Crime and Corruption Commission v Assistant Commissioner Paul Taylor & Anor [2018] QCAT 80

CITATION: Crime and Corruption Commission v Assistant Commissioner Paul Taylor & Anor [2018] QCAT 80 PARTIES: Crime and Corruption Commission (Applicant) v Assistant Commissioner Paul Taylor (First Respondent) and Christopher Kevin Shepherd (Second Respondent) APPLICATION NUMBER: OCR185-17 MATTER TYPE: Occupational regulation matters HEARING DATE: 27 February 2018 HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 21 March 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Assistant Commissioner on sanction on 9 August 2017 is set aside. 2. A decision is substituted that Christopher Kevin Shepherd is dismissed from the police service effective at the end of 31 August 2018. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where officer had acted dishonestly with club funds on nine occasions and was disciplined many years later – where in interviews he continued to deny the dishonesty – where evidence against the officer was overwhelming – where in disciplinary proceedings his pay was reduced by two pay points for a period of 12 months – whether he should have been dismissed – the effect of the delay on the correct and preferable sanction on review -- 1 of 19 -- 2 Crime and Corruption Act 2001 (Qld), s 219A, s 219BA, s 219G, s 219H Police Service Administration Act 1990 (Qld), s 1.4, s 7.4 Police Service (Discipline) Regulations 1990 (Qld), s 3, s 5, s 6, s 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 127 Aldrich v Ross [2001] 2 Qd R 235 Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169 Crime and Corruption Commission v Deputy Commissioner Barnett & Anor [2017] QCA 320 Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490 Flegg v Crime and Misconduct and Anor [2013] QCA 376 Kennedy v Deputy Commissioner Stewart [2011] QCAT 667 Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66 Kennedy v Deputy Commissioner Stewart [2012] QCATA 258 Re: Bowen (1996) 2 Qd R 8 Vann v Deputy Commissioner R N McGibbon No. TA4 of 2001 (27 February 2002) Wadham v Deputy Commissioner Ian Stewart [2010] QCAT 578 APPEARANCES: APPLICANT: David Caughlin of counsel instructed by the Crime and Corruption Commission FIRST RESPONDENT: Belinda Wadley, A/Principal Legal Officer, Queensland Police Service Legal Unit SECOND RESPONDENT: Matt Black of counsel, instructed by Gilshenan & Luton Lawyers REASONS FOR DECISION [1] The main issue in this review is whether a police officer found to have been dishonest with club funds and who had persisted in denying the dishonesty should be dismissed. A secondary issue is whether the penalty should be reduced because of inordinate delay in prosecuting an internal disciplinary process. -- 2 of 19 -- 3 [2] The decision made by the Assistant Commissioner in the police disciplinary process was that the officer should be put on reduced pay for a period of 12 months. That decision was automatically given to the Crime and Corruption Commission who, rightly in the view that I have ultimately reached, considered that this sanction was too lenient. The Commission applied to the tribunal for a review of the decision. The Legislative Provisions [3] The disciplinary process was initiated by a direction dated 5 February 2016 for Constable Shepherd to attend a disciplinary hearing to deal with the allegation of “misconduct”. [4] Misconduct is defined in the definition section of the Police Service Administration Act 1990 (section 1.4) as follows: misconduct means conduct that— (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. [5] In this instance, the direction to attend the disciplinary hearing alleged that Constable Shepherd’s conduct had been “improper” which can be seen to come within the definition of misconduct in paragraph (a) in the definition. [6] Having found that Constable Shepherd’s conduct had been “improper”, the Assistant Commissioner proceeded to consider sanction. The Assistant Commissioner’s authority in this respect was constrained by section 6 of the Police Service (Discipline) Regulations 1990 (Qld) whereby he was not permitted to dismiss the officer. It is now said by the Commission however, that Constable Shepherd should have been dismissed for the misconduct. It was agreed at the hearing before me that if the Assistant Commissioner had considered that dismissal was warranted he could have referred the decision about this to a more senior officer. [7] It is common ground between all parties to this review that there are a number of sanctions available in the disciplinary process, some of which are not identified or described in the legislative provisions. In two places in the legislative provisions the available sanctions are described. [8] Firstly there is section 7.4(3) of the Police Service Administration Act 1990 (Qld), which reads: 7.4 Disciplinary action (3) Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following— -- 3 of 19 -- 4 (a) dismissal; (b) demotion in rank; (c) reprimand; (d) reduction in an officer’s level of salary; (e) forfeiture or deferment of a salary increment or increase; (f) deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units. [9] There is a slightly different list in section 10 of the Police Service (Discipline) Regulations 1990 (Qld) which reads: 10 Disciplines that may be imposed Subject to regulations 11 and 12 (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3) of the Act or regulation 5) the disciplinary sanctions that may be imposed under these regulations are the following— (a) cautioning or reprimand; (b) a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units; (c) a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank); (d) forfeiture or deferment of a salary increment or increase; (e) a reduction in the officer’s rank or classification; (f) dismissal from the police service. [10] This