standards of conduct; and • Promote a positive image of the QPS and its members.8 Section 16 of the Standard of Practice concerns improper use of QPS information and provides that, amongst other things, in the performance of official duties, members of the QPS are granted access to many sources of information, confidential or otherwise. The Standard of Practice provides that when dealing with official or confidential information of the QPS, members are not to access, use or release information without an official purpose related to the performance of their duties.9 In the Assistant Commissioner’s findings and reasons for the disciplinary proceeding, consideration is given to section 2: ‘Personal Conduct’ of the Standard of Practice. 8 Appeal Book, p 57. 9 Ibid, p 16. -- 5 of 20 -- 6 The Assistant Commissioner says that members are not to act in a manner which will adversely reflect on the QPS generally or on themselves as members of the Service.10 In relation to section 16, ‘Improper use of QPS information’, the Assistant Commissioner says that with access to many sources of information, confidential or otherwise, comes a requisite level of accountability and trust that the information will only be used for official purposes.11 The Assistant Commissioner says that there is no excuse for members to betray the public trust by making any unauthorised, improper or unlawful access or use of any official or confidential information available to them in the performance of their duties.12 The Assistant Commissioner ultimately found that, amongst other things, Sergeant Gunter accessed and read QPRIME occurrences and the access was unauthorised and not related to the performance of his official duties.13 Following the disciplinary hearing, Sergeant Gunter applied to the Tribunal below for a review of the decision and the finding that one matter of misconduct was proven.14 The parties to the review proceeding below were Sergeant Gunter as the applicant and the Assistant Commissioner as the respondent decision-maker. The Tribunal below conducted a fresh hearing on the merits and delivered oral reasons for its final decision. Findings were made about the allegations of misconduct and the Standard of Practice. Relevant to the Tribunal’s function on review is the requirement that the Tribunal make its own decision on the available evidence to arrive at the correct and preferable decision. It is now convenient to adopt the learned Member’s summary of the eight particulars of the alleged misconduct, as set out in paragraphs [12] to [19], inclusive, of the learned Member’s published reasons, as follows: [Particular 1]… in July 2016, Sergeant Gunter signed a contract with Firm C to renovate his home, and work commenced in October 2016. [Particulars 2 and 3]… between 10.01 and 10.08 pm on 10 November 2016, Sergeant Gunter accessed confidential information contained within the QPS computer system called QPRIME, and that was in relation to a person called RNV (the administrative manager at Firm C), GPY (a former partner of RNV), TBV (the director and construction manager of Firm C) and LDV (an administrator at Firm C). [Particular 4]…at 10.13 am on 25 January 2017, Sergeant Gunter again accessed confidential information from QPRIME, and on this occasion, the information related to his own vehicle and driver’s licence details. [Particular 5]… between 2.04 and 2.11 pm on 15 February 2017, he accessed information from QPRIME. On this occasion, information related to DNC (a project manager for Firm C) and FRG (a labourer for Firm C). [Particular 6]…the information access was not related to the performance of Sergeant Gunter’s duties as a member of the Queensland Police Service. 10 Appeal Book, p 199. 11 Ibid, p 199. 12 Ibid. 13 Ibid, p 203. 14 See Crime and Corruption Act 2001 (Qld), s 219H. -- 6 of 20 -- 7 [Particular 7]… in May 2017, Sergeant Gunter lodged a formal complaint with the Queensland Building and Construction Commission concerning issues that he had with Firm C. [Particular 8]…on 24 May 2017, Sergeant Gunter reported to his officer in charge, Acting Senior Sergeant McGuinness, that he had accessed QPRIME to search those entities related to Firm C, resulting in a formal complaint being lodged by Acting Senior Sergeant McGuinness to the Ethical Standards Command. The Tribunal below observed the application of relevant authorities to the present matter such as Aldrich v Ross15 and correctly said that it would be appropriate to give considerable weight to the views of the original decision-maker (the Assistant Commissioner) who might be thought to have particular expertise in the managerial requirements of the police force.16 The Tribunal below found that, amongst other things, the Standard of Practice does not prohibit a police officer from checking their own records; and does not prohibit a police officer checking up on someone whom they reasonably suspect of criminal activity merely because that officer has some personal or commercial relationship with the person.17 The Tribunal below found that Sergeant Gunter did not breach the Standard of Practice and it was therefore not necessary to address whether Sergeant Gunter had an honest and reasonable mistake about whether he was authorised to do that, because, as stated by the learned Member, ‘[Sergeant Gunter] not only believed that he was entitled to do so, but that he also was entitled to make those checks’.18 The Tribunal below substituted its own decision and found that Matter 1 set out in the disciplinary proceedings notice dated 23 November 2018 is not substantiated. Ground 2: The Tribunal erred in accepting the explanation by Sergeant