Crime and Corruption Commission v Lee [2019] QCATA 38

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Lee [2019] QCATA 38 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant/appellant) v ANTHONY WILLIAM LEE (respondent) APPLICATION NO/S: APL021-18 ORIGINATING APPLICATION NO/S: OCR096-16 MATTER TYPE: Appeals DELIVERED ON: 10 May 2019 HEARING DATE: 23 November 2018 HEARD AT: Brisbane DECISION OF: Justice Daubney, President Member Browne ORDERS: 1. Leave to appeal is granted. 2. Appeal allowed. 3. Leave to cross-appeal is refused. 4. The Tribunal’s decision of 22 December 2017 that the application for disciplinary orders is dismissed is set aside and the following decision is substituted: Anthony William Lee engaged in conduct that is corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) (“CC Act”). THE APPEAL TRIBUNAL DIRECTS THAT: 5. The Crime and Corruption Commission must file in the Tribunal three (3) copies and give to Anthony William Lee one (1) copy of any written submissions in relation to the appropriateness of any order to be made following the finding of corrupt conduct against Anthony William Lee pursuant to s 219I of the CC Act, by: 4:00pm on 24 May 2019. -- 1 of 19 -- 2 6. Anthony William Lee must file in the Tribunal three (3) copies and give to the Crime and Corruption Commission one (1) copy of any written submissions in response, by: 4:00pm on 7 June 2019. 7. The Crime and Corruption Commission must file in the Tribunal three (3) copies and give to Anthony William Lee one (1) copy of any written submissions in reply, by 4:00pm on 21 June 2019. 8. Unless otherwise ordered, the Appeal Tribunal will determine the final orders to be made against Anthony William Lee pursuant to s 219I of the CC Act, by written submissions of the parties, on the papers and without a further oral hearing on a date not before 24 June 2019. CATCHWORDS: APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where the Crime and Corruption Commission filed an application for disciplinary orders in the Tribunal’s original jurisdiction seeking a finding of corrupt conduct – where the respondent police officer did not give evidence – where the Tribunal applied the principles in Jones v Dunkel (1959) 101 CLR 298 – where the Tribunal made findings of fact about the conduct – where the Tribunal made findings about the respondent’s motive for his conduct – where the Tribunal was not satisfied all of the elements of s 15 of the Crime and Corruption Act 2001 (Qld) have been met – where the Tribunal dismissed the application for disciplinary orders – whether error in the Tribunal’s assessment of the evidence and findings made – whether error in the Tribunal’s findings and application of the principles in Jones v Dunkel APPEAL AND NEW TRIAL – NEW TRIAL – where error in the Tribunal’s decision – where Tribunal made findings contrary to the principle in Jones v Dunkel (1959) 101 CLR 298 – where error of mixed fact and law – where appeal allowed Crime and Corruption Act 2001 (Qld), s 15, s 50, s 219I Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20, s 23, s 142(3)(b), s 147 Adler v ASIC (2003) 179 FLR 1; [2003] NSWCA 131 ASIC v Adler (2002) 168 FLR 253; [2002] NSWSC 171 ASIC v Flugge and Geary (2016) 342 ALR 1; [2016] VSC 779 -- 2 of 19 -- 3 ASIC v Hellicar (2012) 247 CLR 345 Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Briginshaw v Briginshaw (1938) 60 CLR 336 Crime and Corruption Commission v Lee [2017] QCAT 483 Dilose v Latec Finance Pty Ltd (No.1) (1966) 84 WN (NSW) (Pt 1) 557 Fabre v Arenales (1992) 27 NSWLR 437 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Jones v Dunkel (1959) 101 CLR 298 The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Pickering v McArthur [2005] QCA 294 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 APPEARANCES & REPRESENTATION: Applicant: M Fordham SC, with M Kalyk, instructed by the Crime and Corruption Commission Respondent: JR Hunter QC, with TE Schmidt, instructed by the Queensland Police Union Legal Group REASONS FOR DECISION [1] The Crime and Corruption Commission (“CCC”) seeks to appeal against the Tribunal’s decision in its original jurisdiction dismissing an application for disciplinary orders arising out of corrupt conduct alleged against Anthony William Lee. [2] In 2008 Renee Toms made a complaint to the Queensland Police Service (“QPS”) about excessive force used by Senior Constable Benjamin Price at the Whitsunday watchhouse. [3] Price’s conduct was recorded by Closed Circuit Television (“CCTV”) in the watchhouse. [4] Lee, a Senior Sergeant and member of the QPS since 1989, was assigned the task of conducting a preliminary inquiry into Ms Toms’ complaint. Lee was given a copy of the CCTV video footage. [5] Lee made written recommendations and prepared a report about his inquiries. Lee recommended that, amongst other things, the video footage corroborated Price’s version of events; and later made a recommendation that Price be exonerated. -- 3 of 19 -- 4 [6] An investigation into Lee’s handling of the complaint was undertaken by the QPS and sometime later by the CCC resulting in a number of proceedings concerning police misconduct and the CCC’s powers to take further action in relation to Lee’s conduct under the Crime and Corruption Act 2001 (Qld) (“CC Act”). [7] The current matter before the Appeal Tribunal arises from the CCC’s investigation into Lee’s handling of Ms Toms’ complaint, the CCC having exercised its powers under the CC Act to bring proceedings against Lee in QCAT.1 This required the Tribunal in exercising its original jurisdiction to make findings about certain disputed facts in circumstances where Lee elected not to give evidence. If the Tribunal was satisfied that all of the elements of s 15 of the CC Act had been met in order to find “corrupt conduct”, then the CCC sought an order