needs to read in the light of section 5 of those regulations which reads: Disciplinary powers of the commissioner and a deputy commissioner Where the commissioner or a deputy commissioner has formed the opinion that an officer should be disciplined, the commissioner or deputy commissioner may order that the officer be disciplined in a manner that appears to the commissioner or deputy commissioner to be warranted. [11] In Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66, Hon James Thomas AM QC and Member Howard said that the examples in section 7.4(3) of the Police Service Administration Act 1990 (Qld) were “not exclusive, and do not limit the range of disciplines that may be imposed or require restriction of the wide discretion conferred in sections 5 and 10 of the Police Service (Discipline) Regulations 1990”. Therefore another sanction which was available was suspension for a limited period. In Kennedy the tribunal decided that the officer concerned should be -- 4 of 19 -- 5 suspended for six months. There was an appeal but the power to make that order was not questioned in the appeal.1 [12] The majority in Crime and Corruption Commission v Deputy Commissioner Barnett & Anor [2017] QCA 320 also approached the question of sanction on the basis that there was a wide ranging power to impose different types of sanction.2 [13] The application is for a review of the sanction imposed. This is a “reviewable decision” within the definition of those words in section 219BA of the Crime and Corruption Act 2001 (Qld). By section 219G the Commission may apply to the tribunal for a review. [14] Under section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”), the function of the Tribunal on a review application is to produce the correct and preferable decision by way of a rehearing on the merits. In doing so, I remind myself that it is also appropriate in coming to the correct and preferable decision to give considerable weight to the view of the Assistant Commissioner about what is needed for the maintenance of internal discipline given his expertise in the administration of the police service.3 [15] In this type of hearing, when conducting its rehearing to reach the correct and preferable decision, unless leave is given, the tribunal is limited to the evidence given before the original decision maker.4 In this case the tribunal did give leave for further evidence to be submitted. On that basis the tribunal received in evidence an affidavit from Constable Shepherd which described the effect of the disciplinary proceedings upon him.5 The tribunal also received in evidence from the Assistant Commissioner a copy of Constable Shepherd’s service history. The facts and findings on substantiation [16] Constable Shepherd joined the police service in February 2008 at the age of 27. About three years later in early 2011 he was elected deputy president of the Mount Isa Police Recreation Club. Shortly afterwards the club president left the area so Constable Shepherd effectively acted in the president’s role. This was a voluntary, unpaid role. He was entitled to possession of the club’s debit card which was used to make purchases on the club’s behalf. [17] The Ethical Standards Command was alerted to the possibility of matters of concern in an anonymous letter sent to them on 24 July 2012. Bank 1 Kennedy v Deputy Commissioner Stewart [2012] QCATA 258. 2 Crime and Corruption Commission v Deputy Commissioner Barnett & Anor [2017] QCA 320, [31] - [34]. 3 Aldrich v Ross [2001] 2 Qd R 235, [43], [45]; also Flegg v Crime and Misconduct and Anor [2013] QCA 376, [16]. 4 Crime and Corruption Act 2001 (Qld), s 219H. 5 Affidavit sworn on 24 November 2017. -- 5 of 19 -- 6 statements were attached with a number of suspicious transactions marked on them. [18] A few days later, on 1 August 2012 a Senior Sergeant started to investigate the allegations. Constable Shepherd became aware very quickly that he was under investigation, and he called the Senior Sergeant who was investigating the matter and expressed his willingness to be interviewed, and described his use of the card as “unofficial reimbursement”. [19] He was however, not interviewed at that time, and instead the investigating officer contacted some of the recipients of the club’s money where the card had been used in the suspicious transactions. In an interim report of 1 October 2013 the investigating officer referred to 20 suspicious transactions. Of these, two were found to have been legitimate, eight required further investigation and 10 were cash withdrawals which would be difficult to deal with and required some input from Constable Shepherd. [20] The first time Constable Shepherd was formally interviewed about these matters was on 25 February 2014.6 At that interview he said he had only used the card to benefit the club and had never misused the card in any way. He said he had used the card to make purchases for alcohol, food, send offs, functions, plaques, Austar payments, materials and lighting. With respect to times when he was alleged to have used the card as now alleged, he denied them all, although not all transactions were put to him at that time. [21] An investigation report dated 7 March 2014 said that there was insufficient evidence to proceed with any criminal procedure but that Constable Shepherd’s ex-wife ought to be interviewed. This happened in April 2014 and as a result the investigation was re-opened and further enquiries were made. [22] The second interview was on 21 January 2015. Again Constable Shepherd denied using the card on the occasions as now alleged, but did admit using it on Mornington Island saying that it was for the purchase of meals for fellow officers. [23] In July 2015 the Ethical Standards Team recommended that the matters as now alleged were capable of substantiation. As a result, on 5 February 2016 Constable Shepherd was directed to attend a disciplinary hearing on 17 March 2016 before the Assistant Commissioner. Instead of a hearing however, it was agreed that the matter could be dealt with on the papers. For that purpose Constable Shepherd presented written submissions prepared by his solicitors. [24] A decision was made on substantiation and on sanction on 9 August 2017. Then following the application for review filed in the tribunal, the matter was heard before me in February 2018. 