Deputy Commissioner Peter Martin v King [2019] QCATA 77

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Deputy Commissioner Peter Martin v King [2019] QCATA 77 PARTIES: DEPUTY COMMISSIONER PETER MARTIN (appellant) v DAVID KING (respondent) APPLICATION NO/S: APL296-17 ORIGINATING APPLICATION NO/S: OCR195-16 MATTER TYPE: Appeals DELIVERED ON: 27 May 2019 HEARING DATE: 20 April 2018 HEARD AT: Brisbane DECISION OF: Senior Member Howard, Presiding Member McLennan ORDERS: Leave to appeal is refused. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where alleged misconduct that officer stole money – where original Tribunal considered charge was not substantiated APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – whether leave to appeal should be granted– where Tribunal gave consideration to inconsistency and gaps in transcript evidence – whether error in Tribunal’s approach Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 142(3)(b) Allesch v Maunz (2000) 203 CLR 172 Briginshaw v Briginshaw (1938) 60 CLR 336 Cui v Kim & Ors [2014] QCATA 33 House v The King (1936) 55 CLR 499 King v Deputy Commissioner Peter Martin [2017] QCAT 291 -- 1 of 10 -- 2 Pickering v McArthur [2005] QCA 294 APPEARANCES & REPRESENTATION: Applicant: Mr S McLeod, instructed by Queensland Police Service Legal Unit Respondent: Mr M Black, instructed by Gilshenan and Luton Legal Practice REASONS FOR DECISION [1] On 8 December 2014, Constable Dunkley (‘Dunkley’) and Constable Warren (‘Warren’) requested assistance with an arrest in suburban Townsville. They had searched and questioned a man who was seated inside a utility motor vehicle with a flat tray. There was a tool box bolted to the utility’s flat tray. During the search, the man handed $905 in cash to Warren who counted the money. Warren handed the cash to Dunkley who placed it on the flat tray up against the tool box on the driver’s side of the utility. [2] Acting Sergeant King (‘Officer King’) responded to their call for assistance and arrived at the scene shortly followed by a second back up crew: Constables Polman (‘Polman’) and Chew (‘Chew’). Shortly after these arrivals, the man was arrested and removed from the scene. At the watch house, the arrested man asked about the money and it was discovered to be missing. [3] An internal Queensland Police Service (‘QPS’) investigation ensued. Each of the officers was interviewed. Video footage captured by a body camera worn by Dunkley at the scene was viewed. [4] The Deputy Commissioner subsequently brought a disciplinary charge of misconduct against Officer King. It was alleged that Officer King had dishonestly taken the $905. The particulars of the charge included allegations as follows: • Whilst Constables Warren and Dunkley were placing [the arrested man] into the back of the police van, you walked around to the driver’s side of the [arrested man’s] vehicle, in the immediate vicinity of the $905 cash; • You took possession of this money from the rear of the vehicle; • You failed to lodge this money as an exhibit; and • When questioned, you denied taking possession of the money. [5] The misconduct was later found by the Deputy Commissioner to be substantiated. By way of sanction, he dismissed Officer King from the QPS on 12 October 2016.1 1 King v Deputy Commissioner Peter Martin [2017] QCAT 291, 2 [1]–[7]. -- 2 of 10 -- 3 [6] Officer King applied to the Tribunal for review of the Deputy Commissioner’s decision. On the review, Officer King contended that the Deputy Commissioner was unable to discharge the onus of proving the allegation and that there was plausible alternative explanation for the missing money. The Deputy Commissioner contended there was clear evidence to substantiate the charge of misconduct and dismissal.2 The Tribunal found the allegation of misconduct made against Officer King was not substantiated. [7] The Deputy Commissioner filed an application for leave to appeal the Tribunal’s decision.3 Ultimately, on appeal he seeks orders reinstating his decision. [8] For the reasons later explained, the application for leave to appeal is refused. The grounds of appeal [9] The Deputy Commissioner relies upon 5 grounds of appeal alleging error of the Tribunal, as follows: Ground 1: In failing to give proper weight to the evidence of officers Polman, Chew and Dunkley in finding that the money went missing during the search of the utility and tool box after the arrested man was placed in the police van; Ground 2: In failing to draw the proper inferences of fact from the evidence of Dunkley, Polman and Chew in finding that the money went missing during the search of the utility and tool box after the arrested man was placed in the police van; Ground 3: In finding that the money was taken during the search of the utility by another officer with the honest intention of dealing with the money for an official purpose and the money was misplaced after leaving the scene; Ground 4: In finding that the evidence fell short of establishing when the money went missing; and Ground 5: In finding that the evidence was not probative to discharge the Briginshaw,4 standard of proof that the finding of misconduct could be substantiated. [10] The Deputy Commissioner concedes that there is no error of law in the learned Member’s reasons for decision, and nor was the Member in error regarding the evidence before the Tribunal. Indeed, he alleges no error in the first sixty paragraphs of the decision. [11] Rather, the challenge is that, ‘The Tribunal’s approach in considering aspects of the evidence miscarried and took into account irrelevant matters’.5 2 Ibid, 3 [8]–[9]. 