Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96

CITATION: Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96 PARTIES: Crime and Corruption Commission (Applicant) v Acting Deputy Commissioner Barron (First Respondent) Scott Miers (Second Respondent) APPLICATION NUMBER: OCR139-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 19 December 2014 HEARD AT: Brisbane DECISION OF: Acting Senior Member Howard DELIVERED ON: 27 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Acting Deputy Commissioner Barron is set aside and it is substituted with the decision set out in order 2. 2. (i) Scott Miers is reduced one pay-point for six months from 4 March 2015; (ii) From 4 September 2015, Scott Miers shall be returned to his current pay- point as at the date of these orders, and thereafter shall be eligible to progress subject to the usual industrial requirements. (iii)(a) Scott Miers must participate in 80 hours community service at a Police Citizens Youth Club within the 12 months from 16 June 2014; and (iii)(b) Community Service performed by Scott Miers since the decision of Acting Deputy Commissioner Barron on 16 June 2014 is to be counted in satisfaction of order -- 1 of 20 -- 2 2(iii)(a). 3. The parties may make submissions within 7 days in respect of the proposed variations to the non-publication order made on 22 July 2014. CATCHWORDS: POLICE DISCIPLINE – ADMINISTRATIVE REVIEW Crime and Corruption Commission 2001 (Qld), s 219A, s 219G, s 219H, s 219L Police Service Administration Act 1990 (Qld), s 7 Police Service (Discipline) Regulations 1990 (Qld), reg 3, reg 5, reg 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20 Aldrich v Ross [2001] 2 Qd R 235 Chapman v Richards & Anor [2008] QSC 120 Crime and Misconduct Commission v Deputy Commissioner Barnett & Thomas [2013] QCAT 365 Crime & Misconduct Commission v McLennan & Ors [2008] QSC 23 Flegg v Crime & Misconduct Commission & Anor [2014] QCA 42 Hardcastle v Commissioner of Police (1984) 53 ALR 593 Lee v Crime & Corruption Commission [2104] QCATA 326 Malcolm v Assistant Commissioner Pointing [2010] QCAT 505 Police Service Board v Morris (1985) 156 CLR 397 Police v O’Neill, O’Neill and Robinson (unreported), 26 May 2014 Queensland Police Service v Compton (No 2) [2011] QCATA 246 Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590 REPRESENTATIVES: APPLICANT: Crime and Corruption Commission represented by Mr A H Sinclair of Counsel instructed by the Deputy Official Solicitor for the Crime and Corruption Commission -- 2 of 20 -- 3 RESPONDENT: Acting Deputy Commissioner Peter Barron represented by Mr C Capper of the Public Safety Business Agency Scott Miers represented by Mr T Schmidt of Counsel instructed by the Queensland Police Union Legal Group REASONS FOR DECISION: [1] Mr Scott Miers is a Constable of Police. He was born in 1968 and inducted into the Queensland Police Service in November 2009. Acting Deputy Commissioner Peter Barron (‘the decision-maker’) found a matter of misconduct substantiated against Mr Miers, namely: Matter One That between 20 December 2011 and 15 January 2013 at the Gold Coast your conduct was improper in that you: (a) without an official purpose related to the performance of your duties accessed and released confidential Queensland Police Service information relating to AZC; and (b) without an official purpose related to the performance of your duties accessed and released confidential Queensland Police Service information relating to JXJ. [2] Mr Miers accepted the conduct as particularised (see later) and that it amounted to misconduct. The decision-maker accepted the admissions, but was also satisfied that there was sufficient evidence to substantiate the matter. [3] By way of sanction, the decision-maker ordered that Mr Miers be reduced one pay-point from Constable 1.3 to 1.2 from 16 June 2014. He further ordered that the pay-point reduction be suspended for a period of 12 months on condition that Mr Miers complete 80 hours community service within 12 months from 16 June 2014 and not commit any further misconduct. He specified that the order was made under reg 5 of the Police Service (Discipline) Regulations 1990 (Qld), and that accordingly, the sanction would not be expunged but would remain on Mr Miers’ service history. [4] Mr Miers has completed the community service requirements. [5] The Crime and Corruption Commission (‘CCC’) has applied to the Tribunal for review of the decision on sanction only. In particular, it argues that the sanction is inadequate having regard to the seriousness of the conduct, the purposes of disciplinary proceedings and comparable decisions. In essence, the CCC submits that the pay-point reduction should not have been suspended. Mr Miers argues that the decision should be confirmed. [6] Sections 219G and 219H of the Crime and Corruption Act 2001 (Qld) (‘CCC Act’) and sections 17 – 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provide that the -- 3 of 20 -- 4 Tribunal’s function on the review application is to make the correct and preferable decision on the evidence which was before the decision-maker. If the Tribunal has the same view of the facts and inferences, it is appropriate to give considerable respect to the views of the decision- maker as to the disciplinary sanction.1 However, the Tribunal must reach its own decision on the review. It brings the public perspective to bear on the disciplinary process.2 [7] The purpose of police disciplinary proceedings in Queensland encompasses deterrence, protection of the public,3 maintenance of proper standards4 and promoting and maintaining public confidence in the police service.5 The sanction imposed must signify the disapproval with which the conduct is viewed.6 It plays a role in specific (in respect of the officer concerned) and general (in respect of other officers) deterrence.7 [8] As the High Court has said, the effectiveness of police in protecting the public relies upon public confidence in the integrity of its members, and internal discipline is the primary means of ensuring individuals do not jeopardise public confidence.8 [9] For reasons to be explained, I have reached the conclusion that the sanction imposed by the decision-maker is inadequate and that the correct and preferable decision is for Mr Miers to complete the community service ordered and be reduced by one pay-point for 6 months. Thereafter he may return to his pay-point at the date of these orders and progress in accordance with usual industrial requirements. I make the observation that if Mr Miers had not already performed the community service obligations pay-point reduction would not have been limited to 6 months. The conduct which is the subject of the disciplinary charges [10] In respect of matter 1(a), the particulars are as follows:  you accessed QPRIME for personal reasons as AZC is a friend of yours;  on 21 December 2011 you accessed QPRIME identifying AZC was nominated as a suspect for a fraud reported to police on 3 October 2011 (Occurrence Report QP1101016832);  on 15 February 2012 you accessed QPRIME to view Occurrence Report QP1101016832; 1 Aldrich v Ross [2001] 2 Qd R 235, 257 – 258 per Thomas J. 2 Ibid. See also, Tolsher v Stewart (No 2) [2013] QCAT 590, [15]. 