6 Page 659 of the bundle. -- 6 of 19 -- 7 [25] Because of his responses in the interviews, in the disciplinary proceedings it was alleged that Constable Shepherd had also acted improperly by being untruthful in the interviews. [26] The matters alleged against Constable Shepherd and found substantiated by the Assistant Commissioner were as follows: That on diverse dates between the 3rd of March 2011 and the 2nd of May 2012 at multiple locations in Queensland your conduct was improper in that you:- (a) dishonestly obtained property to the value of $764.02 by using a debit card without the consent of the Mount Isa Police Recreation Club; (b) were deliberately untruthful during discipline interviews in relation to the use of the debit card being the property of the Mount Isa Police Recreation Club. (Section 1.4 of the Police Service Administration Act 1990, s.2 of the Standard of Practice Professional Conduct and s.9 (1) (f) of the Police Service (Discipline) Regulations 1990.) [27] The particulars referred to nine uses of the card between the two dates, involving amounts from $7.20 to $159. [28] On 9 August 2017 the Assistant Commissioner decided that the appropriate sanction was that Constable Shepherd should (with immediate effect): Be demoted in rank from Constable pay point 1.5 to Constable pay point 1.3, for a period of 12 months from the date of this decision, after which you are to return to Constable pay point 1.5 and will be eligible to progress as per normal industrial arrangements. The delay and its effect [29] It can be seen from the above that there was a considerable, and in my opinion inordinate, delay in the investigative and disciplinary process in this case. It was a concern for the Assistant Commissioner, and it was largely because of the delay it seems, that the sanction was not more severe. [30] What the Assistant Commissioner said was: To be clear, your dishonest actions, combined with your untruthfulness and failure to responsibility for your actions made me seriously consider your suitability to be employed as a police officer. However, the need to impose the ultimate sanction has been mitigated by a number of factors including the time delay and positive references concerning your work performance since this matter occurred. As such, I intend to impose a sanction which reflects the serious nature of your misconduct but gives you the opportunity to continue to be a police officer and demonstrate that you can be a valuable member of the Service. -- 7 of 19 -- 8 [31] In its submissions the Commission say that the Assistant Commissioner placed too much weight on the delay as a mitigating factor. [32] The delay means that if I decide that the appropriate sanction is dismissal as is pressed by the Commission, this will have happened nearly six years after the misconduct. On the basis that an investigation into this particular matter including all necessary interviews could have been completed within three months, then allowing for some enlargement of that time for various contingencies, it means that if it is appropriate that Constable Shepherd should be dismissed, this would be happening some four years after it should have happened. [33] It is said by the Commission that Constable Shepherd is partly to blame for the delay because in his interviews he suggested that others might have used the card. This meant that those people had to be interviewed, causing delays. [34] However, only a few days after the Ethical Standards Command started the investigation in 2012, Constable Shepherd offered himself for interview. Had he been asked then for his version of events the veracity of what he was saying could have been immediately checked. [35] It is said by the Commission that delay is not a mitigating factor. Reliance is placed on Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490. In that case the misconduct occurred in 2004, the disciplinary hearing was three years later in 2007, the Misconduct Tribunal heard an appeal in 2009, then there were judicial review proceedings and finally QCAT decided the matter in 2010, some six years after the misconduct. The officer asked that the tribunal take into account the impact of the delay upon him – that he had been ineligible for promotion to a higher pay point and had not been allowed to relieve in any position other than general duties – effectively his career had been put on hold. The tribunal held that since dismissal was accepted as the appropriate sanction for the misconduct, the argument was unpersuasive – “An earlier conclusion, resulting in dismissal would have terminated not stalled the officer’s career in the force”.7 [36] To my mind, there is another factor. In many cases it may be fairer to an officer who is facing dismissal for misconduct if the dismissal happens without inordinate delay. This allows the officer to leave the service and to find and develop another career. To delay the dismissal without good reason can have three adverse effects. Firstly it can mean that the officer has the worry and stigma of the disciplinary process over a prolonged period. Secondly, the officer may have “wasted years” in the service which may have been better used to develop a career outside the service. Thirdly there may be tangible losses – as in Gardiner and also in this case, where the officer’s salary pay point remains the same while the investigation continues. 