3 20 September 2017. 4 Briginshaw v Briginshaw (1938) 60 CLR 336. 5 Appellant’s Outline of Submissions filed 27 November 2017, 6 [24]. -- 3 of 10 -- 4 The application for leave to appeal [12] Except on a question of law alone, leave to appeal is required.6 Leave to appeal will generally only be granted where there is a reasonable argument of error to be corrected and which requires correction to avoid substantial injustice to a party.7 [13] The appeal process is for correcting legal, factual or discretionary error by the original tribunal.8 A decision is not erroneous, simply because one conclusion is preferred over another possible view.9 An appeal tribunal will not usually interfere with the tribunal’s exercise of its discretion unless, for example, it is demonstrated that the tribunal acted on a wrong principle, failed to take into account material or relevant considerations, or was influenced by irrelevant matters.10 The Tribunal’s decision [14] Having explained the Tribunal’s role on the review, the learned Member relevantly set out the allegation of misconduct made against Officer King.11 [15] The Tribunal considered the video and other evidence. It accepted that Dunkley placed the $905 on the utility tray against the toolbox.12 It accepted that Dunkley and Warren were the only officers who knew about the money.13 It accepted that none of the other officers who attended were briefed about its existence.14 It discussed the evidence about what happened after Officer King arrived at the scene, considering which officers were where and who left when, noting the inconsistencies in the officers’ evidence about the actions they each took after the arrested man had been placed inside the police van and during the search of the utility. [16] The learned Member then considered what each of the relevant officers said about the missing money. Dunkley said that he had forgotten about the money, as did Warren, who said they were focused on the arrested man.15 Dunkley said that when the arrested man raised the money, he and Warren both searched their pockets, looked in their police vehicle, and he (Dunkley) then telephoned Officer King to report it.16 [17] The Tribunal then considered the Deputy Commissioner’s submissions about when the money went missing. That is, the Deputy Commissioner contended that it must have been taken during the thirty-four seconds from when it was last seen on the video, until ‘when it was gone’,17 contending that the Tribunal could infer that Polman would have seen the money had it been there when he searched the utility. The Tribunal was not satisfied that the money was missing prior to the search of the utility.18 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142. See especially s 142(3)(b). 7 See, eg, Pickering v McArthur [2005] QCA 294, [3]. 8 Allesch v Maunz (2000) 203 CLR 172, 180 [23]. 9 Cui v Kim & Ors [2014] QCATA 33, 5 [9]. 10 House v The King (1936) 55 CLR 499, 504. 11 King v Deputy Commissioner Peter Martin [2017] QCAT 291, 5 [20]. 12 Ibid, 7 [24]. 13 Ibid, 8 [30]. 14 Ibid, 7–8 [25]–[30]. 15 Ibid, 11 [41]; 12 [46]. 16 Ibid, 12 [46]. 17 Ibid, 16 [60]. 18 Ibid, [62]. -- 4 of 10 -- 5 [18] In reaching this conclusion, the learned Member discussed the equivocal evidence of Polman about whether he saw the money when he opened the toolbox ‘from the passenger side,’ observing that his evidence had not been properly tested by the QPS.19 The learned Member had set out Polman’s evidence to the effect that he hoped he would have noticed any money during the search, but conceded that it was possible it was there and he didn’t see it.20 She also referred to Chew’s unequivocal evidence that he did not see any money, and that the toolbox could only be opened from the driver’s side,21 and that the evidence of the officers’ was inconsistent as to which officer or officers searched the passenger and driver’s side of the cab of the utility and the toolbox, and from which side of the utility.22 In doing so, the learned Member also identified that, when inconsistency occurred, the QPS investigating officers had not clarified when each of the events were said by the respective officers to have occurred.23 [19] The Tribunal found that a number of matters were not clarified in the investigation as follows:24 [71] Each of the officers attending the scene were not questioned by the QPS during their respective interviews about: (a) Whether or not the inside of the utility and flat tray were searched before Mr King left the scene to speak to the neighbour; (b) Whether or not the inside of the utility and flat tray were searched before Mr Dunkley and Mr Warren left to transport the arrested man to the hospital and then to the watch house; (c) Whether or not the tool box could only be opened from the driver’s side because that is where the ‘catch