that Lee be dismissed.2 [8] Following a three-day hearing, the Tribunal made findings about Lee’s conduct and was satisfied that all but one of the elements of s 15 of the CC Act had been met. In particular, s 15(1)(c) of the CC Act required the Tribunal to consider whether Lee’s conduct was engaged in for the purpose of benefiting Price or causing detriment to Ms Toms. The Tribunal was not satisfied that Lee’s conduct was undertaken for the purpose of benefiting Price or causing detriment to Ms Toms, and found that there were other, more probable, explanations for Lee’s conduct. The Tribunal dismissed the CCC’s application for disciplinary orders.3 [9] Whilst the CCC’s application for leave to appeal or appeal identified a number of grounds of appeal, in the oral hearing before this Appeal Tribunal, the CCC narrowed its appeal grounds to whether the Tribunal failed to properly assess the evidence and reach the correct conclusion as to whether Lee had engaged in corrupt conduct, and argued that the critical finding at paragraphs [191] and [192] of the Tribunal’s reasons that Lee engaged in the impugned conduct “to get the investigation off his desk” rather than “to benefit Price or cause detriment to Toms” was not open on the evidence.4 [10] Counsel for the CCC submitted that the learned Senior Member who constituted the Tribunal below made a series of factual findings in favour of Lee but in the absence of any evidence, which the CCC argued directly contravened the principles in Jones v Dunkel.5 Further, the CCC contended that the learned Senior Member made every relevant finding that was required for the purposes of s 15 of the CC Act and a finding of “corrupt conduct”, except on the question of “purpose”. The CCC says that there was no reason for Lee to recommend Price’s exoneration except to grant a benefit to Price. [11] Lee raised a contention by way of cross-appeal in relation to the learned Senior Member’s findings about the video of the CCTV footage6 by challenging the learned Senior Member’s findings at paragraphs [131] and [132] of the reasons. In short, the Tribunal found Lee’s statement to investigators that he could not watch the video at Whitsunday to be “untruthful”; and found that Lee had problems watching the video 1 CC Act, s 50. See application or referral - disciplinary proceeding, filed 18 July 2016, Appeal Book, p 1. 2 Under s 219I of the CC Act QCAT may make certain orders following a finding of corrupt conduct. 3 Crime and Corruption Commission v Lee [2017] QCAT 483 (“Reasons”). 4 Submissions of the appellant on application to amend grounds of appeal filed 26 April 2018, [3]. 5 (1959) 101 CLR 298. 6 Application for miscellaneous matters filed 10 September 2018. Leave was given to raise the contention at the hearing on 23 November 2018. -- 4 of 19 -- 5 at Mackay. Lee contended that, contrary to the Tribunal’s findings, the learned Senior Member should have found that the CCC’s failure to adduce evidence of the original video, or an explanation for its absence, meant it was conceivable that Lee watched the video in the original format, but the assault may not have been obvious to him.7 [12] It was common ground that the grounds of appeal raised questions of mixed fact and law for which leave is required.8 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.9 Further, leave to appeal will usually be granted where there is a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage.10 [13] We are satisfied that this matter raises a question of general importance about the application of the principle in Jones v Dunkel and the inferences that can be made by the Tribunal in exercising its original jurisdiction, including whether it is open to the Tribunal as the trier of fact to make findings or draw inferences from the evidence in circumstances where the respondent, in this case Lee, has elected not to give evidence in the proceedings, and where such evidence would not have assisted him. Leave to appeal should be granted. Background facts [14] It is convenient to adopt the following statement of the background:11  On 21 January 2008, Lee was assigned the task of investigating Ms Toms’ complaint against Price. Lee was given a full copy of a Compass Summary Report. The Summary of Precis on the first page of the report included a statement that: “The Concerned Party [Ms Toms] has had her version recorded on the tape and confirmed she wished to make a complaint. Watchhouse video tape was viewed and verified parts of the [Ms Toms’] version”.  On the same day, Lee received an email from Professional Practice Manager (PPM) Howe directing him to, amongst other things, speak with Ms Toms and view any footage.  Between 21 January 2008 and 1 May 2008, Lee did little to pursue the investigation. There is inconsistent evidence in relation to Lee’s contact with Ms Toms. Lee did not contact two other officers that were relevant to the investigation.  On 8 February 2008, Lee had a conversation with Price. The nature, content and extent of the conversation was in issue.  On 8 February 2008 and then again some weeks after 8 February 2008, Inspector O’Connell informed Lee that he had seen the video and had concerns about it. 7 Ibid. 8 QCAT Act, s 147. 9 Pickering v McArthur [2005] QCA 294 at [3] (Keane JA). 10 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389 (Carter J); McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 (Macrossan CJ),580 (McPherson J). 11 See submissions of the appellant dated 25 May 2018 and outline of submissions for the respondent filed 10 September 2018, and omitting footnotes. -- 5 of 19 -- 6 Inspector O’Connell said words to the effect “well you’ll have a look at it and you’ll see why, why this matter’s not good”.  