7 Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490, [23]. -- 8 of 19 -- 9 [37] These adverse effects would not apply in every case. For example an officer near retirement might prefer to stay in the service albeit under the cloud of disciplinary proceedings than face an earlier dismissal. In the case before me, Constable Shepherd did suffer all these adverse effects. [38] The result is that a dismissal now would be a substantially more severe sanction for him than if it had occurred four years ago. [39] In Vann v Deputy Commissioner R N McGibbon No. TA4 of 2001 (a decision delivered on 27 February 2002), the misconduct was in 1999 and 2000, the conclusion in the disciplinary proceedings was late in 2001 and the officer was dismissed. Since the report is now difficult to obtain (and I thank counsel for the Commissioner for his efforts to obtain it) I shall cite a large passage from it, where in the Misconduct Tribunal Member R M Bourke said: What is of considerable concern in this matter is that the initial matter of complaint, matter 3, occurred in or about early August 1999 and matter 4 took place between November 1999 and April 2000 while matter 1 occurred in early August 2000 and matter 2 in September 2000. The disciplinary hearing was not finalised until November 2001. Notwithstanding the seriousness of the allegations against the appellant he was not stood down from duty nor was he suspended from duty by the Commissioner pursuant to section 6.1 of the Police Service Administration Act 1990. Given the findings of the Deputy Commissioner that dismissal was the appropriate sanction it is somewhat incongruous that he was allowed to continue in service for in excess of 2 years. In my view it is essential that allegations of misconduct be dealt with as expeditiously as is reasonably possible in fairness to the officer concerned the Queensland Police Service and the public at large. I refer to the comments of Acting Assistant Commissioner Crawford in the matter of Senior Constable Andrew Timms on the 7th of January 1998 where the Acting Commissioner said as follows. “The time taken to resolve the issue in my view is a significant point. I have mentioned on many occasions that a discipline process to be effective must be timely. The stress occasioned to an officer which accompanies an internal investigation can have significant effects not only on that officer but also his or her peers. When the time taken is excessive it reduces the effectiveness of a discipline process and brings it into disrepute. “A comment was made by the residing Magistrate some five months ago seeking explanations as to the reason for the unreasonable delay from the time of the offence to the time the matter was brought before this Court. I note the incident occurred on the 22nd May 1996 therefore a period of some 20 months has elapsed from the time of the Act. It -- 9 of 19 -- 10 would appear as if it took 11 months for the Criminal Justice Commission to investigate this matter and prepare a brief of evidence for perusal by the officer – by the office of the Director of Public Prosecutions. “This in my view is an extremely excessive period. If the subject officer had been a civilian then I would suggest the brief would have been prepared within one month. I certainly take this into account as a mitigating factor when the reason for the unacceptable delay cannot in any way be attributed to the subject member.” With respect I adopt those comments. The delay in determining this matter has been inordinate and the reason for it cannot be visited in any way at all upon the Appellant. Notwithstanding that matters one to four alleged against the appellant, he has been permitted to continue on active duty. He has produced an array of references, some 13 in number, attesting to the manner of discharge of his duties. [40] On that basis but with some reservations having regard to the officer’s lack of candour and his apparent inability to confront the truth, Member Bourke suspended the operation of the officer’s dismissal for a period of 15 months. [41] I shall need to return to the delay issue when considering the correct and preferable sanction in this matter. Strength of the evidence [42] This is not an application to review the decision by the Assistant Commissioner on substantiation. I am therefore bound by the Assistant Commissioner’s formal finding of substantiation. But it is accepted by all parties that when considering the seriousness of the misconduct which was found substantiated, I need to consider that finding in context. In so doing I am free to depart from the views of the Assistant Commissioner as to that context or as to the seriousness of the misconduct. [43] One fact which is not disputed but which is significant, is that all the transactions now alleged, being EFTPOS transactions, involved the card being used personally at the point of sale. [44] The strength of the evidence against Constable Shepherd varies over the nine incidents. One of the strongest is in respect of a transaction on 4 March 2011 when it is said that he used the card to purchase the services of a therapist in Mount Isa for $60. Constable Shepherd’s roster shows him to be in Mount Isa that day.8 The therapist provided a record card showing the treatment given that day. It shows that the treatment was given to “Chris Shepherd” and it gives his mobile telephone number.9 It also refers to 8 These documents are at pages 759 to 764 of the bundle. 