3 Aldrich v Ross [2001] 2 Qd R 235, 247; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3. 4 Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3. 5 Aldrich v Ross [2001] 2 Qd R 235, 247. 6 Police Service Board v Morris (1985) 156 CLR 397; Queensland Police Service v Compton (No 2) [2011] QCATA 246, [25]. 7 Ibid. 8 Police Service Board v Morris (1985) 156 CLR 397, 412. -- 4 of 20 -- 5  on 7 and 8 August 2012 you access QPRIME performing a name check on AZC and viewing Occurrence Report QP1101016832;  on 7 or 8 August 2012 you contacted AZC advising him he was not wanted on warrants but wanted for questioning for a fraud matter; and  on 15 November 2012 you accessed QPRIME to view Occurrence Report QP1101016832. [11] The fraud investigation referred to was undertaken by Detective Senior Constable Neilson. During the investigation, Detective Neilson received a telephone call from Mr Miers. Mr Miers told him he was an associate of the suspect, AZC. Mr Miers asked him what was ‘going on with the file’.9 [12] Detective Senior Constable Neilson said he had the impression that Mr Miers did not understand that what he was doing was wrong. He did not believe Mr Miers had the ‘smarts to, to identify that what he was doing was, was really wrong and he sort of just came across like he made a bit of a dumb, dumb decision’.10 He could not recall whether he asked Mr Miers why he was accessing the records, but says that he distinctly recalls warning him about getting involved.11 He was unable to say whether he told Mr Miers not to access the police records. He later seemed to say that he thought that would be the first thing he would say, as well as not to call him about this, and get the suspect to call him.12 He said he recalled distinctly warning Mr Miers about ‘leaving it alone’ and ‘not having any involvement with it’.13 [13] In respect of matter 1(b), the particulars are more extensive as follows:  you accessed QPRIME for personal reasons as JXJ is an acquaintance of yours;  on 28 October 2012 you accessed QPRIME to name check a known Criminal Motorcycle Gang member where you confirmed this person was an associate of JXJ;  on 28 October 2012 you accessed QPRIME and perused JXJ QPRIME person record including three criminal investigations for which JXJ was a suspect namely assault complaints (Occurrence Report QP1201072645 [two victims] and Occurrence Report QP1201076224) and an extortion complaint (Occurrence Report QP100128402);  on 7 November 2012 you accessed QPRIME and perused the assault complaints of LYL and CWF (Occurrence Report QP1201072645);  on an unknown date between 28 October 2012 and 12 November 2012 you advised JXJ that he was wanted for questioning regarding three criminal complaints (Occurrence Reports QP1201072645, QP1201076224 and QP1100128402); 9 Section 21(2) Documents, 869. 10 Ibid 871. 11 Ibid 872. 12 Ibid 873. 13 Ibid. -- 5 of 20 -- 6  at 08:10 am, 1:30 pm, 3:13 pm and 3:20 pm on 13 November 2012 you accessed QPRIME to examine the detail of the complaints regarding JXJ, for which he was still nominated as a suspect;  on 13 November 2012 you called JXJ mobile from Southport police station to discuss the criminal complaints; and  on 14 January 2013 you accessed QPRIME regarding the two assault complaints (Occurrence Reports QP1201072645 and QP1201076224) conducting a license check on victim, BVA. [14] Mr Miers said that the reason for his accesses in respect of JXJ related to wanting to ascertain whether he should leave the gym he was attending, at which JXJ was the boxing and self-defence coach with whom he trained, because of a concern that JXJ may be associating with outlaw motorcycle gang (OMG) members. His initial accessing of information confirmed this suspicion, and made him aware that JXJ was wanted for questioning on several complaints. [15] He admits telling JXJ to square these away. JXJ said he had dealt with them. Mr Miers says he later followed up, accessing QPRIME information again, to see whether he had done so. He says he again contacted JXJ to advise that they weren’t cleared up and were more serious than JXJ appreciated. He gave JXJ details from QPRIME about the assault matters, he says because he wanted JXJ to go to the Police station and clear it up. Subsequently, JXJ then approached a complainant and told him that he had a mate at QPS and knew details of the complaint. [16] Although Mr Miers referred to perhaps passing on information to ‘Intel’,14 he did not make a report of these matters to Intel or make a record. The decision-maker’s views about sanction [17] The decision-maker noted Mr Miers’ submissions that his motivation in providing confidential information to the two suspects was to provide advice or achieve outcomes towards investigations being finalised. He accepted that Mr Miers was not motivated by any sinister or improper purpose. He further said the motivation did not justify or excuse the conduct. [18] The decision-maker noted in particular that AZC was a friend of Mr Miers, and that Mr Miers was godfather to his daughter. He noted that these should have been ‘red flags’, in terms of potential conflict of interest. He further noted that JXJ was an associate of a criminal motorcycle gang members, and that after confirming his suspicion in that regard, Mr Miers nevertheless went on to provide confidential information to him on more than one occasion. The decision-maker considered these actions demonstrated very poor judgment, and that it would have been most appropriate for Mr Miers to submit an intelligence report through QPRIME and cease all ties with JXJ and the gymnasium concerned. 