Despite being directed to review the CCTV footage by PPM Howe, knowing that the footage existed and being informed of its adverse content by the Summary of Precis and by Inspector O’Connell, Lee did not watch or did not watch all of the CCTV footage and gave inconsistent evidence on the matter.  On 26 February 2008, Lee emailed a preliminary report to PPM Howe. That report noted: a) He had been unsuccessful in attempting to contact Toms; b) He had viewed the CCTV footage and that it corroborated Price’s version; and c) He recommended that no further action be taken with regards to the complaint until the court action concerning Toms was finalised.  On 30 April 2008, Toms pleaded guilty in writing and the charges were dealt with by the relevant Magistrates’ Court.  On 1 May at 10:19 am, Inspector O’Connell forwarded an email to Lee reporting on the determination of Toms’ proceedings. The email stated inter alia: “She did not appear – pleaded guilty in writing – but claimed the police had lied in the statement about what had occurred – but insisted she wanted to plead guilty.”  At 10:46 am, Lee sent an email to Inspector Batterham recommending that Price be exonerated. He stated: “It appears that the complainant is not interested in pursuing her complaint as 1) she did not appear in court 2) does not answer her mobile phone which is the only point of contact as she has moved from the Airlie Beach area.”  On 17 May 2008, PPM Wood emailed Lee directing him to conduct further inquiries including obtaining a full version of events from Toms and the other arresting officers and report on the video footage.  Lee took no further steps to investigate the proceedings.  On 24 May 2008, Price assaulted another watchhouse prisoner. On the same day, the Ethical Standards Command took over the investigation from Lee.  Lee participated in a first interview about his conduct on 5 August 2008.  Lee participated in a second interview about his conduct on 16 March 2011.  The accounts provided by Lee differed in various respects as between his first interview and his second interview, and as between his interviews and the documents. [15] It became apparent during the QPS investigation into Lee’s handling of the complaint that the CCTV footage did support Ms Toms’ version of the incident. Price was later -- 6 of 19 -- 7 charged with various offences including assault of Ms Toms. In October 2010, Price was sentenced in the District Court of Queensland to a term of imprisonment. [16] After Price’s criminal matters were finalised, the Crime and Misconduct Commission as it was then known (now the CCC), conducted an investigation into Lee’s handling of Ms Toms’ complaint. The QPS commenced disciplinary proceedings against Lee that were finalised and a sanction was imposed. [17] The CCC applied to the Tribunal for a review of the sanction imposed on Lee by the QPS. Lee later appealed that decision in QCAT’s appellate jurisdiction. The Appeal Tribunal returned the disciplinary matter concerning Lee to the QPS for reconsideration. [18] After finalisation of the QCAT matters, proceedings were commenced in the Supreme Court of Queensland in which Lee unsuccessfully challenged the CCC’s powers over the investigation. Lee appealed to the Court of Appeal, and that appeal was dismissed in June 2014. [19] Some years later, the CCC referred proceedings to this Tribunal in its original jurisdiction pursuant to s 50 of the CC Act to determine whether one allegation of corrupt conduct concerning Lee’s handling of Ms Toms’ complaint to the QPS was proven and, if so, seeking orders that he be dismissed.12 Tribunal’s findings [20] The Tribunal heard evidence from several witnesses. Relevant evidence was also contained in transcripts of interviews given by Lee during the QPS disciplinary investigation. Lee elected not to give or call any evidence in the Tribunal proceeding. [21] In its reasons, the Tribunal properly noted that the CCC bore the onus of proving that the conduct occurred, that the conduct was “corrupt conduct”,13 and that the standard of proof to be applied was the civil standard of balance of probabilities with the application of the principles in Briginshaw v Briginshaw.14 [22] Relevantly, s 15(1) of the CC Act provides: 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 12 CC Act, s 219I. 13 Reasons, [16]. 14 Reasons, [17] to [18]. -- 7 of 19 -- 8 (b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that – (i) is not honest or is not impartial; or (ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or (iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and (c) 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. [23] The learned Senior Member considered each of the elements of s 15 and identified “the critical issue” as being “Lee’s motive for his conduct”.15 The learned Senior Member found that “[t]his issue [i.e. motive] is considered in the context of whether the conduct satisfies all of the elements of s 15”.16 [24] The Tribunal’s findings of fact about Lee’s conduct appear in paragraphs [36] to [158], inclusive of the reasons. Relevantly, the learned Senior Member summarised her findings as follows: [158] In summary I have found that: • Lee was loose with the truth in the running sheet by stating that he had watched the video (when at best he had only watched part of it) and he recklessly (but not deliberately) misrepresented that the video corroborated Price’s version of events; • He conducted an inadequate investigation, in particular he should have watched the video in circumstances where he was on notice that the complaint was not baseless and the video supported Ms Tom’s [sic] [version]; • His recommendation of exoneration should not have been made when he had sufficient information to put him on notice that he should conduct a more thorough investigation which would have led to a different result. [25] In considering each of the elements of s 15, the learned Senior Member concluded that Lee’s conduct satisfied all but one of the elements of s 15. 