9 Admitted in submissions made on his behalf before the Assistant Commissioner, Vol 1 page 23. -- 10 of 19 -- 11 “Police Health” which (as found by the Assistant Commissioner) is a reference to Constable Shepherd’s private health insurer.10 [45] At interview, Constable Shepherd denied ever being to this therapist, but suggested it could have been his partner who attended the therapist instead.11 [46] There was strong circumstantial evidence that Constable Shepherd had carried out four transactions with the card in August 2011. They were between Thursday 25 August 2001 and Saturday 27 August 2011. The first on 25 August 2011 was for $86.90 at Thomas Cook Clothing Store at the DFO at Brisbane Airport. The following day on 26 August 2011 at 8.29am the card was used to purchase an item at a Camping Plus store on the Gold Coast for $159. A little later that day at 8.45am the card was used to purchase a tarpaulin at a Supercheap Auto store on the Gold Coast for $54.57. The following day on 27 August 2011 the card was used to purchase one or more items of clothing at the Gympie Muster12 for $59. Constable Shepherd was on recreational leave the whole of that week as can be seen from his roster,13 and he confirmed in the second interview that he drove from Mount Isa to the Gold Coast to stay with his parents and then returned to go to the Gympie muster where he was from 26 August to 28 August 2011.14 [47] He could therefore have carried out the first transaction either on the way down to the Gold Coast or whilst in that area. His parents lived about 2½ kilometres away from the stores where the second and third transactions occurred so he was living close to those transactions at the time. And he would have been in Gympie for the fourth transaction. [48] However, Constable Shepherd denied using the card on any of these occasions saying that he believed he had left it in Mount Isa with a detective senior sergeant during his time away.15 [49] There was also strong circumstantial evidence that Constable Shepherd had carried out two transactions with the card in October 2011. The first was on 28 October 2011 for a purchase at Coles in Tweed Heads for $7.20 and the second was on 31 October 2011 for a purchase at a Yum Cha restaurant on the Gold Coast $57.40. [50] As the Assistant Commissioner recited, there was evidence to place Constable Shepherd in Tweed Heads on 28 October 2011 so he could have carried out the transaction at Coles.16 And in his submissions to the Assistant Commissioner, Constable Shepherd confirmed that he was 10 Findings and Reasons, Vol 1 page 75. 11 Interview of 21 January 2015 pages 161 to 166. This was denied by his partner. 12 This is an annual country music festival in Gympie. 13 Page 793. 14 Pages 195 to 204. 15 Page 200. 16 Constable Shepherd had six days off at that time, and attended a diving course at Tweed Heads or in close proximity on 28 October 2011. -- 11 of 19 -- 12 staying with his mother, which was only 10 minutes’ drive away from the Yum Cha restaurant, when the transaction on 31 October 2011 occurred.17 [51] However, Constable Shepherd denied using the card on either of these occasions saying that he believed he had left it in Mount Isa with a detective senior sergeant during his time away.18 [52] The card was used on 30 April 2012 to pay for items at Mount Isa Veterinary Surgery for $150.45.19 The veterinary records for this transaction clearly show purchases for Constable Shepherd’s dog and although the name on the account was that of his wife, he had been separated from her for some months by this time, and there was evidence that she was working on the Gold Coast that day. Constable Shepherd’s roster showed that he was off work that day.20 [53] There was one transaction which was found by the Assistant Commissioner to be part of the misconduct, which Constable Shepherd admitted, but claimed that it was an authorised use of the card.21 [54] The Assistant Commissioner summarised his view on the case as presented by Constable Shepherd as follows: What is clearly evident from the material before me is that you not only had the means but the opportunity to undertake the transactions. The investigation identified that you were in possession of the Mt Isa recreational Club eftpos card, you were geographically present at each location and to suggest that an unknown identity followed you around the State on each and every occasion of the anomalies identified in the Mt Isa recreational Club statement is simply preposterous. [55] I agree with this summary. In my view, the evidence is overwhelming that Constable Shepherd used the card on the occasions that were alleged against him for his own personal benefit. Considerations about the appropriate sanction [56] I remind myself of the purpose of the disciplinary proceedings as set out in section 3 of the Police Service (Discipline) Regulation 1990 (Qld):22 3 Object The object of these regulations is to— 17 Section A, page 33 of the bundle. 18 Page 212. 19 The letter calling Constable Shepherd to the disciplinary hearing incorrectly stated the date of this transaction as 1 May 2012. 20 Page 831. 21 This was the use of the card said by Constable Shepherd to be for the purchase of meals for fellow officers on 30 March 2012 on Mornington Island for $129.50. 22 With close similarities to the wording in section 219A of the Crime and Corruption Act 2001 (Qld). -- 12 of 19 -- 13 (a) provide for a system of guiding, correcting, chastising and disciplining subordinate officers; and (b) ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as— (i) to protect the public; and (ii) to uphold ethical standards within the Queensland Police Service; and (iii) to promote and maintain public confidence in the Queensland Police Service. [57] The Commission presses for dismissal as the only sanction which should be considered in this matter on review because Constable Shepherd has demonstrated his unfitness to be a police officer. It relies on Re: Bowen (1996) 2 Qd R 8 where Demack J was dealing with an appeal from the Misconduct Tribunal disciplining an inspector for disclosing confidential information to a member of the police service about a complaint, falsely denying to an officer of the