14 Ibid 166. -- 6 of 20 -- 7 [19] As is the usual case, there was no oral evidence taken before the decision-maker, although he had a significant volume of material before him. Detective Inspector Swan had prepared investigation reports into both parts (a)15 and (b)16 of the disciplinary charge. The decision-maker had these reports. In respect of part (a), he (Swan) considered, Mr Miers lacked proper judgment and was ‘perhaps ignorant and naïve in his actions and was not deliberately trying to thwart a current criminal investigation.’17 In respect of part (b), he (Swan) considered: The subject member presented as an honest, but somewhat naïve, junior officer who lacked judgement and had no idea of the consequences of his actions. It was clear from his interview he honestly believed he was doing the right thing in this instance and did not release the information to JXJ for personal gain or benefit.18 [20] The decision-maker appears to have accepted Swan’s assessment of Mr Miers in his reasons for decision about sanction.19 [21] In respect of the seriousness of the conduct, the decision-maker referred to recent Magistrates Court’s matters involving two former QPS detectives who were sentenced for offences under the Criminal Code relating to accessing and releasing of Queensland Police Service information. The penalty for one former officer was a six month suspended prison term and for the other a probation order for a period of two and a half years. These sentences were imposed for unauthorised access and release of information obtained from the QPRIME database. He notes that Magistrate Cull observed: Ultimately, this conduct can be described as the thin end of the wedge, or bending of the rules, but its seriousness cannot be understated, because if police officers can justify any bending of the rules to achieve outcomes then public confidence in the system is lost.20 [22] The decision-maker observed that the investigations into the particular matters about which Mr Miers accessed and disclosed information unfolded ‘with success, although it appears to be more by good luck than good measure’.21 Further, he observed JXJ comments to the victim whose details Mr Miers had provided him with, demonstrated how easily a suspect could turn information around irrespective of the motivation of a naive provider of that information. He continued ‘In fact, you should take this back even one step further and recognise when it is not even your duty to provide any such information in the first place’.22 15 Ibid Part B, 796 – 806. 16 Ibid Part B, 1 – 19. 17 Ibid Part B, 803. 18 Ibid Part B, 12 at [4.37]. 19 Ibid Part A, 41. 20 Police v O’Neill, O’Neill and Robinson (unreported), 26 May 2014, Magistrate Cull MAG134161-13. 21 Section 21(2) Documents, Part A, 41. 22 Ibid. -- 7 of 20 -- 8 [23] He observed that the sanction needs to signify disapproval of the conduct and to deter Mr Miers and other persons from similar misconduct. He imposed a reduction of one pay-point, he says, in light of the seriousness of the conduct and the surrounding circumstances. Then, he says, following this decision, that he has given consideration to suspension, referring to previous decisions which suggest that suspension does not necessarily impact negatively on deterrence, and the reputation and efficiency of the Police Service. He accepted the negative impact which immediate financial consequences would have on Mr Miers. He decided to suspend the sanction on the conditions of community service and no further acts of misconduct in the terms discussed earlier. The CCC Act, the Police Service Administration Act 1990, the Police Service (Discipline) Regulations 1990 and Disciplinary Proceedings (Police Officers) Policy 2013/54 [24] Section 7.4(3) of the Police Service Administration Act 1990 (Qld) provides for the range of disciplinary action which may be taken.23 It is cast in broad terms: Without limiting the range of disciplines that may be imposed…. by way of disciplinary action, such disciplines may consist of the following— (a) dismissal; (b) demotion in rank; ……… (d) reduction in an officer’s level of salary; ……….. [25] Section 7.4(3) contains no specific provision for suspension of sanction. [26] Under regulation 5 of the Police Service (Discipline) Regulations 1990, the commissioner or a deputy commissioner may order that an officer be disciplined in a manner that appears to the commissioner or deputy commissioner to be warranted. Under regulation 12, a disciplinary sanction may be suspended subject to the officer being sanctioned agreeing to perform community service or undergo voluntary counselling or treatment. If the officer then successfully completes the community service or counselling, the sanction is rescinded and taken as never imposed.24 [27] There are obiter comments of the Supreme Court of Queensland and the QCAT Appeals Tribunal which take apparently different views about whether regulation 5 is subject to regulation 12.25 In Mr Miers’ case, the decision-maker specifically said that he decided to impose the sanction 23 Police Service Administration Act 1990 (Qld) s 7.4(3). 24 Reg 12(2). 25 Crime & Misconduct Commission v McLennan & Ors [2008] QSC 23, [40] – [44] obiter comments per Daubney J suggests that reg 5 is not subject to reg 12; cf Lee v Crime & Corruption Commission [2104] QCATA 326, [91] – [93] obiter comments of Hon JB Thomas AM QC, Judicial Member suggests that he considers it likely is. -- 8 of 20 -- 9 under regulation 5 and that it will remain on Mr Miers’ record, apparently treating regulation 5 as not subject to regulation 12. [28] Policy 2013/54 Disciplinary Proceedings (Police Officers) Policy (‘the Policy’), in section 5.3 refers to regulation 12. It states that the provisions of regulation 12 should only be ‘resorted to’ in appropriate cases where it can be justified and that consequently, sanctions imposed will only be suspended in exceptional circumstances. [29] The Full Court however recently held that the power to suspend does not require that exceptional circumstances be demonstrated.26 It is not apparent whether the Full Court was aware of the Policy. That said, as the Tribunal recently observed in a merits review proceeding (in accordance with well-established principles), although policy was not binding on it, there would need to be cogent reason to depart from it.27 [30] The CCC submits that the Policy should be applied here unless there is good reason to depart from it. Mr Miers