Gunter that the searches of information on QPRIME that he made in respect of TBV, LDV, RNV, DNC and those persons’ associates were routine checks. Ground 3: The Tribunal erred when it decided it was not satisfied that Sergeant Gunter accessed information without an official purpose relating to the performance of his duties. In addressing Grounds 2 and 3, the Assistant Commissioner submits that there is an error in the learned Member’s finding that the conduct of Sergeant Gunter accessing and conducting checks on the QPS computer system was routine.19 The Assistant Commissioner refers us to paragraphs [48] and [49] of the Tribunal’s reasons: On the balance of probabilities, I accept the explanation given by Sergeant Gunter that he made the checks for the reasons given in his interview and affidavit, and that he undertook what were, essentially, routine checks. I accept his assertion that such checks are not, by nature, narrowly confined, and that it is usual practice for police to check various aspects of a record when looking 15 [2001] 2 Qd R 235. 16 Reasons, [8]. 17 Ibid, [51]. 18 Ibid, [52]. 19 Outline of submissions for the appellant filed 24 January 2020, [52], [62]. -- 7 of 20 -- 8 into someone as a possible suspect. I am therefore not satisfied, on the balance of probabilities, that Senior Sergeant Gunter breached section 16 of the Standard of Practice 2012/33.20 I am not satisfied that he accessed information without an official purpose related to the performance of his duties. … The Assistant Commissioner argues that the finding by the learned Member that the conduct of Sergeant Gunter was routine failed to properly consider the evidence available and to understand the nature of the Code of Conduct and Standard of Practice for police officers.21 In the oral hearing before the Appeal Tribunal, Mr Nicholson submitted, and we accept that, as reflected in paragraph [20] of the Tribunal’s reasons, the ultimate issue before the Tribunal below was whether Sergeant Gunter accessed information on QPRIME without an official purpose relating to the performance of his duties.22 The Tribunal’s reasons refer to the particulars of misconduct and clearly state that it is common ground that he (Sergeant Gunter) took it upon himself to access information about those persons on QPRIME. The learned Member refers to Sergeant Gunter as having accessed a variety of information about a number of people including information about a defective vehicle and a complaint of indecent treatment.23 As reflected in the Tribunal’s reasons, Sergeant Gunter looked up information on other people on 10 November 2016, including someone listed as an associate of RNV who had been the partner of GPY and something described as a flag that TBV was the holder of a weapons licence.24 In relation to accessing information on 25 January 2017, the learned Member observed that Sergeant Gunter checked information on himself under his own name and opened an external link to Queensland Transport about vehicles and vessels registered in his own name. There was further accessing of information as observed by the learned Member on 15 February 2017, when Sergeant Gunter looked up various records about DNC including ones about burglary, drug intelligence and his licence. Sergeant Gunter did a search by phone number on FRG and looked up various information including information about the dangerous operation of a motor vehicle and about FRG’s licence.25 Sergeant Gunter’s self-report to McGuinness On a fair reading of the Tribunal’s reasons as a whole, we consider that critical to the learned Member’s finding at paragraph [48] of the reasons that Sergeant Gunter undertook ‘routine checks’, was the Tribunal’s consideration of the evidence before it about Sergeant Gunter’s explanation for accessing the information. Relevantly, the learned Member accepts the explanation given by Sergeant Gunter that he made the checks for the reasons given in his interview and affidavit. In paragraph [47] of the 20 Reasons, [48]. 21 Reasons, [48]. 22 Ibid, [20]. 23 Ibid, [21]. 24 Ibid, [22]. 25 Ibid, [24]. -- 8 of 20 -- 9 reasons the learned Member considers McGuinness’ evidence about what Sergeant Gunter told him (as detailed in Particular 8) about the QPRIME access (‘the self- report’) and Sergeant Gunter’s own evidence given to investigating officers during the disciplinary investigation of the allegation of misconduct. McGuinness was interviewed in September 2017 about Sergeant Gunter’s self-report back in May 2017. McGuinness provided his recollection of his interaction with Sergeant Gunter.26 As reflected in paragraph [25] of the Tribunal’s reasons, according to McGuinness, Sergeant Gunter had self-disclosed that he had access to information pertaining to the builder (‘Firm C’) that was doing renovation works at his house, mentioned that there had been a falling out or some dispute with the builder and said that he had wanted to ensure that they, referring to the builders, were not associated with criminal motorcycle groups.27 According to McGuinness, Sergeant Gunter outlined that the check was not related to any official QPS investigation and Sergeant Gunter had concerns with the builders being in his house where his wife and young child were present.28 As reflected in paragraphs [25] and [26] of the Tribunal’s reasons, Sergeant Gunter had concerns about people being in the house that he did not know and wanted to ensure that there were no issues of personal safety.29 McGuinness says that Sergeant Gunter also had concerns about the builders drinking, the builders’ and sub-contractors’ behaviour and a possible fraud offence being committed when