Criminal Justice Commission that he had done so, and lying on oath in a witness statement about it. [58] His Honour said: When the appellant lied on 3 June 1993, he did something which erodes public confidence in the police service, and which also affects the trust other members of the police service have in each other. He lied to hide his own misdoing. When he was false to his oath on 10 August 1993, he put himself in the situation where his testimony was forever open to challenge. This, in a significant sense, denied the public the use of his services in the active detection of crime. It also erodes public confidence and adds weight to the arguments of those who seek to curtail the powers of the police service. It may destroy the trust other members of the police service should have in him. It appears from the detailed reasons which Mr Gaffy QC gave that he seriously considered the question of dismissing the appellant from the police service. Because of his excellent record and because of the references, he reduced the appellant in rank. It was argued that this involved a very significant financial penalty, so that the appellant’s 30 years of meritorious service was not adequately recognised. I am unable to accept that proposition. It seems to me that the appellant’s 30 years of meritorious service have kept him in the police service. Without those years of service, his three acts of official misconduct could have justified his dismissal. [59] The Commission points out that because of the matters now known publicly about Constable Shepherd, like the inspector in Re: Bowen, his evidence will be open to challenge by defence lawyers in the criminal courts in which he would need to give evidence if he is to be an effective police officer. -- 13 of 19 -- 14 [60] I believe there is a lot of force in this argument. It means that Constable Shepherd’s ability to give evidence as a witness in the courts which can be relied on as truthful is undermined. This could have serious repercussions in ways which are difficult to foresee. It means that consideration would need to be given to his placement to avoid the risk of such repercussions. Potentially therefore, it reduces his value to the police service. [61] I was referred to Kennedy v Deputy Commissioner Stewart [2012] QCAT 66 and Kennedy v Deputy Commissioner Stewart [2012] QCATA 258 where Sergeant Kennedy over a period of seven months dishonestly possessed a refrigerator belonging to a club, lied to his superiors during the disciplinary process and took every conceivable point in the tribunal proceedings in an attempt to avoid the disciplinary sanction. He had a good service history but had come to “adverse notice” on four occasions. He also demonstrated a lack of remorse. Although the Deputy Commissioner had dismissed Sergeant Kennedy, the tribunal decided he should be suspended instead. An appeal to the Appeal Tribunal was unsuccessful. [62] At the time of the events for which Sergeant Kennedy was disciplined he was living with Sergeant Gee who faced disciplinary action based on the same events. Sergeant Gee engaged in the same misconduct as in Kennedy, but was also found to have engaged in multiple instances of dishonesty: misappropriating $1,005 and $997.80, knowingly providing false information on a job application and sexually harassing an employee under her supervision. This was described as a “wide range of misconduct over an extended period” and there was a history of “many previous incidents of misconduct”. Sergeant Gee was dismissed.23 [63] It is said on Constable Shepherd’s behalf that his case is less serious than Kennedy and Sergeant Kennedy was suspended and not dismissed, therefore for consistency Constable Shepherd should not be dismissed. Although in Kennedy the tribunal considered the sanction of dismissal it decided on suspension instead. The tribunal did not explain however, why that sanction was preferred. The key to the decision is probably to be found in the finding on substantiation where the tribunal explained that there was no allegation that there was any intention to steal the refrigerator, describing it more as “temporary misappropriation, unauthorised use, illegal use, trespass to goods or plain commandeering for personal use”.24 It was Sergeant Gee who was the “prime mover” in the misconduct and that Sergeant Kennedy was a “secondary actor in a highly improper and unethical series of acts”. Seemingly on that basis, the tribunal decided that the dishonesty was “not at the most serious level” albeit over a substantial period.25 [64] In the circumstances, I disagree with the submission that Constable Shepherd’s case is less serious than Kennedy. 23 Gee v Deputy Commissioner Stewart [2012] QCAT 33. 24 Kennedy v Deputy Commissioner Stewart [2011] QCAT 667, [61]. 25 Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66, [15], [19]. -- 14 of 19 -- 15 [65] I was also referred to Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169 where an officer achieved promotion within the service by providing false and misleading statements about his service history and police work. He provided false information in 46 job applications over a 3½ year period. He was dismissed, a decision confirmed on review despite a diagnosed mental health condition which reduced his culpability. [66] I was also referred to Wadham v Deputy Commissioner Ian Stewart [2010] QCAT 578 in which the officer misappropriated $1,200 from a social fund in three tranches, and accessed the computer system giving the identity of a colleague and completed online training on his colleague’s behalf. It was accepted on the officer’s behalf that the sanction of dismissal was appropriate if the misappropriation of funds was substantiated. [67] The Commission submits that an aggravating factor in Constable Shepherd’s case is that the money he misappropriated