relies on the Full Court decision in submitting that exceptional circumstances are not required in order to suspend sanction as policy can not override the law. [31] Although the Tribunal stands in the shoes of the decision-maker in conducting a review, specific power is provided in the CCC Act for the Tribunal to suspend a sanction if it considers it appropriate in the circumstances.28 If satisfied that a suspension is appropriate, the Tribunal is entitled to use the power in the CCC Act rather than regulation 5 and/or regulation 12. In any event, I do not consider suspension is appropriate. In the circumstances, I do not need to consider these issues raised about the regulations and the Policy further. [32] An issue was also raised about whether two sanctions can be imposed for each separate limb of the one charge (in this case, a separate sanction for matter 1(a) and another sanction for matter 1(b). The CCC makes a submission to the effect that the community service already performed by Mr Miers count against matter 1(a). Mr Miers submits that the CCC seeks two sanctions for one matter. He argues that two sanctions cannot be imposed for one disciplinary charge and that the Tribunal had found had found such an approach to be improper, relying on Tolsher v Commissioner of Police Ian Stewart (No 2).29 The CCC says it does not seek two sanctions; that the Tribunal had not found multiple sanctions improper; and also argues that in any event, in Tolsher, both episodes of misconduct in the one charge preferred in that case occurred on the one day. [33] Section 7.4(3) of the Police Service Administration Act 1990 does not limit the range of disciplines which may be imposed (and which may therefore, 26 Flegg v Crime & Misconduct Commission & Anor [2014] QCA 42, [26]. 27 Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590. 28 CCC Act s 219L. 29 Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590 especially at [16] – [22]. -- 9 of 20 -- 10 include community service), and provides that such disciplines may consist of dismissal, demotion, reprimand, reduction in salary level. There is no ‘and’ or ‘or’ between the possibilities listed. As a matter of construction, I conclude that any of those disciplines or any combination of them or such other disciplines or combination of them as may be imposed by the decision-maker are open under the section. [34] In Tolsher, the Commissioner had specified a reduction in salary for matter 1(a) and a further reduction in salary and suspension for matter 1(b) which he considered more serious. The Tribunal applied a policy which was current at that time, and which set out a format for framing a disciplinary matter and stated that ‘no matter how many of the particulars and allegations are found substantiated only 1 sanction may be imposed’. Noting that the policy was not binding on it, the Tribunal was not convinced of any cogent reason to depart from it. Accordingly, it set aside the decision imposing the sanctions. In my view, it did not find multiple sanctions improper, it only found them contrary to the policy, which it saw no reason to depart from in the particular circumstances of the case. [35] The policy which was referred to in Tolsher is not the relevant Policy here, although the version before me contains the same statement regarding multiple sanctions for one charge.30 I am satisfied that for reasons of consistency the Policy should be applied unless there is cogent reason to depart from it. The Policy refers to imposing one sanction for each charge. It is not contrary to the Policy to impose multiple components in a single sanction in an appropriate case, which I ultimately do here in order to achieve the correct and preferable decision. I am not satisfied that there is a cogent basis to depart from the Policy in this proceeding. [36] If I am wrong and it is contrary to the Policy to impose multiple components in one sanction, if it was necessary to do so, I would find that there are cogent reasons to depart from the Policy. Given the events which have transpired subsequent to the imposition of sanction by the decision-maker (namely, that Mr Miers has completed the community service), I would find it is necessary to depart from the Policy in order to achieve the correct and preferable decision about sanction in the proceeding. Seriousness of the conduct [37] The CCC submits that the conduct engaged in by Mr Miers has the potential for prosecution in the criminal jurisdiction. It points to the potential adverse consequences of the conduct relating to the outcome of the investigations. The CCC argues that matter 1(b) is the more serious, because of the earlier express warning of the investigating officer, Detective Senior Constable Nielson not to interfere in investigations in relation to the disclosures made to AZC. It submits that, in view of that warning, a higher degree of sanction is warranted. 30 Supplementary s 21(2) documents filed 13 October 2014, Policy 2013/54 Disciplinary Proceedings (Police Officers) Policy, clause 3.4. -- 10 of 20 -- 11 [38] Further, it submits that it is significant that the conduct did not involve a brief lapse in judgment, with the accessing and disclosure of information occurring in multiple instances over the period December 2011 to January 2013. [39] Mr Miers submits that he made admissions at the outset to the effect that he had inappropriately accessed and released confidential information, and participated fully in the disciplinary process. He submits that the CCC overlooks Mr Miers’ limited policing experience and his admissions. [40] As Mr Miers argues, the evidence does not support Detective Senior Constable Neilson having gone so far as to warn Mr Miers in the broad terms which the CCC suggests. It seems instead to have been a warning against getting involved in the matter concerned. Also, it is apparent that he had no supervisory relationship with Mr Miers. That said, there is a reasonable argument that Mr Miers’ discussion with Detective Senior Constable Neilson about the AZC matter should nevertheless have prompted a greater degree of awareness. [41] Mr Miers submits that the more serious possible consequences of the actions did not eventuate. He argues that he should not be sanctioned on what might have happened rather than what did occur. [42] The CCC further submits that while there is no evidence that Mr Miers gained any financial or other benefit or advantage