the company had equipment stolen.30 The learned Member said that the self-report by Sergeant Gunter was prompted by him becoming aware that allegations may be made against him that he had accessed information about the builders. This, as reflected in the Tribunal’s reasons in paragraph [27], was accepted as being, as stated by the learned Member, ‘the prompt’ for the self-report by Sergeant Gunter to McGuinness.31 The learned Member made observations about McGuinness’ evidence and said that McGuinness’ recollection that Sergeant Gunter raised the possibility that the builders might be from a motorcycle gang is significant because that explanation did not, as stated, ‘figure in [Sergeant Gunter’s] later account to investigating officers or in his own affidavit’.32 The learned Member said that, as stated, ‘[s]o that could be indicative of inconsistent accounts given by [Mr] Gunter’.33 As reflected in paragraph [29] of the Tribunal’s reasons, the learned Member accepted a submission advanced in the proceeding before him on Sergeant Gunter’s behalf about the reliability of McGuinness’ evidence, that, amongst other things, McGuinness did not make a detailed note of the conversation he had with Sergeant Gunter and he (McGuinness) saw himself as a conduit of information. The learned Member accepted that, because of the absence of any detailed account from 26 Reasons, [25]. 27 Ibid. 28 Ibid. 29 Ibid. 30 Ibid, [26]. 31 Ibid, [27]. 32 Ibid, [28]. 33 Ibid. -- 9 of 20 -- 10 McGuinness at the time of the 24 May 2017 conversation, somewhat limited reliance can be placed on McGuinness’ recollection of what was said.34 Sergeant Gunter’s evidence about accessing the information The learned Member considered Sergeant Gunter’s evidence in paragraphs [31] to [38], inclusive, of the Tribunal’s reasons. The learned Member observed that Sergeant Gunter had been a police officer since 2002 and that he (Sergeant Gunter) disputed the notion that he had self-reported.35 In paragraph [32] of the Tribunal’s reasons, the learned Member observes that Sergeant Gunter said, during the interview, that his purpose in conducting the checks was, as stated, ‘to see what sort of character these people had: to see if they had any history’.36 Sergeant Gunter did not recall opening up an indecent treatment record relating to RNV and provided an explanation about his conduct such that, as stated by the learned Member, ‘he did not remember the tabs he went to; he thought nothing of the checks…[h]e said he looked up the three people [TBV, LDV and RNV], did some checks, and moved on’.37 In paragraph [33] of the Tribunal’s reasons, the learned Member observed that Sergeant Gunter said in his interview, if he had found what he referred to as a ‘smoking gun’, he would have taken the matter further by contacting other officers in the QPS.38 As stated in the Tribunal’s reasons, Sergeant Gunter could not remember looking up GPY. In relation to DNC and FRG, Sergeant Gunter said he could smell alcohol on their breath but accepted DNC’s assurances they were not intoxicated but DNC’s wife came to the house and told him (Sergeant Gunter) that they had been visiting the hotel after work every day so he thought it was a real possibility that those two gentlemen were intoxicated. Sergeant Gunter said, as reflected in the Tribunal’s reasons, that they (DNC and FRG) may have had disqualifications or been unlicensed or had suspended licences, so he checked their licences. As stated in paragraph [34] of the Tribunal’s reasons, Sergeant Gunter emphasised that he had not conducted any searches before the build commenced (on his house), he had only checked those particular small number of people and that was in response to information he had received. Sergeant Gunter was asked why he had looked so extensively at their records and he explained, as stated, ‘[it is] a matter of habit’. Sergeant Gunter said it is routine ‘muscle-memory’ to do a variety of checks and he has done that through the 16 years he has been a police officer. In relation to checking his own information, Sergeant Gunter, as reflected in the Tribunal’s reasons in paragraph [35], said that he did not recall doing it. Late in the interview, Sergeant Gunter conceded that he could have done more in terms of keeping records of these searches, he could have put information into an email or had a conversation with his officer-in-charge. As reflected in paragraph [36] of the Tribunal’s reasons, Sergeant Gunter said that ‘hindsight is a wonderful thing, but everyone is busy…[he did] not want to burden people with extra tasks in relation to information that ultimately went nowhere’. Further in paragraph [37] of the Tribunal’s reasons, the learned Member summarises Sergeant Gunter’s evidence contained in his affidavit of 8 February 2019. Of 34 Reasons, [29], [30]. 35 Ibid, [31]. 36 Ibid, [32]. 