15 Reasons, [159]. 16 Ibid, [159]. -- 8 of 19 -- 9 [26] The learned Senior Member accepted the CCC’s submission that Lee’s conduct in representing that the video corroborated Price’s version, conducting a grossly inadequate investigation and too quickly coming to the recommendation to exonerate Price, satisfied s 15(a), and found: [161] Lee was a member of the QPS and his conduct occurred whilst he was undertaking a preliminary enquiry for an internal disciplinary investigation. I accept that in representing that the video corroborated Price’s version, conducting a grossly inadequate investigation and too quickly coming to the recommendation to exonerate Price, this conduct did, as submitted by the CCC: i) Potentially pervert an appropriate investigation of Price’s misconduct; and ii) Undermine public confidence in the QPS such as to satisfy the first element of corrupt conduct. [27] In considering s 15(b), the learned Senior Member found that Lee misrepresented to the QPS professional practice manager in his recording in the running sheet that the video corroborated Price’s version.17 Further, the learned Senior Member accepted that Lee was less than truthful in his second interview with investigators in saying that he did not believe he could watch the video at Whitsunday and that is why he did not attempt to watch it then.18 The learned Senior Member found that Lee was also inconsistent in his answers to investigators in relation to his interview with Price and whether Price was directed to answer questions.19 The learned Senior Member was satisfied that, amongst other things, Lee’s conduct resulted in the performance of his functions in conducting the investigation in a way that was not honest.20 The learned Senior Member found that Lee’s conduct could have resulted in the performance of his functions in conducting the investigation in a way that was not impartial in that the investigation “potentially wrongly placed Price in a favourable light”.21 [28] The learned Senior Member was satisfied in considering s 15(c) that Lee’s conduct in “misrepresenting what the video showed, conducting an [in]adequate investigation and recommending Price be exonerated did confer a benefit on Price”.22 The learned Senior Member also accepted that in not having her complaint of excessive force dealt with, “Ms Toms suffered a detriment”.23 [29] The learned Senior Member identified that critical to her findings about Lee’s conduct was whether Lee had an intention to “deliberately confer a benefit on Price” by misrepresenting what the video showed, conducting an inadequate investigation and recommending the exoneration of Price.24 [30] The learned Senior Member considered the submissions advanced by the CCC that it could be inferred from the evidence that Lee must have engaged in the conduct for the 17 Reasons, [162]. 18 Ibid, [163]. 19 Ibid, [164]. 20 Ibid, [165]. 21 Ibid, [166]. 22 Ibid, [168]. 23 Ibid, [170]. 24 Ibid, [172]. -- 9 of 19 -- 10 purpose of benefiting Price.25 The learned Senior Member considered Lee’s submission that the evidence was insufficient to enable the Tribunal to be reasonably satisfied, having regard to the seriousness of the allegations and the inherent unlikelihood that Lee would destroy a promising career and by misrepresenting the contents of the CCTV that Lee’s deception would “go undetected”.26 The learned Senior Member found that she was not able to draw the inference urged upon her by the CCC even after considering the rule in Jones v Dunkel. The Tribunal held: 27 In this case, however, having regard to the evidence before me and the possible explanations for Lee’s conduct which do not involve an intention to confer a benefit on Price I am not able to draw the inference urged upon me by the CCC. This is so even after considering the principles in Jones v Dunkel. [31] The learned Senior Member, having made findings about Lee’s conduct and more importantly in considering whether Lee’s conduct engaged in was for the purpose of benefiting Price or causing detriment to Toms, identified “possible explanations” for Lee’s conduct.28 Relevantly, the learned Senior Member made observations about Lee’s conduct and referred to Lee’s statement about the CCTV footage,29 the inadequate investigation,30 conducting any other necessary inquiries,31 and the exoneration.32 [32] The learned Senior Member found that, amongst other things, it was improbable that a Detective Senior Sergeant with a promising career would put his future in jeopardy by “intentionally protecting a uniformed Senior Constable who [he] had never met”.33 Further, the learned Senior Member found that Lee should have “at least watched the video in its entirety”, but in conducting an inadequate investigation Lee did not intend to “benefit Price or cause detriment to Toms”.34 Finally, the learned Senior Member held that “it [is] more likely that [Lee] made the recommendation [for exoneration] to get the investigation off his desk”.35 [33] The learned Senior Member was not satisfied that Lee’s conduct was for the purpose of benefiting Price or causing detriment to Ms Toms and ultimately found Lee did not engage in corrupt conduct. She said: [201] I am not satisfied to the requisite standard that Lee’s conduct was undertaken for the purpose of benefiting Price or causing detriment to Ms Toms. On the evidence, there are other, more probable, explanations for his conduct. [202] Because I am not satisfied that the conduct Lee was engaged in was for the purpose of benefiting Price or causing detriment to Toms, it follows that I am not satisfied he engaged in corrupt conduct. 25 Reasons, [173] to [174]. 26 Ibid, [175] to [176]. 27 Ibid, [178]. 28 Ibid, [79] to [201]. 29 Ibid, [179] to [182]. 30 Ibid, [183] to [188]. 