personally from the disclosures, he put two personal relationships above his duty to the QPS. The CCC says that information about a complainant was given to a suspect, and nothing was recorded in QPRIME by Mr Miers or with the investigating officer. When Mr Miers was asked why he had looked at the complainant’s drivers licence, he said that this was his idea because apparently, he (the complainant) was driving his car and he (Mr Miers) just wanted to check whether he was licenced. CCC suggests that it is difficult to contemplate that this was not done to advantage JXJ. It submits that no greater breach of trust could occur then to arm an alleged perpetrator with confidential information about a complainant that came from the victim to the QPS. [43] The CCC also submits that Mr Miers was not fulsome in providing information to the disciplinary process, but simply responded to those aspects of his conduct which were put to him in the investigations. For example, it says he initially said he had spoken to JXJ once and looked him up twice.31 He did not volunteer that he had looked JXJ up on several other occasions or that he had spoken to him on the phone about it.32 However when he was later asked if he had ever contacted JXJ from work, he confirmed that he had done so about ‘what he was involved with on the system’.33 31 Ibid Part B, 168. 32 Ibid 166. 33 Ibid 170. -- 11 of 20 -- 12 [44] Mr Miers submits that the CCC submission overlooks the nature of the disciplinary process. He says that he was a junior police officer, who was asked to detail occurrences over several weeks during the disciplinary interviews, (which themselves did not occur for some months after the last disclosure to JXJ). The interview process proceeds by the asking and answering of questions: questions are asked by an investigator and responses are then provided in turn. Although it was conceded that he could have been more forthcoming, he points out that there was a significant power imbalance. [45] The CCC suggests that despite having confirmed his suspicions that JXJ was an associate of members of criminal motorcycle gangs, Mr Miers did not leave the gym, that being the alleged reason he had looked up the records.34 In fact, having ascertained that, Mr Miers then continued looking for further information, and in all read some hundreds of pages of records relating in QPRIME relating to JXJ. The explanation given for looking more closely was that Mr Miers could tell Intel if they were serious,35 and yet Intel were not informed. [46] It suggests that Mr Miers’ explanation for his behaviour in the circumstances, especially as concerns matter 1(b), is not believable and that the material does not support the naivety, (attributed to him by Detective Inspector Swan and) which the decision-maker appears to have accepted. [47] The CCC submits that Mr Miers was not naïve, as appears to have been accepted by the decision-maker as a factor in mitigation. It submits that naivety would be to use QPRIME to track down an old school friend or something of that nature. Mr Miers, it says, already knew that he should not do what he did as a result of his training, the QPRIME login screen which clearly states that accessing information on the system must be by authorised persons and that persons are not authorised to access information for personal reasons. It states further that the information contained on the screen is confidential and must not be disclosed to unauthorised persons and that improper disclosure is an offence under the Police Service Administration Act 1990 (Qld). [48] Mr Miers relies upon Detective Inspector Swan’s assessment of him made in light of his personal observations and investigations. Mr Miers’ lawyers submit that I should accept in essence that he did not or was not able to understand that what he was doing was wrong. If that is so, it does not serve to instil great confidence about his likely responses in the diverse circumstances in which a police officer will likely be placed requiring the exercise of sound judgment. Further, Mr Miers says that he is a junior officer and he says that if the situation arose again, he would speak to a supervisor. 34 Ibid 166. 35 Ibid 166. -- 12 of 20 -- 13 [49] Firstly, I do not accept the CCC’s submission about Mr Miers’ participation in the disciplinary process. He co-operated fully. He made admissions. He could, perhaps, have volunteered more information at any early stage in the questioning, but I accept that he answered questions as they were asked of him as he was required to do given the nature of the investigations. As an officer with limited policing experience he would likely have been somewhat daunted by the process, in which I accept there is a significant power imbalance. I do not consider it reasonable to draw any adverse conclusions about his response on the basis that he did not volunteer more information earlier in the questioning process. [50] In respect of the naivety of Mr Miers, the decision-maker had regard to the observations made by Detective Inspector Swan and appears to have accepted them without articulating why he did so. That said, given the nature of the disciplinary process the decision-maker did not have the opportunity to make his own assessment of Mr Miers based on his own observations of Mr Miers giving evidence. [51] I did initially consider Detective Inspector Swan’s assessment of the conduct as naïve and honest (and the decision-maker’s apparent acceptance of it) somewhat surprising, especially in relation to matter 1(b).36 [52] I say this having regard to the matters raised by the CCC questioning Mr Miers’ explanations and naivety. It is reasonable to expect that every police officer understands (from their basic training and the login screens), from the time of commencing duty, the inappropriateness of acting as Mr Miers did. The conduct occurred over a protracted period and so cannot be considered a brief lapse of judgment. Also, at least in relation to matter 1(b), the discussion between Mr Miers and Detective Senior Constable Neilson should reasonably have placed Mr Miers on notice, at the very least, that he should not disclose any confidential information on QPRIME to a person outside of the police force who is the subject of investigation by other officers. Further, having ascertained that JXJ was an associate of criminal motorcycle gang members, Mr Miers did not leave the gym and continued to access the records and disclose information to him. [53] However, the investigation report about matter 1(b) is dated 18 February 2013.37 The report about matter 1(a) is dated 2 July 2013.38 Accordingly, although the investigation into the 1(a) matters appears to have arisen out of the investigation of the 1(b) matter, when he investigated matter 1(b), Detective Inspector Swan had not investigated the events in relation to matter 1(a). 