is’; (d) Where certain officers were placed during the search of the inside of the utility and the tool box and when the officers searched the inside of the utility and the tool box.25 [20] Having concluded that the evidence fell short of establishing on the Briginshaw standard when the money went missing,26 the learned Member observed that it was open to her to find that it went missing during the search. [21] Turning then to consider whether Officer King took the money, she considered that the video evidence fleetingly placed Officer King near the driver’s side of the utility (during the period when the arrested man was placed in a police vehicle), but not how close he was standing to where the money was last seen. She found that he could not have seen the money from where he was standing, and without knowing about the money, seconds beforehand. 27 The learned Member accepted as plausible, Officer King’s explanation about what he was doing during that brief period on the driver’s 19 Ibid, 17 [63]. 20 Ibid, 14 [53]–[54]; 17 [63]. 21 Ibid, 17 [64]. 22 Ibid, 17–18 [65]–[70]. 23 Ibid, [66]–[70] 24 Ibid, [71]. 25 Ibid. 26 Ibid, 16 [62]; 19 [73]. 27 Ibid, 19 [76]. -- 5 of 10 -- 6 side, that is, looking underneath the vehicle ‘because it was stuck’ partially raised on an obstruction on the side of the road, as the other officers came back to the utility.28 On that basis, she was not satisfied that Mr King was the only officer who could account for the money.29 She considered that the money could have gone missing during the search of the utility, including being taken by an officer with the honest intention of dealing with it for official purposes but misplaced, or that it went missing at some later time.30 [22] As it was open to the Tribunal to find that the evidence gave rise to several possible explanations, the Tribunal concluded that it could not be satisfied to the requisite standard that the allegation was substantiated.31 The application for leave to appeal and appeal [23] Although five grounds of appeal are raised, the focus of the Deputy Commissioner’s submissions in the appeal proceeding is the thirty four seconds of the available video evidence, and what might be extrapolated or inferred from that time period. In effect, he submits that the thirty four seconds of video evidence, from when the money was last seen on the video, and when it was ‘gone’ based on the police officers statements is crucial, because Officer King was observable standing beside the utility on the driver’s side.32 He submits that the Tribunal’s analysis of the video footage was tainted by its finding that the money went missing at some other time than during that thirty four seconds, and that it thereby cast impermissible doubt upon and failed to ‘properly scrutinize the video footage and the evidence.’33 [24] On the Deputy Commissioner’s behalf, Mr McLeod submits that there was a disconnect in the Tribunal’s analysis of the evidence where it reasoned: (a) Officer King was not the only officer who could account for the money in the period between when it was last seen on the video and when it was gone; and (b) It was plausible and open that the money was taken during the search of the vehicle. 34 [25] Mr McLeod submits that the Tribunal focused its attention on the inconsistencies in the evidence about the tool box search and the internal search of the utility, and in doing so, fell into error in focusing on the evidentiary inconsistencies and lack of testing of the inconsistencies. He argues that this led the Tribunal to reject the thirty four second period as critical to determining that Officer King took the money. Mr McLeod also contends that it is not apparent from the Tribunal’s reasoning how the fact that certain matters were not canvassed in the various QPS interviews, are said to have affected the evidence of the police officers.35 28 Ibid, 20–21 [78]–[85]. 29 Ibid, 21 [84]. 30 Ibid, [85]. 31 Ibid, 22 [88]. 32 Appellant’s Outline of Submissions filed 27 November 2017, 3 [15] citing ibid, 16 [60]. 33 Ibid, 7 [29]. 34 Appellant’s Outline of Submissions filed 27 November 2017, 3–4 [17] citing King v Deputy Commissioner Peter Martin [2017] QCAT 291, 21 [84]–[85]. 35 Appellant’s Outline of Submissions filed 27 November 2017, 7 [26]. -- 6 of 10 -- 7 [26] The Deputy Commissioner submits that the learned Member had failed to give proper weight and draw the proper inferences from the evidence of Dunkley, Polman, and Chew in reaching its conclusions, by distracting itself and focussing on ‘subtle’ inconsistencies in the evidence. It is enough, he submits that Officer King was the last person in the video, close to where the money was last seen. He submits that the Tribunal need not to have gone further. Consideration of the issues [27] The Deputy Commissioner says that the Tribunal should have drawn the inference from the relevant thirty four seconds of video evidence that Officer King took the money. [28] The video evidence shows the money placed on the utility tray.36 Dunkley stated, and the Tribunal accepted, that he placed the money on the flat tray up against the tool box which was bolted to the utility tray.37 This occurred before King arrived.38 This is corroborated