31 Ibid. 32 Ibid, [189] to [206]. 33 Ibid, [181]. 34 Ibid, [185]. 35 Ibid, [192]. -- 10 of 19 -- 11 [203] I am of the view that Lee’s conduct fell well below the standards the public are entitled to expect and his failing to conduct a proper inquiry possibly had the consequence that Price reoffended. It does not however reach the threshold of corrupt conduct.36 [34] In those circumstances, the learned Senior Member was not satisfied that all of the elements of s 15 of the CC Act for a finding of corrupt conduct had been satisfied and dismissed the application.37 The principle in Jones v Dunkel [35] In Jones v Dunkel, Kitto, Menzies and Windeyer JJ, in separate reasons for judgment, held that where a party fails to adduce evidence, inferences may be drawn by the trier of fact in certain circumstances that the evidence, if produced, would have exposed facts unfavourable to the party. Windeyer J restated the following text from “Wigmore on Evidence”: 38 ‘The failure to bring before the tribunal some circumstances, document, or witness, when either the party himself or his opponent claims the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted’. [36] The principle in Jones v Dunkel was described by the plurality of the High Court in ASIC v Hellicar39 as “a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used”.40 Put simply, where there is an unexplained failure by a party to adduce evidence, inferences may be drawn in certain circumstances. In Hellicar, the plurality referred to Lord Mansfield’s dictum in Blatch v Archer41 that all evidence is to be weighed “according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.42 [37] In separate reasons, Heydon J said:43 …As the Court of Appeal said, two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party. 36 Reasons, [201] to [203]. 37 Ibid, [207]. 38 (1959) 101 CLR 298, 320-321. 39 (2012) 247 CLR 345; [2012] HCA 17. 40 Hellicar at [167]. 41 (1774) 1 Cowp 63 at 65. 42 At [166]. 43 At [232]. -- 11 of 19 -- 12 [38] It is settled law that the principle in Jones v Dunkel has application in civil penalty proceedings. In ASIC v Flugge and Geary,44 Robson J summarised the relevant principles as follows: 45 (a) the principles of Jones v Dunkel apply to civil penalty procedures such as the claims against Flugge; (b) in circumstances where ASIC has established a case against Flugge, his failure to give evidence may (not must) enable the trier of fact to more readily adopt the conclusion to which the evidence points; (c) within those circumstances, the trier of fact may (not must) readily conclude that Flugge’s evidence would not have assisted his case; (d) the failure of Flugge to give evidence to rebut the inferences sought to be drawn by ASIC against them, particularly in relation to his knowledge, enables the Court to more comfortably draw an inference unfavourable to Flugge; (e) this principle has particular application in the case of Flugge as he is the defendant. [39] Regard also needs to be had to the established proposition that the Jones v Dunkel inference will not be drawn if there are facts which provide an explanation of why the witness was not called or which show that the reason for not giving evidence was not that the party fears to do so. Further, the principle in Jones v Dunkel does not permit the trier of fact or tribunal to draw inferences “to make up any deficiency of evidence,”46 or “fill gaps in the evidence, or convert conjecture and suspicion into inference”.47 The appeal and cross-appeal [40] The CCC argued that the Tribunal below properly found that the rule in Jones v Dunkel applied to these proceedings but misconceived its application.48 The CCC submitted that the principle in Jones v Dunkel is a process of inferential reasoning that either is or is not available on the evidence. The question that the Tribunal was required to direct itself to was whether the natural factual inference, that Lee’s evidence would not have assisted, did not apply in the circumstances. The CCC argued that the Tribunal did not find that the CCC had failed to establish a prima facie case, nor did it identify and find a valid reason for Lee not giving evidence.49 [41] The CCC submitted that, had the principle in Jones v Dunkel been applied, the fact that a witness had already provided statements to investigators or that the witness may fear criticism at a hearing would only strengthen the availability of the usual Jones v Dunkel inferences.50 In summary, the CCC said that Lee’s failure to explain 44 (2016) 342 ALR 1; [2016] VSC 779. 45 Ibid, [880]. 46 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at [53] (Gleeson CJ and McHugh J) citing Jones v Dunkel at 312 per Menzies J and at 308 per Kitto J. See also The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 at [56]. 47 The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 at [56]. 48 Submissions of the appellant dated 25 May 2018, p 10. 49 Ibid. 50 Ibid, p 11. -- 12 of 19 -- 13 inconsistencies invites the inference that the evidence would not have assisted.51 Further, the CCC submitted that despite stating that the principle in Jones v Dunkel applied, the Tribunal did not adopt or disclose a course of reasoning consistent with a proper understanding of the principles in Hellicar and Jones v Dunkel.52 The Tribunal approached its fact-finding task on critical issues without any regard to Lee’s decision not to give evidence; and the Tribunal placed significant reliance on “the possible explanations for Lee’s conduct” which Lee could have, but did not, give evidence on.53 [42] Lee responded that the Tribunal clearly found that the CCC did not have a prima facie case because it dismissed the application on the basis that the CCC had failed to prove the element of purpose or intent.54 Lee cited ASIC v Flugge,55 arguing that in Flugge the court did not