37 Ibid. 38 Ibid, [33]. -- 10 of 20 -- 11 relevance is, as observed in paragraph [38] of the Tribunal’s reasons, Sergeant Gunter’s explanation for the check on his own details. Sergeant Gunter says that he since remembered that he had passed a speed camera and believed that it had detected him speeding. Amongst other things, he thought it appropriate to see whether he was properly licensed, and so he checked his licence and vehicle records. Paragraphs [39] to [43], inclusive, of the Tribunal’s reasons identify submissions advanced in the hearing below: Mr Nicholson for the Assistant Commissioner submitted that reliance can be placed on the Assistant Commissioner’s findings, and inferences can be drawn from the precis of QPRIME that Sergeant Gunter actively pursued information that was irrelevant to the suspicions that he said he had, for example in looking at the indecent dealing record concerning RNV.39 Further to that, as reflected in the Tribunal’s reasons the Assistant Commissioner took the view that if Sergeant Gunter had these concerns, he should have instigated a course of action to have the matter addressed properly rather than merely doing the searches he did.40 On the other hand, Mr Schmidt for Sergeant Gunter submitted in the review hearing below that the information is consistent with Sergeant Gunter’s account of doing checks for the reasons that he has asserted.41 The learned Member accepted Sergeant Gunter’s explanation that he did the searches for the reasons advanced in his interview and affidavit.42 The learned Member was not satisfied that Sergeant Gunter gave, as stated, a ‘necessarily inconsistent account’ to McGuinness.43 Ground 2: Is there an error in the learned Member’s finding that the searches of information were routine checks? We do not accept the Assistant Commissioner’s submission that the learned Member’s finding, in accepting Sergeant Gunter’s explanation that the checks were ‘routine’ is an error such that the learned Member failed to, as submitted, consider the evidence available.44 In our view, on a fair reading of the Tribunal’s reasons as a whole, the learned Member’s finding that the checks conducted by Sergeant Gunter were routine was a finding made in the context of the submissions advanced in the hearing below about whether Sergeant Gunter actively pursued information or drilled down further into this information that was irrelevant to the suspicion that he said he had. As explained by the learned Member in paragraph [40] of the reasons, a submission was advanced in the Tribunal hearing below by Mr Nicholson for the Assistant Commissioner that, as stated, ‘an inference could be drawn that [Sergeant Gunter] opened up reports and further reports’. Mr Nicholson submitted in the hearing below that, ‘[Sergeant Gunter] was drilling down further into this information, even though it was totally irrelevant to any suspected fraud’.45 The learned Member finds in paragraph [44] that Sergeant Gunter did not ‘deliberately [pursue] irrelevant 39 Reasons, [39]. 40 Ibid, [42]. 41 Ibid, [43]. 42 Ibid, [46]. 43 Ibid, [47]. 44 See Outline of submissions for the appellant filed 24 January 2020, [68]. 45 Reasons, [40]. -- 11 of 20 -- 12 information about these people’ and goes on to find in paragraph [48] that the checks Sergeant Gunter undertook were essentially routine checks. Put simply, the Tribunal’s finding as to ‘routine checks’ in paragraph [48] of the reasons is, in our view, a contextual finding about Sergeant Gunter’s conduct. Properly understood, it was merely a finding that a police officer, when undertaking inquiries on QPRIME, might routinely explore links from one page of information to another even though such exploration might lead down dry gullys. It was open for the learned Member to make the finding, having considered the submissions advanced in the hearing below, about Sergeant Gunter’s conduct that he accepts in terms of accessing the information on QPRIME. Ground 2 is without merit. Ground 3: is there an error in the learned Member’s finding that he was not satisfied that Sergeant Gunter accessed information without an official purpose relating to the performance of his duties? The learned Member decided that he was not satisfied that Sergeant Gunter breached the Standard of Practice. Further to that, the learned Member was not satisfied in paragraph [49] of the Tribunal’s reasons that Sergeant Gunter accessed information without an official purpose related to the performance of his duties. Relevant to the question of whether Sergeant Gunter’s conduct was for an official purpose, is the Standard of Practice to be read in conjunction with the Code of Conduct that is, as submitted by the Assistant Commissioner, intended to support the ethics, principles, values and standards of conduct contained therein.46 We accept, as submitted by the Assistant Commissioner, that the purpose of discipline is reflected in the Standard of Practice. The purpose of discipline is to provide all members of the QPS with a set of guiding principles and standards to assist them in determining an acceptable standard of conduct.47 In Police Service Board v Morris48 Brennan J observed, and we accept, that the purpose of discipline is the maintenance of public confidence in the police force, of self-esteem of police officers and of efficiency. In Morris, Brennan J said: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.49 In the present matter, Sergeant Gunter accepts that he did the checks as detailed in Particular 3. On 10 November 2016, Sergeant Gunter accessed information in relation to RNV (the administrative manager at Firm C), GPY (a former partner of RNV), 46 Outline of submissions for the appellant filed 24 January 2020, [67]. 47 Ibid. 48 (1985) 156 CLR 397. See also Re Bowen [1996] 2 Qd R 8. 