by the video evidence.39 Dunkley and Warren corroborated King’s evidence that he did not know of the money when he arrived at the scene.40 [29] King maintained that he did not know of the money until after he had returned to the police station.41 Other than the arresting officers, Dunkley and Warren, who both handled the money, the subsequent attending officers, Polman and Chew, did not know of the money’s existence, and Dunkley did not remember briefing any other officer as to its existence. The Tribunal found that Polman was equivocal as to whether the money was there when he searched the utility, whereas Chew was certain it was not when he searched. Further, the Tribunal held that it was uncertain, on the available evidence, when Chew undertook his search; given the evidence that he first conducted a ‘QV’. The Deputy Commissioner concedes that the Tribunal was not mistaken as to the evidence. Those findings were open to the Tribunal. The Deputy Commissioner does not argue that they were not. He submits in effect that the Tribunal should not have given the inconsistencies and gaps in the evidence, and/or their relevance, the weight given to them by the learned Member in drawing her conclusions and, it seems, further, that she ought to have given the video evidence greater weight. [30] We do not accept that submission. The Tribunal carefully, and appropriately given that its review was by way of fresh hearing on the merits, considered all of the available evidence before it reached its conclusions. It would have been an error for the Tribunal to focus its attention upon the video evidence to the exclusion of the other available evidence in the manner that the Deputy Commissioner argues it should have done. [31] The Tribunal had no opportunity to have the evidence tested before it, bearing in mind the limited nature of the hearing to be conducted, whereby no witnesses are seen or heard in the review and the Tribunal considered the material before the original decision-maker.42 The Tribunal could consider only the evidence it had, as it was 36 King v Deputy Commissioner Peter Martin [2017] QCAT 291, 6 [22]. 37 Ibid, [23]. 38 Ibid, [22]. 39 Ibid, 7 [24]. 40 Ibid, [26]. 41 Ibid, [25]. 42 Ibid, 5 [17]–[18]. -- 7 of 10 -- 8 presented in order to find the facts and draw inferences. As the Tribunal’s analysis reveals, the consequence of the inconsistencies it identified was that the inference contended for by the Deputy Commissioner was not the only inference open on the evidence. [32] The inconsistencies and gaps emerged from the Tribunal’s consideration and analysis of all of the evidence. They are relevant to the facts found and to the question of whether the inference contended for by the Deputy Commissioner should be drawn. They raise legitimate questions as to the reliability of what seems to be a plausible inference arising from the video. Officer King might have taken the money: he had opportunity, stance on the relevant side of the utility and, briefly, isolation from other officers. That evidence emerges from the video evidence. However, that he might have taken it is the highest it can be put, having regard to the totality of the evidence, and in particular, the transcript evidence and the gaps in evidence and inconsistent statements from the various officers. [33] It follows that we do not accept that the inconsistencies and gaps identified by the Tribunal were an irrelevant consideration. Grounds of Appeal 1 and 2: Did the Tribunal err in failing to give proper weight to or draw the proper inferences from the evidence of Dunkley, Polman and Chew in finding the money went missing during the search of the utility and tool box Ground 3: Did the Tribunal err in finding that the money went missing during the search of the utility by another officer with the honest intention of dealing with it for an official purpose and that it was misplaced. [34] As is apparent from our analysis of the Tribunal’s reasons for decision, it did not make the findings alleged in grounds of appeal 1, 2, and 3. That is, the Tribunal did not find that the money went missing during the search of the utility, nor that the money went missing during the search of the utility by another officer with the honest intention of dealing with it for an official purpose and that it was misplaced. Indeed, ultimately the Deputy Commissioner conceded as much as the hearing. [35] The Tribunal’s discussion of the evidence reveals only that the Tribunal considered that those findings were also open on the available evidence, in explaining why it did not draw the inference contended for by the Deputy Commissioner, that Officer King took the money from the rear of the vehicle while Warren and Dunkley placed the arrested man in the vehicle, as particularised in the allegation of misconduct. [36] Nor, as discussed earlier, did the Tribunal fail to give appropriate weight to the evidence of Dunkley, Polman, and Chew. We are satisfied that the learned Member properly considered all of the evidence before the Tribunal in reaching her conclusions as to the facts found and whether the inference was drawn. [37] The inference contended for by the Deputy Commissioner, was not, as the Tribunal said, the