have the “benefit of a version or explanation”, unlike in this case where the Tribunal had interviews with Lee.56 Lee submitted that Flugge provides some authority for the proposition that “the court should be most cautious about finding that a conversation took place over 15 years ago in the absence of some reliable contemporaneous record or other satisfactory corroboration”.57 In this case the matters on which Lee would have been cross-examined occurred approximately eight years previously,58 and the Tribunal had the benefit of earlier, and more reliable, records of interviews in respect to Lee’s evidence.59 [43] Lee argued that whilst the Tribunal found that Lee had not watched the video and had not seen the excessive force, it did not follow that he acted with dishonesty for the purpose of benefiting Price or causing detriment to Toms.60 The only reasonable inference available to the Tribunal on the evidence, and what it correctly found, was that Lee’s motivation was to get the investigation off his desk.61 Lee contended that that the Tribunal correctly applied the principle in Jones v Dunkel and correctly exercised its discretion, and that the CCC had failed to demonstrate error.62 [44] Mr Hunter QC, who appeared with Mr Schmidt for Lee, argued that Lee’s silence did not relieve the CCC of its obligation to prove the corrupt intent to what was necessarily a high standard and that silence did not fill that gap. The conclusion reached by the Tribunal was not a speculative one, but was one that was reasonably open on the evidence. Mr Hunter argued that if Lee’s initial report (in February 2008) was a deliberate lie, it was almost inevitably going to be uncovered given the “layers of review”. The CCC’s case had to be that, even though it was likely that the video footage would be reviewed by the QPS professional practice manager, Ethical Standards and potentially the CCC, Lee set about attempting to “cover” for a uniformed senior constable from a different district, whom he did not know. Counsel relied on the evidence of Mr Woods as to the “practice” at the time, referring to Lee 51 Ibid. 52 Ibid. 53 Ibid. 54 Outline of submissions for respondent filed 10 September 2018, [18]. 55 [2016] VSC 779. 56 Ibid. 57 Ibid, [24], see Flugge [890] and [891]. 58 Outline of submissions for respondent filed 10 September 2018, [24]. 59 Ibid. 60 Outline of submissions for respondent filed 10 September 2018, [43]. 61 Ibid, [44]. 62 Ibid, [46]. -- 13 of 19 -- 14 “writing off” the complaint of Ms Toms in circumstances where a plea of guilty was entered and there had been no adverse comment by the Magistrate. It was contended that the learned Senior Member was not hypothesising about “these things”, which were conclusions that naturally flowed from the evidence. [45] Counsel for Lee submitted that there were good grounds to be cautious about assertions made by Price about things that had occurred many years in the past, particularly Price’s evidence that Lee said to him words to the effect “I should be able to tidy this up”. Counsel pointed to evidence that Price also said that he received a letter from Ethical Standards telling him that he had no case to answer and that he had effectively been given the “thumbs up”. No such letter was produced by the CCC and the learned Senior Member found that no such letter had been sent. It was also submitted that it was clear Lee knew that Ms Toms was on the Gold Coast and must have spoken to her; he could not have had information that she was on the Gold Coast unless he had spoken to her. [46] It was conceded, by reference to the video, that there can be no doubt that what Price did to Ms Toms amounted to a “serious offence”. It was submitted, however, that the video produced was not the video that Lee saw, that there was “clear evidence” that it was likely that Lee experienced difficulties in playing the video, and this was supported by the evidence of others. Further, it should not be assumed that the video that is “strikingly clear as to violence” is what Lee saw. Counsel invited this Appeal Tribunal to consider two possibilities: first, that Lee saw the video and saw the violence and then deliberately lied about it corroborating the account of Price; secondly, Lee did not see the violence because it occupies a period of 37 seconds on the video which was, according to what he told the investigators, “in time lapse”. Counsel for Lee described it as “a highly unlikely scenario” because of the risk of being discovered. As to the later possibility or alternative submission, it was submitted that Lee did not see “it”, meaning the violence. Further, if Lee’s intention was to deceive or to assist Price, or cause a detriment to Toms, Lee actually gave the video to Ethical Standards and this (meaning Lee’s actions) is inconsistent with an intention to advantage Price. [47] Finally, Mr Hunter QC submitted that the effect of the appellant’s contention was that the onus of proof should be reversed and Lee had to get into the witness box to give evidence about his state of mind. The conclusion reached by the learned Senior Member was reasonably open and not speculative, remembering that a finding of dishonesty or corruption was required to be made to a high standard. The delay between the events in question and the time when Lee would have given evidence before the Tribunal was a “powerful factor” weighing in favour of him not giving evidence because he would have been accused, if he denied corrupt intent, of simply reconstructing the events that occurred so many years earlier. Error in the Tribunal’s findings and application of the rule in Jones v Dunkel [48] The Tribunal’s task was to analyse the evidence and not hypothesise about what was said or done. Lee was the only witness who could have given evidence about the conduct but declined to do