36 In making these comments, I acknowledge that in respect of matter 1(a), Detective Neilson’s comments about Mr Miers are to the effect that essentially, he thought Mr Miers seemed like a nice person trying to help out a friend and not realising that it was inappropriate. 37 Section 21(2) Documents, Part B, 1. 38 Ibid 796. -- 13 of 20 -- 14 [54] Whether Detective Inspector Swan’s assessment of Mr Miers in the report about matter 1(b) would have differed, had he already investigated the earlier events concerning matter 1(a) (or had he investigated both at the same time) when he investigated matter 1(b) is unknown. He may well have been prompted to ask some additional questions in investigating matter 1(b). It does not appear that he was asked to consider whether his assessment of Mr Miers’ naivety and honesty in relation to matter 1(b) were altered in any way having regard to his investigation into matter 1(a). [55] Accordingly, I have some reservations about the basis upon which Detective Inspector Swan’s observations about naivety were made about matter 1(b). Given the nature of this review, these cannot be tested. It is not apparent whether the decision-maker was cognisant of this sequence. But for the issues later discussed, the chronological sequence of the investigations may have diminished the weight which I would have considered appropriately accorded to the assessment of Detective Inspector Swan about Mr Miers’ honesty and naivety in respect of matter 1(b). [56] It seems from the comparable decisions (discussed below) that the terminology ‘naïve’ has generally been used to connote access and/or disclosure in circumstances where the officer has no ill-intent and/or obtains no personal gain from the conduct. It is not apparent that this is the manner in which Detective Inspector Swan intended the words, (or that the decision-maker accepted them on this basis), but if his comments are taken in this light, his expressed views are more explicable. Mr Miers’ conduct would be more reprehensible if done maliciously with intent to cause harm or for some personal gain. [57] Although not entirely clear, it appears that the decision-maker may have accepted that Mr Miers’ motivation was to achieve outcomes towards the investigations being finalised. In view of the matters earlier discussed, I am not persuaded to make a finding to that effect. However, the decision-maker did accept that Mr Miers was not motivated by any sinister or improper purpose. The evidence does not suggest otherwise, and I also accept, that Mr Miers was not maliciously or improperly motivated. Further, I accept that he received no personal gain as a result of the conduct. On this limited and qualified basis, I accept that the conduct may be considered ‘naïve and honest’. [58] Further, I accept that the lack of ill intent and lack of personal gain to Mr Miers mitigates the seriousness of the conduct to be sanctioned. [59] That said, (as did the decision-maker) I consider the misconduct of Mr Miers to be a serious matter. Such conduct may be the subject of criminal charges. Although he may have been a junior officer, as was properly conceded by Mr Miers’ Counsel, training for police officers includes training about inappropriate accessing and disclosing of information. Further, the QPRIME login screen itself reminds users of the seriousness of inappropriately accessing, as well as disclosing information. -- 14 of 20 -- 15 [60] I reject Mr Miers’ argument that he should be sanctioned on the basis of the events which later transpired. It seems to me, as the decision-maker observed, that it was merely a matter of luck that the potentially very serious consequences which may have eventuated from the conduct, did not occur. JXJ did use the facts he had obtained from Mr Miers to contact a complainant. He spoke of the details the complainant had told police, saying that his ‘mate’ is a police officer, so he knew what had been said. [61] Like the decision-maker, I am satisfied that it was only a matter of happenstance that the most serious possible consequences did not eventuate. The potential consequences were most serious, even though the ‘worst case scenario’ did not eventuate. It is the misconduct which is the subject of the sanction, not the actual consequences.39 Comparable decisions [62] A list of ‘precedents’ attached to Mr Miers’ submissions to the decision- maker are not sufficiently identified and contain insufficient detail to assist me. I have given that information no weight. [63] Both parties referred me to a variety of published decisions concerning the accessing and disclosure of information by police officers. Some of these are discussed below. [64] The CCC points out that in only one of the comparative cases involving accessing and /or disclosing information was the sanction suspended. The suspension occurred in Malcolm v Assistant Commissioner Pointing40 which concerned disclosure by a communications officer, who told a journalist more information than he should have. Communications officers have a discretion to disclose information to the media, subject to a policy. There was no prejudice or interference with the administration of justice. The Tribunal appeared to accept that the behaviour was ‘only just’ misconduct. The officer was reduced from sergeant 3.1 to senior constable 2.9, suspended for 12 months, subject to performance of 100 hours of community service and no further misconduct during the suspension period. [65] The CCC submits that Chapman v Richards & Anor41 is the most comparable. It involved an officer giving information to a person suspected of being an OMG associate in circumstances where the Misconduct Tribunal concluded he was not a naïve police officer. The officer suspected that the person was actively trading amphetamines and that she was connected with an OMG. It involved two accesses of documents five days apart and one release of information. The officer was dismissed on each of those charges (as well as a third charge, which is irrelevant here, concerning engaging in a sexual relationship with the person when she was a complainant and witness in a domestic violence matter). 