49 (1985) 156 CLR 397, 412. -- 12 of 20 -- 13 TBV (the director and construction manager of Firm C) and LDV (an administrator at Firm C). Further checks were conducted by Sergeant Gunter as detailed in Particular 5. On 15 February 2017, Sergeant Gunter accessed information in relation to DNC (a project manager for Firm C) and FRG (a labourer for Firm C). Sergeant Gunter’s explanation for doing the checks was relevant to the live issue in the review hearing below – that is, whether the accesses were without an official purpose relating to the performance of Sergeant Gunter’s duties as a police officer. Sergeant Gunter told investigators during the disciplinary interview that he first met with Firm C in April 2016 before signing the contract (signed on 21 July 2016) for the renovations on his home. Sergeant Gunter told investigators it was a big renovation and amongst other things he had not conducted any searches before the build commenced (in or about October 2016).50 Sergeant Gunter said he conducted the searches to see what sort of character these people had and in response to information he had received including, amongst other things, that TBV, LDV and RNV may be committing offences. In relation to DNC and FGR, Sergeant Gunter told investigators that he could smell alcohol on their breath and was later told by DNC’s wife that the two gentlemen had been visiting the hotel after work. We accept that, as submitted by the Assistant Commissioner, there was no proper basis for Sergeant Gunter to open or access historical information relating to RNV that included incidents of indecent treatment as a child.51 The Assistant Commissioner submits that, having regard to Sergeant Gunter’s reasons for accessing the information contained on QPRIME, identified by the learned Member, this could never be said to be a check of a routine nature. We accept this submission to the extent that the access was not related to the performance of Sergeant Gunter’s official police duties.52 As reflected in the Tribunal’s reasons, Sergeant Gunter said that his first contact with the QBCC was on 2 December 2016 to obtain advice about variations.53 Sergeant Gunter’s first complaint to the QBCC about the building work was on 18 January 2017.54 The building work was being performed on Sergeant Gunter’s house in accordance with a building contract signed by Sergeant Gunter with Firm C in his private capacity. The searches conducted by Sergeant Gunter on QPRIME related to persons associated with Firm C and other persons known to people associated with Firm C. Sergeant Gunter’s evidence that he had concerns about the people performing work on his home and that he made the checks for the reasons given in his interview and affidavit does not help him. Sergeant Gunter had at the time of his conduct over sixteen years’ experience as a police officer. Any honest and reasonable mistake that Sergeant Gunter says he had in terms of being entitled to do the searches either because he is always on duty as a police officer or on the basis that the Standard of Practice permits him to do so, does not help him. Nor does Sergeant Gunter’s 50 Reasons, [32] - [33]. 51 Outline of submissions for the appellant filed 24 January 2020, [72]. 52 Ibid, [72]. 53 Reasons, [38]. 54 Ibid. -- 13 of 20 -- 14 submission made in the hearing below that, as summarised by the learned Member, Sergeant Gunter said he, as stated, ‘viewed himself as a police officer 24/7’.55 Neither the provisions of the Police Service Administration Act 1990 (Qld)56 nor the common law concerning the duties of constables confers a power upon police officers to undertake investigation of suspected criminal offences at their own whim without regard to the hierarchy of police service command. Even if Sergeant Gunter’s explanation for his QPRIME inquiries regarding other persons is accepted at face value, such inquiries were not in the performance of his duties as a police officer. He was not allocated such investigations by his superior officers and did not seek the permission of his superior officers to conduct such investigations. Sergeant Gunter’s status as a police officer did not confer upon him an unlimited power to investigate suspected criminal offences as he saw fit. In the absence of authorisation of his investigations by his superiors, the QPRIME inquiries cannot reasonably be regarded as being with an official purpose in the performance of his duties as a police officer. In the circumstances of this matter, it was not reasonably open to the learned Member to find otherwise. The concerns or the reasons given by Sergeant Gunter for accessing the information on QPRIME arise from a contractual relationship between Sergeant Gunter and Firm C not connected with Sergeant Gunter’s police duties. The information accessed by Sergeant Gunter was not related to the performance of his official duty as a police officer and was therefore not permitted by the Standard of Practice. We accept the Assistant Commissioner’s submission that the Tribunal below misunderstood the performance and function of a police officer accessing confidential information on QPRIME. Although we do not accept, as submitted, that the explanations offered by Sergeant Gunter were irrelevant to his conduct, the learned Member’s summary of Sergeant Gunter’s evidence given to investigators and contained in his affidavit is unequivocal. Sergeant Gunter accessed information about persons associated with Firm C in circumstances where he had a contractual relationship with Firm C. This was clearly not related to the performance of Sergeant Gunter’s duties as a police officer.57 We accept the submissions advanced by Mr Gorry appearing for the Commission in the oral hearing before this Appeal Tribunal about the Standard of Practice. Mr Gorry submitted that, amongst other things, the Standard of Practice is to be read as a whole and there is an obligation on members to avoid conflicts of interests, to use information appropriately and according to the ethics principle. The Standard of Practice clearly provides that members are not to access, use or release information without an official purpose related to the performance of their duties. In the present matter, Sergeant Gunter accessed information about a number of persons employed by or associated with Firm C in circumstances where he had signed a contract with Firm C to renovate his home. The contract was signed by Sergeant Gunter in his personal capacity, which is not related to the performance of his official police duties. 