so. The power to contradict or displace any inferences that may be drawn by the trier of fact lay with Lee, but he declined to exercise that power by not giving evidence. [49] The relevant evidence was as follows: -- 14 of 19 -- 15 (a) Lee was given a full copy of the Compass Summary Report when he was allocated the task of the investigation.63 The Summary of Precis stated as follows [emphasis added]: The CP alleges that excessive force was used during her arrest for a stealing matter. The CP admits being abusive and struggling, assaulting the officer by kicking and digging her fingernails into the officer drawing blood in order to stop the P.O twisting the handcuffs that had been causing her pain. The CP has been taken to the floor and sustained a small cut to her chin as a result. QAS attended and treated the P.O and CP and recommended that the offender attend a G.P and seek further attention. The CP has had her version recorded and watchouse video tape was viewed and verified parts of the CP’s version. The CP was charged with obstruct, serious assault and stealing. (b) Lee received an email from PPM Howe on 21 January 2008 providing the Compass Report and directing him to, amongst other things, “establish whether or not the matter is (i) substantiated; or (ii) unsubstantiated”. Lee was directed to “not conduct a full investigation at this point in time”.64 (c) The QPS had in place a complaint and resolution procedures policy at the time Lee was directed to conduct an investigation.65 (d) Lee “unsuccessfully attempted to contact Ms Toms on a number of occasions…he was unable to leave a message…he did at least have one conversation with [Ms Toms]…”.66 (e) Inspector O’Connell watched the CCTV footage at the Whitsunday station and after watching the video “was concerned about Price’s conduct”;67 (f) Inspector O’Connell attended the Whitsunday watchhouse on 8 February 2008 and gave Lee a copy of the video;68 (g) Inspector O’Connell made Lee “aware that he had concerns about what he had seen on the video, that there were other issues with Price and that he wanted the matter expedited”.69 (h) Inspector O’Connell spoke to Lee on 8 February 2008; and had a subsequent conversation with Lee.70 63 Reasons, [49], [48]. 64 Reasons, [50]. 65 Ibid, [51]. 66 Ibid, [74]. 67 Ibid, [77]. 68 Ibid, [78]. 69 Ibid, [91]. 70 Ibid, [92], [94]. -- 15 of 19 -- 16 (i) On 26 February 2008, Lee emailed a preliminary report to the PPM detailing inquiries he had made to date. Lee noted in the report his unsuccessful attempts to contact Ms Toms, that he had viewed the CCTV footage and that it corroborated Price’s version of events; and he recommended that no further action be taken with regards to the complaint until the court action concerning Ms Toms was finalised.71 (j) On 30 April 2008, Ms Toms pleaded guilty in writing and the charges were dealt with by the Magistrates Court.72 (k) On 1 May at 10:19 am, Inspector O’Connell forwarded an email to Lee reporting the determination of Ms Tom’s proceedings.73 The email stated, amongst other things, that: 74 [Ms Toms] did not appear- pleaded guilty in writing – but claimed the police had lied in the statement about what had occurred – but insisted she wanted to plead guilty…. (l) At 10:46 am, Lee sent an email to Inspector Batterham recommending that Price be exonerated. Lee stated: 75 Therefore the matter has been finalised in court with no adverse finding being made by the Magistrate regarding the police action. It appears that the complainant is not interested in pursuing her complaint as 1) she did not appear in court 2) does not answer her mobile phone which is the only point of contact as she has moved from Airlie Beach area. I would therefore recommend that the officers involved in this complaint be exonerated. (m) “The use of excessive force can be seen on the video. The footage does not corroborate Price’s version”.76 (n) “Lee did not give evidence. His previous statements about what he saw were inconsistent”.77 (o) Lee’s statement in the running sheet that the video footage corroborated Price’s version of events “was baseless”. It clearly showed the use of excessive force/assault on Ms Toms”.78 (p) If Lee “watched the whole video the assault was clear”. Inspector O’Connell and Constable Williams gave evidence that they watched the video at Whitsunday and saw the assault.79 Lee was “untruthful” when he told investigators that he could not watch the video at Whitsunday. Lee had the 71 Ibid, [6]. 72 Ibid, [7]. 73 Ibid, [149]. 74 Reasons, [149]. 75 Ibid, [138] and [150]. 76 Ibid, [121]. 77 Ibid, [122]. 78 Ibid, [129]. 79 Ibid, [131]. -- 16 of 19 -- 17 Compass Summary Report, which set out in the Precis that stated that the recording “was viewed and verified parts of Ms Toms’ version”.80 (q) “At some point Lee misrepresented the facts. Whether he watched none or some [of the video]”, Lee had no basis to state that the video corroborated Price’s version of events.81 [50] It does not matter whether Lee did in fact watch the video or whether due to the quality of the video the assault was not obvious. The unchallenged findings of fact by the learned Senior Member were that Lee had the Precis and Inspector O’Connell had made Lee aware of his concerns about the video on 8 February 2008, and again some weeks later.82 Further, as found by the learned Senior Member, Lee did not attempt to watch the video at Whitsunday watchhouse.83 There were other steps that could have been taken by Lee in investigating the matter. As found by the Tribunal, “[Lee] could have returned to the Whitsunday watchhouse and watched [the video]. He could also have sent [the video] to Brisbane to have it enhanced”.84 Given the findings made by the Tribunal about what was said to Lee by Inspector O’Connell about his concerns about the video together with what was recorded