was held for the benefit of members of the police service, and since he was entrusted with the safe keeping of those funds, this was an “egregious breach of trust”. Further, it was suggested that his own submissions “highlighted a profound lack of remorse, and an ongoing unwillingness to confront the truth of the matter”.26 It is said that there were two areas of dishonesty – the misappropriation of funds from the club and the dishonesty in the disciplinary interviews – by reason of his denials and avoidance tactics. It is said that this was not mere forgetfulness – where he was saying that he may have forgotten the transactions; instead he was denying them altogether. In my view there is force in these submissions. [68] The Commission says that Constable Shepherd’s attempt to suggest that others may have been responsible for the transactions is an aggravating factor.27 On Constable Shepherd’s behalf however, it is said that overall his position was that he could not explain the transactions.28 In my view however, his responses were a product of his own denial that he had used the card when he should have admitted that he had used it. The inevitable response from the investigators was to ask “who used it then”, resulting in various theories being put forward by Constable Shepherd. [69] I do not find that any further culpability is demonstrated from what was said in the interviews than arose in the way described above. Therefore, I shall limit my consideration of this particular matter to the substantiated findings appearing in the particulars found substantiated by the Assistant Commissioner: During both interviews you attempted to deflect responsibility for the dishonest use of the debit card to other persons. You provided information that many people had access to the debit card as it was not a controlled environment. You also stated that a friend of (another officer) could have used the card number to sabotage you. Further 26 Paragraph 36 of the Commission’s submissions. 27 The incidents of this are usefully set out in paragraphs 19 to 24 and 34 of the Commission’s submissions. 28 Paragraph 10(e) of submissions made on his behalf. -- 15 of 19 -- 16 you stated that (another officer) could have used the card to conduct the transactions. [70] On Constable Shepherd’s behalf, the mitigating factors are said to be that the transactions occurred over a limited time and were relatively small in amount, they occurred when club accounting practices were very loose, at a time when Constable Shepherd was doing much unpaid work for the club and was himself undergoing emotional turmoil arising from a relationship breakdown. It is said that the use of the card was when off-duty, not motivated by need or greed, and only provided a fleeting advantage to him – they appeared to be a result of foolishness. [71] As for Constable Shepherd’s service as a police officer, he has now served some 10 years with no other findings of misconduct and was recognised as having worked hard for the club. There were a number of excellent references from colleagues and supervisors.29 [72] I take the above submissions into account. [73] It was also pointed out on Constable Shepherd’s behalf and supported by affidavit evidence that he has already paid a price for what happened, including emotional distress, uncertainty and embarrassment. While the disciplinary investigation was underway his attempts to transfer closer to his parents were impeded. Financially he has suffered considerably. He has been unable to progress to Senior Constable while the disciplinary investigation was underway and he has calculated that he has lost some $66,000 in salary, overtime and allowances, and $12,000 in superannuation (all figures before tax) because of this. I need to take this financial loss into account, whilst bearing in mind that it is not a consequence of any disciplinary sanction but instead is a consequence of policy in the police service once an investigation is underway. I accept the Commission’s submission about this loss, which is that had Constable Shepherd admitted to using the card on the relevant occasions as he should have done, this loss would have been much less. [74] I expressed the view earlier in these reasons that a dismissal now would be a substantially more severe sanction for Constable Shepherd than if it had occurred four years ago. It seems to me that when considering sanction I may have regard to this because the correct sanction is what best fulfils the statutory aims having regard to the nature and seriousness of the misconduct, whilst still being fair in all the circumstances to the officer concerned. Although the introduction of fairness as a consideration when deciding sanction is not something stated directly in the legislation, that it may be considered in an appropriate case appears from the provision dealing with new evidence. Section 219H(2) permits the tribunal to receive new evidence (not before the original decision maker) if “in the 29 Pages 58 to 64. -- 16 of 19 -- 17 special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.” [75] This provision would be pointless if fairness to the officer concerned was not a permissible factor when considering sanction. [76] It is said that Constable Shepherd should be given credit for deciding not to contest the substantiation decision before the tribunal. I do not think I can give him much credit for this bearing in mind the overwhelming evidence that he used the card on the occasions alleged, to his personal benefit. Any such challenge would have been hopeless. [77] It is also submitted that Constable Shepherd has demonstrated a level of insight and remorse for what happened, but this is difficult to accept in the circumstances. On the contrary, it is his failure to do so which has largely caused me to reach the view that I have in this matter. [78] For