55 Reasons, [49]. 56 Sergeant Gunter relied in particular upon sections 2.3 and 3.2(2) of the Act. 57 Outline of submissions for the appellant filed 24 January 2020, [79]. -- 14 of 20 -- 15 We accept the Assistant Commissioner’s submission that relevant to Particulars 3 and 5 and the accessing of information on 10 November 2016 and 15 February 2017, respectively, this was not authorised and/or not routine to the extent that it was not related to Sergeant Gunter’s official police duties in the circumstances.58 In relation to Particular 4 and the checks on 25 January 2017 on Sergeant Gunter’s own vehicle and driver’s licence details, Sergeant Gunter accepts that he looked up the information and says he wanted to check if he was properly licensed. The information clearly relates to Sergeant Gunter personally, and was not authorised and/or related to the performance of his duties as a police officer. In our view, the learned Member failed to appreciate the Standard of Practice and purpose of discipline that reflects the need for public confidence in the QPS. Accessing official information including confidential information on police systems such as QPRIME should be authorised and only done by members of the QPS in the performance of their duties. As observed by the Assistant Commissioner in his findings and reasons, there is no excuse for QPS members to betray the public trust by making any unauthorised, improper or unlawful access or use of any official or confidential information available to them in the performance of their duties. There is an error in the learned Member’s findings in paragraphs [48] and [49] of the Tribunal’s reasons that he is not satisfied, on the balance of probabilities, that Sergeant Gunter breached section 16 of the Standard of Practice, and that Sergeant Gunter accessed information without an official purpose relating to the performance of his duties. In the present matter, Sergeant Gunter conducted searches or looked up information about himself that was not related to his work as a police officer. He also looked up or accessed information about persons associated with Firm C who he had engaged to perform building work on his home. Sergeant Gunter has over sixteen years’ experience as a police officer. Sergeant Gunter has, in accessing the information, betrayed the trust placed in him as a police officer. It was not reasonably open to the learned Member to reach any other conclusion than that Sergeant Gunter accessed information without an official purpose relating to the performance of his duties. The requirement that QPS members only access information on the QPS system as provided in the Standard of Practice for an official purpose related to the performance of their duties is critical to maintaining public confidence in the police force and the safeguard of official and confidential information retained on the QPS systems such as QPRIME. Further to that, the public expects that members of the QPS only access information for an official purpose related to their duties. The appeal on Ground 3 is allowed. Ground 1: The Tribunal erred in finding - (a) that only limited reliance could be placed on McGuinness’ recollection of what was said to him by Sergeant Gunter regarding the self-disclosure; and (b) that Sergeant Gunter’s evidence was not inconsistent with the account he gave to McGuinness. In addressing the grounds of appeal, the Assistant Commissioner does not seek to challenge the learned Member’s summary of Sergeant Gunter’s evidence about why 58 Outline of submissions for the appellant filed 24 January 2020, [69], [73] and [74]. -- 15 of 20 -- 16 he accessed the information nor the summary of McGuinness’ evidence about his conversation with Sergeant Gunter and the reasons why he (Sergeant Gunter) accessed the information. Sergeant Gunter’s evidence is summarised in paragraphs [25], [26] and [28] of the Tribunal’s reasons. A summary of relevant submissions advanced in the hearing below about Sergeant Gunter’s evidence appears in paragraphs [27] and [29] of the Tribunal’s reasons. Relevantly, in paragraph [27] the learned Member says that the respondent (the Assistant Commissioner) also points out that there is evidence from TBV to indicate that the self-report by Sergeant Gunter (to McGuinness) was prompted by Sergeant Gunter becoming aware that allegations may be made against him that he had accessed information about the builders. The learned Member says that it is common ground that this has been the prompt for the self-report. Further, in paragraph [29] of the Tribunal’s reasons the learned Member refers to the submissions made by Mr Schmidt in the hearing below on behalf of Sergeant Gunter about McGuinness’ evidence. Mr Schmidt submitted in the hearing below that McGuinness himself indicates that he did not make detailed notes of the conversation with Sergeant Gunter, seeing himself, really, just as a conduit of information. Further to that, Mr Schmidt submitted that McGuinness was relying, in September 2017, on his recollection of that conversation with Sergeant Gunter from May 2017, and Mr Schmidt submitted that the concern about motorcycle gangs could have just been McGuinness’, as stated, ‘take on things’. The learned Member accepts in paragraph [30] of the Tribunal’s reasons that, because of the absence of any detailed account from McGuinness at the time of the 24 May 2017 conversation, somewhat limited reliance can