only inference that was open. Although another Member may have been prepared to draw the inference for which the Deputy Commissioner contends, there is no error in the Tribunal’s approach. [38] Finally, the Tribunal was not in error in concluding that the evidence left it open to find that another officer (other than Officer King) took the money with the honest -- 8 of 10 -- 9 intention of dealing with it appropriately but misplaced it. Warren and Dunkley’s evidence confirms that they both forgot about the money. When they learned the money was missing, they searched their pockets and their vehicle. They were uncertain about whether one of them had dealt with it in some way. Ground 4: Did the Tribunal err in finding that the evidence fell short of establishing when the money went missing [39] The Deputy Commissioner submits that the evidence is consistent, in that no-one saw the money after the ‘thirty four second window of opportunity’, and that therefore, it was gone during that period. As earlier discussed, Polman’s evidence left open a potential finding that the money may have been on the utility tray when the search commenced but that he did not see it. It was, as the Tribunal found, equivocal. [40] Polman was not sure where Officer King was standing.When questioned about the money, and the possibility that it was there and he had not seen it, he said: ‘I hope I would’ve noticed the money there but yeh maybe. I don’t know’.43 Further, Chew, although certain the money was not there when he opened the toolbox from the driver’s side, was, according to Polman, initially engaged in a ‘QV’ rather than the search of the vehicle .44 Accordingly, the point in time when his evidence confirms the money was gone is uncertain, but appears to be later than the time at which the search began. [41] Each discrepancy may have been minor in itself, ‘subtle’ as Mr McLeod suggests, but considered together (in the context of the inference that must necessarily be drawn if the charge was to be substantiated, and having regard to the applicable onus and standard of proof) we accept that it was open to the Tribunal not to be satisfied that the alleged misconduct was substantiated on the evidence. A thorough review of the video evidence and the transcript evidence, her dissection of the inconsistencies and gaps that remained untested by subsequent interview of the officers, taken together, led the learned Member to conclude that the inference that Mr King took the money was unreliable. [42] The Appeal Tribunal does not accept that the learned Member focused unnecessarily on the search of the tool box and the interior of the cabin. She examined time,45 placement,46 as well as absence or presence of the officers,47 in the search of the tool box and interior of the cabin.48 The discrepancies identified by the Tribunal raised legitimate concern about relying on the video evidence as explaining when the money went missing. Ground 5: Did the Tribunal err in its application of the standard of proof? [43] The Deputy Commissioner does not suggest that the Tribunal did not correctly identify the requisite standard of proof. The learned Member identified the Briginshaw civil standard as applicable, noting that reasonable satisfaction as to proof should not be reached by, ‘inexact proofs, indefinite testimony, or indirect 43 Respondent’s Outline of Submissions filed 18 January 2018, 5 [22] (a). 44 King v Deputy Commissioner Peter Martin [2017] QCAT 291, 14 [52]. 45 Ibid, 18 [71] (a). 46 Ibid, (d). 47 Ibid, (b). 48 Ibid, [71]. -- 9 of 10 -- 10 inferences.’49 Then, having referred to the Deputy Commissioner’s onus of proof in the proceedings,50 the Tribunal stated that care should be taken making findings and drawing inferences based on untested evidence having regard to the serious consequences that may flow from a substantiated finding of misconduct.51 [44] We do not accept that the Tribunal’s approach in considering the inconsistencies and gaps in the evidence was in error: those discrepancies contributed to the Tribunal not reaching the requisite level of satisfaction. [45] Given the seriousness of the consequences for Officer King, we are satisfied that the Tribunal was appropriately cognisant that it should not be reasonably satisfied on the basis of indefinite testimony and inexact proofs. There is no doubt that the potential consequences were serious: the Deputy Commissioner had earlier decided that Officer King should be dismissed from the QPS. The Tribunal considered, in light of Polman’s equivocal evidence and the lack of clarity about when each officer searched the vehicle and the toolbox and from which side, that the evidence did not establish to the requisite standard, that the money was missing before the vehicle searches were performed.52 Conclusion and orders [46] For the reasons explained, it was open to the learned Member to find that the charge was not substantiated against Officer King. There is no error as alleged. There is no basis upon which we would grant leave to appeal. [47] The application for leave to appeal is refused. 49 Ibid, 19 [73]. 50 Ibid, 4 [16]. 51 King v Deputy Commissioner Peter Martin [2017] QCAT 291, 4-5 [14-15, 19]. 52 Ibid. -- 10 of 10 --