in the Compass Summary Report and Precis, regardless of whether Lee watched the video and the assault was not obvious to him, Lee should have been apprehensive when preparing the report that was unequivocal and stated that the video corroborates Price’s version. As found by the Tribunal: 85 At the time that Lee commenced the investigation in January, he had the compass report which should have put him on notice that the complaint was not completely baseless. I have accepted Inspector O’Connell expressed his concerns to Lee about the contents of the video. [51] The full Precis as set out in the Compass Summary Report highlighted the fact that Ms Toms had an injury to her chin and that “QAS” (Queensland Ambulance Service) treated Ms Toms and “recommended that [she] attend a [general practitioner] and seek further action”. Further, the Precis stated that Ms Toms has had her “version recorded” and the watchhouse video tape “was viewed and verified parts of [Ms Tom’s] version”. These were matters known to Lee at the time he prepared the report and the recommendation about the video corroborating Price’s version. [52] The clear evidence before the Tribunal was that the use of excessive force can be seen in the video and that the footage does not corroborate Price’s version.86 Lee had the Compass Summary Report Precis that referred to the video and more importantly the video that in part verified the allegations brought by Toms.87 The learned Senior Member found that Lee at some point misrepresented the facts.88 She found that Lee had no basis to state that the video corroborated Price’s version of events. The timing of Lee’s recommendations to recommend exoneration of Price is also important. It 80 Ibid, [131]. 81 Ibid, [133]. 82 Ibid, [78], [142], [145]. 83 Reasons, [144]. The learned Senior Member did not accept that that Lee “attempted to watch [the video] at the Whitsunday watchhouse”. 84 Reasons, [153]. 85 Ibid, [142]. 86 Ibid, [121]. 87 Ibid, [133]. 88 Ibid, [140]. -- 17 of 19 -- 18 was 27 minutes after Lee received word of the finalisation of Ms Toms’ criminal proceedings and without conducting any further investigation.89 At that time, Lee had evidence from O’Connell who had looked at the video and raised his “concerns” about it with Lee; and Lee had the Precis. [53] Having made findings about Lee’s conduct and the matters which, on any view, he must have known, the relevant question for the Tribunal was whether it could be satisfied to the requisite standard that he made the exoneration recommendation for the purpose of providing a benefit to Price or causing a detriment to Toms. In the absence of any evidence from Lee, that question had to be determined on the facts as found by the Tribunal and on the inferences properly to be drawn from those facts. [54] It is clear that Lee could have given evidence on this issue, but chose not to do so. Fear (if he had such a concern) of being cross-examined about events which had occurred nine years previously did not found an explanation for his failure to give evidence. [55] Despite referring to the principles in Jones v Dunkel, the approach adopted by the learned Senior Member was flawed. Rather than applying those principles to the facts and inferences drawn from the evidence, she raised a number of hypothetical alternative explanations for Lee’s conduct and then preferred one of those hypotheses without any evidentiary basis for doing so. In particular, she found it “more likely” that Lee made the recommendation to get the investigation off his desk. In fact, there was no evidence that Lee had ever said this. Nor was there any evidence from which that “explanation” could properly be inferred. [56] The facts as found by the Tribunal and not now challenged clearly allowed for the drawing of an inference that Lee had made the exoneration recommendation to benefit Price. It was within Lee’s power to give evidence to rebut the drawing of that inference, but he chose not to. The Tribunal did not approach the question in this way, but impermissibly explored and preferred hypothetical propositions. The Tribunal’s approach was erroneous, and its conclusion with respect to the s 15(c) element must be set aside. [57] Given the otherwise unchallenged findings of the Tribunal, which this Appeal Tribunal adopts, and the obvious fact that Lee chose not to give evidence, this Appeal Tribunal is in as good a position as the primary decision maker to determine this issue.90 [58] On the facts found by the learned Senior Member which are unchallenged before this Appeal Tribunal, there was and is a compelling inference to be drawn that Lee made the recommendation for the purpose of conferring a benefit on Price (exoneration) and a detriment on Ms Toms (effective dismissal of her complaint). Lee’s failure to give evidence and provide an alternative, credible explanation for his conduct is a matter which enables this Appeal Tribunal to more readily draw that inference. In these circumstances, this Appeal Tribunal finds that Lee’s impugned conduct was engaged in for the purpose of conferring a benefit on Price and causing a detriment to Ms Toms. 89 Ibid, [149], [150]. 90 Proceeding under s 147(3) of the QCAT Act. -- 18 of 19 -- 19 [59] Accordingly, the s 15(c) element of the definition of “corrupt conduct” is satisfied in this case. Conclusion [60] It follows that, with the unchallenged findings below and this Appeal Tribunal’s finding on s 15(c), all elements of s 15 are satisfied in this case. There will therefore be a finding that Lee engaged in corrupt conduct. [61] There will be orders to that effect. [62] Having made those orders, it will be necessary to hear from the parties as to the necessary orders to be made consequent upon the finding of corrupt conduct. [63] The Appeal Tribunal makes directions accordingly. -- 19 of 19 --