be placed on McGuinness’ recollection of what was said. Further, at paragraph [47] of the Tribunal’s reasons the learned Member was not satisfied that Sergeant Gunter gave a necessarily inconsistent account to McGuinness; that is, an account inconsistent with the account that he has advanced before the Tribunal. The learned Member referred again to the absence of any detailed records kept by McGuinness and the passage of time before McGuinness was asked to recount his recollection of the conversation. Mr Nicholson for the Assistant Commissioner in the oral hearing before this Appeal Tribunal submitted that McGuinness made a notation referred to as a ‘QP466’ of Sergeant Gunter’s self-disclosure and submitted that there was a recording at the time made by McGuinness contrary to the learned Member’s findings in paragraphs [30] and [47] of the Tribunal’s reasons. In the review hearing below, the learned Member was required to make findings based on the evidence according to the civil standard of proof. In Briginshaw59 Dixon J said 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’.60 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 59 Briginshaw v Briginshaw (1938) 60 CLR 336. 60 Ibid, 361 - 362. -- 16 of 20 -- 17 has led to attempts to define exactly the certainty required by the law for various purposes… it is enough that that 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….61 The learned Member has given reasons as to why the evidence of McGuinness should be given limited reliance. In paragraph [29] of the Tribunal’s reasons the learned Member says that McGuinness did not make detailed notes of the conversation with Sergeant Gunter, that McGuinness saw himself as a conduit of information and was relying on his recollection of the conversation with Sergeant Gunter from May 2017. The learned Member has properly considered the evidence before him relevant to Sergeant Gunter’s conduct including the evidence of McGuinness. It was open for the learned Member to make relevant findings about the evidence including McGuinness’ evidence. Ground 1 is without merit. Ground 4: The Tribunal erred in its understanding of the QPS Standard of Practice 2012/13. The Tribunal had a fundamental misunderstanding of the nature of the standard of practice when it decided that the disciplinary charge was not proved on the basis that- (a) The standard of practice does not prohibit a police officer from checking their own records; and (b) The standard of practice does not prohibit a police officer checking on a person the police officer reasonably suspects of criminal activities merely because the police officer has a personal or commercial relationship with the person. The Assistant Commissioner raises no additional arguments on appeal that are not already addressed by the Appeal Tribunal in respect of Ground 3. As discussed above in considering Ground 3, there is an error in paragraph [48] of the Tribunal’s reasons and the relevant finding that Sergeant Gunter breached section 16 of the Standard of Practice. We accept the Assistant Commissioner’s submission that the Tribunal below led itself into error when it stated at paragraph [51] of its reasons that the Standard of Practice does not say a police officer cannot check their own records or check a suspected criminal activity because the officer has some ‘personal commercial’ relationship.62 The learned Member failed to appreciate the Standard of Practice and the purpose of discipline that reflects the need for public confidence in the QPS. We accept the Assistant Commissioner’s submission that the Standard of Practice is to be read in conjunction with the Code of Conduct and it is intended to support the ethics, principles, values and standards of conduct contained therein.63 The Standard of Practice is to be read as a whole and members are required to avoid conflicts of 61 Briginshaw v Briginshaw (1938) 60 CLR 336. 62 Outline of submissions for the appellant filed 24 January 2020, p 17. 63 Ibid. -- 17 of 20 -- 18 interests, to use information appropriately and according to the ethics principle. The Standard of Practice provides that access of official and confidential information be done by members only for an official purpose related to the performance of their duties. The appeal on ground 4 is allowed. Ground 5: The Tribunal erred when it decided that Sergeant Gunter’s failure to follow up on suspicions was not what the disciplinary charge related to. This ground of appeal concerns paragraph [51] of the Tribunal’s reasons and the learned Member’s finding that Sergeant Gunter’s failure to follow up his suspicions is not what the disciplinary charge or disciplinary matter relates to. We accept Sergeant Gunter’s submission in responding to this ground of appeal that nothing turns on the Tribunal’s finding.64 Sergeant Gunter accepts that he accessed the information as particularised in the one matter of misconduct. Sergeant Gunter’s evidence about the access is, that amongst other things, he did not find a smoking gun and moved on.65 We see no error in the Tribunal’s finding in paragraph [51] of its reasons that it is the purpose of the access that is relevant rather than any later failure. Further to that, there is no error in the Tribunal’s finding that any failure by Sergeant Gunter to follow up his suspicions is not what the disciplinary charge or matter relate to.66 Sergeant Gunter accepts that he accessed the information. The live issue before the Tribunal below was whether the access was for an official purpose. Ground 5 is without merit. Ground 6: The Tribunal erred by taking into account an irrelevant matter when it considered