39 This approach was also taken in Crime and Misconduct Commission v Deputy Commissioner Barnett & Thomas [2013] QCAT 365, [18]. 40 [2010] QCAT 505. 41 [2008] QSC 120. -- 15 of 20 -- 16 [66] In Breeuwsma v Deputy Commissioner McGibbon,42 a constable with 12 years of service was found to have made three unauthorised accesses and two disclosures over a period of some two months. The information concerned an allegedly stolen (although a formal complaint had not been made) motorbike and the releases were to a friend (with whom the officer was acquainted) of the person who allegedly owned the bike. The officer did not receive any personal gain. The officer was reduced from constable 1.6 to constable 1.4. Reference is made in that case to a decision in a matter of Crawford in which an officer disclosed contact details of a person to a friend. The person concerned believed the friend had been stalking her. The officer was considered to have naively released the information, although he was also charged with telling lies to investigators about the matter on two occasions. He was reduced from senior constable pay-point 2.2 to 2.1. [67] In Pennisi v Stevens43 an officer with 23 years service disclosed information to an associate of a person under surveillance about the operation, which she then disclosed to the person under surveillance. It was considered to have been done naively, recklessly and stupidly44 and he was later evasive and untruthful about it.45 These factors were considered to militate against mitigation. However, in his favour was his lengthy meritorious service, studies undertaken to become a ‘better educated, informed and skilful officer’46 and impressive references; the considerable delay in bringing the matter to finality; and (because as a sergeant), he was not entitled to automatically proceed to a higher pay- point as future increases depended on appraisal (in which the finding of misconduct would be taken into account when promotion was considered). He was reduced from sergeant pay-point 1.3 to sergeant 1.1. [68] In Criminal Justice Act 1989 v Bowen47 a commissioned officer with 30 years of meritorious service disclosed confidential information to another officer about a complaint made against that other officer, which he later falsely denied orally and under oath. He was reduced in rank to sergeant at the first pay-point. [69] Irving v Aldrich48 concerned a constable of some seven years who was reduced from pay-point 1.5 to 1.2 for misconduct in twice accessing police records other than for official purposes. He had also been found by the decision-maker (although he did not review these decisions) to have committed misconduct in disclosing information revealed in the accessing of records to a person not authorised to receive it and being untruthful during investigation of the matters referred to. For these two further substantiated charges, he was dismissed but the dismissal was suspended for one year on the condition of no further misconduct. 42 Misconduct Tribunal TA 11 of 2000. 43 Misconduct Tribunal TA 2 of 1993. 44 Ibid 20, last paragraph. 45 Ibid 21 – 33. 46 Ibid 35. 47 Supreme Court of Queensland 651/1994, 5 October 1995. 48 Misconduct Tribunal TA 2 of 1995. -- 16 of 20 -- 17 [70] In Koumanis v McGibbon49 a senior constable, at the stage the charges of misconduct were considered, with some eight years of service, was found to have accessed information for non-official purposes at the request of a person; released confidential information to without an official purpose to the person on some 291 occasions over a period in excess of three years; and then to have been untruthful about these matters during investigation of them. By way of sanction, he was reduced from senior constable 1.2 to constable 1.1. [71] In Podlich v Wilson50 a senior sergeant was found to have engaged in misconduct in accessing information from police records other than for official purposes relating to a person with whom he had a personal relationship. He was reprimanded. [72] Ultimately, each case turns on its own facts. No two cases are identical. There are a range of factors which will be relevant. [73] The circumstances here are more serious than those in Malcolm’s case, which involved a suspended sanction. In that case, the officer overstepped the proper boundaries concerning legitimate release of information. Mr Miers had no proper basis for the accessing and disclosure of the information. [74] Chapman v Richards is not comparable in the sense that the police officer was not naïve. Pennisi and Bowen both concerned very experienced officers. In Pennisi, although it was done naively, the officer was later considered to be evasive and untruthful about it. In Bowen, there were also later false denials made. Podlich concerned accessing of information only and can be distinguished on that basis. [75] Breeuwsma and Crawford both involved relatively junior officers, although in each case they were more experienced than Mr Miers, who like Mr Miers, received no personal gain and made disclosures (although for different reasons) to friends. Unlike here, Mr Crawford was untruthful about it in the investigation. Both suffered a loss of pay-points, respectively two pay-points and one pay-point. In Koumanis a very large number of instances of accessing and releasing of confidential information, as well as untruthfulness during the investigation, led to a one pay-point reduction. Again in Irving, the untruthfulness during investigation distinguishes it from Mr Miers’ circumstances, although that was the subject of a separate charge. [76] Ultimately, I am of the view that the most comparable decision is Breeuwsma, although in that case, the accessing and disclosure did not occur over the protracted period that they did here. The police officer was sanctioned with a loss of pay-points and the sanction was not suspended. 49 Misconduct Tribunal TA 16 of 2000. 