Constable Shepherd to accept his dishonesty, have genuine regret and offer himself for rehabilitation would require a high degree of emotional strength. He could however, have done this in 2012 when first spoken to by the Senior Sergeant who was then investigating the matter. He had formal opportunities to do so at the interviews on 25 February 2014 and 21 January 2015. Another opportunity was in his submissions lodged on 20 May 2016 after receiving the direction to attend the disciplinary hearing on 5 February 2016, or at any time before the on the papers hearing before the Assistant Commissioner. [79] Finally, since he was given leave by the tribunal to adduce new evidence (not before the Assistant Commissioner) he could have done so in his affidavit. Instead, he said:30 When I received the Assistant Commissioner’s decision, I did not agree with the findings made against me but I resolved to accept it as the ‘umpire’s decision’ and to move on. [80] I think that the importance that I may ascribe to his failure to admit the use of the card on the relevant occasions when considering sanction is informed by the strength of the evidence against him. Bearing in mind that findings of misconduct are made on the balance of probabilities, albeit requiring cogent evidence, in many cases there could be a lingering doubt about whether the finding on substantiation is indeed correct. In disciplinary proceedings of this sort, such lingering doubt is not enough to find the conduct not proved as it would be in a criminal case. Where there is such doubt the lack of acceptance of dishonesty, genuine regret and offer for rehabilitation will carry less weight than in cases where there is no such doubt. [81] Here the evidence against Constable Shepherd was overwhelming. I have no doubt at all that he used the card when he is alleged to have done so, and that he used it deliberately in the knowledge that he was using funds 30 Paragraph 21 of his affidavit of 24 November 2017. -- 17 of 19 -- 18 for his own benefit to which he had been entrusted by the members of the club. In those circumstances I am absolutely confident that Constable Shepherd’s failure to resile from his stated position that he did not do these things demonstrates continued dishonesty and is a significant factor when considering sanction. Conclusion [82] The central issue here when considering sanction is Constable Shepherd’s denial that he had used the card on the eight relevant occasions, and that he had privately benefited on all nine occasions, which denial continued right up to the Assistant Commissioner’s hearing on the papers, and has not been departed from in the tribunal proceedings. Since I am absolutely confident that he did do these things, there is only one conclusion that I can reach. That is that Constable Shepherd was dishonest in these denials. [83] Added to the fact of the dishonest transactions in 2011 and 2012 this raises the seriousness of the misconduct significantly and to a point where I must consider whether dismissal is the correct sanction. [84] There are of course different levels of seriousness in cases involving dishonesty and it would be wrong to say that every finding of dishonesty by a police officer warrants or requires dismissal. There is a distinction to be made between those cases where the dishonesty is a breach of trust, intentional, continuous and frequent, and cases where the dishonesty arises from a desire to assist or protect someone else, or to satisfy a need, out of recklessness or is spontaneous or isolated. This case is in the former, rather than the latter category of seriousness. [85] The gravity of the misconduct is also informed by the officer’s reaction to the dishonesty being discovered. Denial and diversion tactics can be contrasted with acceptance of dishonesty, genuine regret and a desire to demonstrate rehabilitation. Again, this case is in the former category. [86] In my opinion the level of dishonesty here results in only one conclusion – that Constable Shepherd is not fit to remain in the police service. This is not only because of this dishonest conduct. It is also because his effectiveness in the police service is so seriously undermined by what happened, as described in Re: Bowen. [87] In the circumstances dismissal is inevitable. Suspension from office for a while instead would only be appropriate if, after the period of suspension, the officer is likely to be fit to be an officer in the police service. There is nothing to indicate that that would be the case. Suspension of the dismissal would only be appropriate if it were possible to say that he was currently fit to remain in the police service. [88] Whilst I have serious concerns about the fairness of a dismissal because of the delay, I cannot see that the delay changes the fact that Constable Shepherd is unfit to serve as a police officer and in those circumstances -- 18 of 19 -- 19 there is no other sanction available, bearing in mind the purpose of disciplinary proceedings as set out above. [89] I do propose however to structure the order of the Tribunal in such a way as to try to reduce the unfairness to Constable Shepherd to an extent which seems appropriate. I shall set aside the Assistant Commissioner’s decision to reduce Constable Shepherd’s pay point. I shall order that Constable Shepherd is dismissed from the police service but I am going to make that order effective as from a future date. I may do this under section 127 of the QCAT Act. This may give him some additional time in which to prepare for and organise a change in career. I shall direct that the dismissal shall take effect at the end of 31 August 2018. It will be entirely up to the police service whether Constable Shepherd is required to attend for service until that date and if so, the role which he will be given over that time. -- 19 of 19 --