and decided it was not clear on the information presented what would have been visible to Sergeant Gunter when he opened the records he accessed on QPRIME and that he did not deliberately pursue irrelevant information about persons subject to the search. Critical to Ground 6 is the learned Member’s finding at paragraph [44] of the Tribunal’s reasons. The learned Member was not prepared to find that Sergeant Gunter deliberately pursued irrelevant information about, as stated, ‘these people’. The learned Member refers to there being no statement, for example, explaining in detail what would have been apparent to someone in Sergeant Gunter’s position. The Assistant Commissioner submits that the complaint by Sergeant Gunter in the review hearing below in relation to information as seen by him was not raised in written submissions and was raised for the first time in oral submissions in the hearing below.67 64 Respondent’s submissions on appeal filed 13 October 2020, [94]. 65 Ibid, [27]. 66 Outline of submissions for the appellant filed 24 January 2020, [94]. 67 Outline of submissions for the appellant filed 24 January 2020, [101]. Transcript, Exhibit 1, p1-18, 11 27-32. -- 18 of 20 -- 19 The Assistant Commissioner now seeks leave to rely on fresh evidence that was not before the review hearing below to show that Sergeant Gunter’s submission was incorrect and has led the Tribunal into error.68 The question of leave to allow fresh evidence involves the exercise of a broad discretion:69 …New evidence will ordinarily only be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and, the evidence is apparently credible, although not necessarily incontrovertible. The fresh evidence sought to be adduced is contained in the affidavit of Wayne Griffith and includes information about what would have been visible to Sergeant Gunter when accessing information on QPRIME. Clearly the evidence was available at the time of the review hearing. We accept Sergeant Gunter’s submission that the access and nature of such access was the live issue in the review proceeding below.70 In our view, it matters not whether Sergeant Gunter deliberately pursued information because Sergeant Gunter accepts the conduct detailed in Particulars 3, 4 and 5 of the one matter of misconduct and accepts the sanction imposed if the matter is found to be substantiated. The live issue in the review proceeding was whether the access was for an official purpose related to the performance of Sergeant Gunter’s duties as a member of the QPS. The Assistant Commissioner has failed to convince us that leave to rely upon fresh evidence in the appeal proceeding should be given. The Assistant Commissioner has failed to identify an error in the learned Member’s finding that he is not prepared to find that Sergeant Gunter deliberately pursued irrelevant information. Leave to rely upon fresh evidence is refused. Ground 6 is without merit. Conclusion Grounds 3 and 4 of the appeal are allowed. It is appropriate in this matter for the Appeal Tribunal to rehear the matter under s 147(3) of the QCAT Act and, consistent with established authority, to give judgment ‘as ought to be given if the case came at that time before the court of first instance’.71 This requires us in rehearing the matter, as was required by the Tribunal below, to arrive at the correct and preferable decision. We adopt the learned Member’s unchallenged summary of the evidence, in particular Sergeant Gunter’s explanation for his conduct and the reasons advanced by him for conducting the searches. We determine that the Standard of Practice provides a set of guiding principles and standards to assist members in determining an acceptable standard of conduct. The Standard of Practice is to be read as a whole. The purpose of discipline reflected in 68 Outline of submissions for the appellant filed 24 January 2020, [104]. Application for miscellaneous matters filed on 8 August 2020. 69 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93, 3 [7]; see also Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 70 Respondent’s submissions on appeal filed 13 October 2020, [36]. 71 See Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151, [8] citing Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, 107 (Dixon J), citing Quilter v Mapleson (1882) 9 QBD 672. -- 19 of 20 -- 20 the Standard of Practice, is the maintenance of public confidence in the police service, of self-esteem of police officers and efficiency. Further to that, the requirement in the Standard of Practice that members of the Service access or release information for an official purpose related to the performance of their duties is critical to ensure the safeguarding of official and confidential information on the QPS systems such as QPRIME and to maintain public confidence. In the present matter, Sergeant Gunter accessed information on 10 November 2016, 25 January 2017 and 15 February 2017, respectively, that was not authorised and/or not routine to the extent that it was not related to his official police duties in the circumstances. There will be a finding that Sergeant Gunter accessed information on QPRIME as particularised in the one matter of misconduct without an official purpose relating to the performance of his duties. The Tribunal’s decision of 15 October 2019 that Matter 1 set out in the disciplinary proceedings notice dated 23 November 2018 is not substantiated is set aside and the following decision is substituted: The decision of Assistant Commissioner Brian JA Wilkins made on 18 March 2019 that a finding of misconduct for Matter 1 was substantiated, is confirmed. We order accordingly. -- 20 of 20 --