50 Misconduct Tribunal TA 10 of 2003. -- 17 of 20 -- 18 Purposes of disciplinary proceedings [77] The purposes of disciplinary proceedings were discussed earlier and include maintaining public confidence and integrity in the performance of police duties. Mr Miers’ misconduct has the potential to undermine confidence in the police service and integrity in the performance of police duties, despite it not being maliciously motivated and despite there being no personal gain to him. [78] As discussed earlier, sanction must be adequate to signify the public disapproval of the conduct and deter the officer and others from similar future conduct. While I accept that as Mr Miers argues, disciplinary proceedings are not punitive in nature and that a reduction in pay-point will have negative financial consequences for him, disciplinary proceedings must nevertheless meet the purposes of discipline in the particular case. [79] Although a suspended sentence may be appropriate in particular circumstances, the CCC argues that financial impact has a greater deterrent having regard to the purposes of discipline, than suspension. It says that financial impact of a sanction for the individual concerned generally supports the deterrent effect. I agree. Other relevant matters and orders [80] I understand there have been no further instances of misconduct. However, this is not itself a mitigating factor. [81] Mr Miers has expressed his regret about the conduct both for himself and the service.51 His regret may indicate that some insight has been gained. Mr Miers submits that he has been rehabilitated and the purposes of the disciplinary process achieved. However, that does not acknowledge the importance of general deterrence. [82] Delay may be relevant to the sanction imposed. The conduct occurred between late 2011 and mid-January 2013. An investigation followed. The disciplinary hearing before the decision-maker did not conclude until June 2014, and this review process has subsequently proceeded. It is now a little over 2 years since the misconduct ceased. Although not a short period, this is not an extraordinary delay. In any event, whereas I accept that delay may be relevant to the sanction imposed,52 it is only one factor to be considered. [83] As discussed earlier in respect of the issue about whether separate sanctions may be imposed for each limb of the disciplinary charge, I consider that the Policy should be followed. That means that only one sanction may be imposed for the disciplinary charge as it is framed. However, I have concluded that a sanction may include several components. Accordingly, although I would not impose separate sanctions 51 Section 21(2) Documents, Part B, 12 at [4.35]. 52 See for example, Crime and Misconduct Commission v Swindells & Gardiner [2010] QCATA 490. -- 18 of 20 -- 19 for each of the matters 1(a) and 1(b), it is open to me to impose a sanction consisting of multiple components. [84] Having regard to the seriousness of the conduct, the comparable decisions and the purposes of discipline and according due regard to the decision-maker’s views, (and ignoring for the moment, the community service already performed by Mr Miers) I am satisfied, that as the decision-maker found, that reduction of one pay-point would be the appropriate sanction. In the ordinary course, Mr Miers would not then have expected to return to his current pay-point for some 12 months. [85] The decision-maker then considered suspension. I acknowledge that a pay-point reduction would have immediate financial consequences for Mr Miers. However, every officer on whom a pay-point reduction is imposed (not to mention other sanctions such as dismissal and suspension) is negatively financially impacted. That alone cannot justify suspension. [86] In suspending the sanction, the decision-maker also referred to suspension of sanction not necessarily negatively impacting on deterrence. That general observation (it does not appear to be an actual finding) does not speak to these particular circumstances. I do not identify any factor which would support a finding to this effect in Mr Miers’ circumstances. As discussed earlier, I accept that the financial consequences of the sanction do support the deterrent effect. [87] Malcolm is the only case referred to in which a suspension was granted. It involved considerably less serious misconduct. I am not satisfied that in the circumstances, a suspended sanction has appropriate deterrent effect. On the evidence, I am not satisfied that there is any proper basis to suspend any pay-point reduction imposed on Mr Miers. [88] Accordingly, but for the community service obligations under the decision- maker’s decision which have already been performed, I would have imposed the sanction of reduction of one pay-point. Mr Miers submits that he has effectively worked for no pay for two weeks under the community service obligations. This is not insignificant, even though it has had no direct financial impact. I consider this must properly be taken into account, in determining the overall sanction to be imposed. [89] In recognition of the community service already performed by Mr Miers, I will reduce the period of pay-point reduction to 6 months, at the conclusion of which Mr Miers is to return to his pay-point as at the date of these orders and progress subject to the usual industrial requirements. [90] At the time of disciplinary hearing before the decision-maker, Mr Miers was on pay-point constable 1.3. However, it appears that he has likely progressed to pay-point constable 1.4. Accordingly, I propose to frame my orders in terms of a one pay-point reduction without reference to the particular pay-point. -- 19 of 20 -- 20 [91] I make orders accordingly. Non-publication order [92] I note that a non-publication order made on 22 July 2014 prohibits publication of any of the material contained in the s 21(2) documents and the names and/or identifying details of all third parties. [93] On the Tribunal’s own initiative, I propose to vary the terms of the non- publication order to prohibit publication of the of material contained in the s 21(2) documents other than as and to the extent contained or referred to in these reasons. I further propose to vary the orders to prohibit publications of the names and/or identifying details of any third parties who are not police officers. [94] The parties may make submissions within seven days in respect of these proposed variations to the non-publication order. If none are received, I will make orders accordingly without further notice to the parties. If either of the parties opposes the proposed variations, I will list the matter for an oral hearing on either party’s request. Otherwise, I will make orders without an oral hearing on the basis of the submissions. -- 20 of 20 --