Crime and Corruption Commission v Queensland Police Service and Anor [2015] QCATA 15

CITATION: Crime and Corruption Commission v Queensland Police Service and anor [2015] QCATA 15 PARTIES: Crime and Corruption Commission (Appellant) v Queensland Police Service (First Respondent) Anthony Richard Francis (Second Respondent) APPLICATION NUMBER: APL412-13 MATTER TYPE: Appeals HEARING DATE: 3 November 2014 HEARD AT: Brisbane DECISION OF: Justice Thomas, President Senior Member Stilgoe, OAM Member McLennan DELIVERED ON: 5 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The sanction imposed for Matters 1 and 3 is confirmed. 2. The sanction imposed for Matter 2 is set aside. 3. Anthony Richard Francis is dismissed effective from the date of this decision. CATCHWORDS: APPEALS – OCCUPATIONAL REGULATION – POLICE OFFICERS – DISCIPLINE – appeal of disciplinary order of suspended dismissal with conditions – weight applicable to mitigating circumstances – suspension of dismissal – reasonableness of sanction Police Service Administration Act 1990 (Qld) s 7.2 Police Service (Discipline) Regulations 1990 (Qld) Reg 3(a) and (b) -- 1 of 12 -- 2 Accused A v Callanan [2009] QSC 12 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Hardcastle v Commissioner of Police (1984) 53 ALR 593 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Flegg v CMC and anor [2014] QCA 42 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Aldrich v Ross (2001) 2 Qd R 235 Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No.1 of 2003 Vann v Deputy Commissioner McGibbon Misconduct Tribunal Queensland No.TA4 of 2001 APPEARANCES: APPLICANT: Mr A J McSporran QC, instructed by the Deputy Official Solicitor, Crime and Misconduct Commission FIRST RESPONDENT: Mr Nicholson of Counsel, instructed by Queensland Police Service Official Solicitor SECOND RESPONDENT: Mr S W Zillman of Counsel, instructed by Slater and Gordon, Lawyers REASONS FOR DECISION Background [1] Mr Francis was inducted into the Queensland Police Service (QPS) in August 1999. In 2010, when his conduct first came to the attention of the QPS, Mr Francis was a Constable on paypoint 5.1. [2] It is a matter of public record that, in 2009 to 2010, there were concerns about the efficacy and integrity of QPS officers stationed in the Gold Coast region. The Crime and Misconduct Commission (the ‘CMC’ as it then was) responded to those concerns by implementing Operation Tesco. [3] As part of Operation Tesco, the CMC investigated Mr Francis. He was charged with three disciplinary offences. In broad terms, the first charge related to inappropriate use of a QPS vehicle. The second charge related to apparent conflicts between Mr Francis’ duty as an officer to act -- 2 of 12 -- 3 impartially and the interests of a night club owner who was Mr Francis’ acquaintance; improper access to the QPS database and an inappropriate discussion of the details of a CMC investigation. The third charge related to an inappropriate and disrespectful secret Santa prank, which involved denigrating an officer who had reported misconduct, and a failure to report the misconduct of another officer. [4] In a decision dated 4 April 2012, a Deputy Commissioner of the QPS found that Mr Francis had engaged in misconduct on numerous occasions between 2006 and 2010. The Commissioner imposed a range of sanctions including demotion and suspension. [5] The then CMC applied to the Queensland Civil and Administrative Tribunal (tribunal) to review the Commissioner’s decision. It submitted that the Deputy Commissioner’s sanctions did not respond appropriately to the very serious nature of the misconduct and that Mr Francis should have been dismissed. [6] In a detailed review, a Member of the tribunal confirmed the original decision for Matters 1 and 3. The sanction imposed on Constable Anthony Richard Francis for Matter 2 was set aside. The learned Member found that Matter 2 did merit dismissal and ordered: (a) Suspension from the QPS for a period of 12 months from 20 August 2010 until 19 August 2011 during which time there is no entitlement to any salary and entitlements or accumulation of leave; and (b) Dismissal from the QPS effective 4 April 2012 with the sanction of dismissal suspended for a period of 3 years, to be implemented in the event of any further finding against Constable Anthony Richard Francis of misconduct committed during the 3 year period of suspension. The appeal [7] The appeal filed in the tribunal on 16 September 2013 by the then CMC and now Crime and Corruption Commission (CCC) involves a question of law. Therefore, leave is not necessary. The CCC urges the appeal tribunal to apply the Wednesbury principles: that no reasonable tribunal could have concluded that the sanction of dismissal should have been suspended.1 It submits that the only reasonable sanction open was dismissal. [8] The Wednesbury principles require that the case for overturning the tribunal’s decision must be ‘overwhelming’.2 1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 2 Accused A v Callanan [2009] QSC 12 per Applegarth J at 129 citing Lord Green MR in Wednesbury. -- 3 of 12 -- 4 [9] The Court of Appeal has recently considered the application of the Wednesbury principles as they apply to decisions of this tribunal in Flegg v Crime and Misconduct Commission.3 The Court of Appeal was applying the principles to a decision in the police misconduct jurisdiction of the tribunal although, of course, the decision has general application. [10] The President of the Court of Appeal, referring to the High Court decision of Minister for Immigration and Citizenship v Li,4 expressed the test in these terms: “…whether the [decision] was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered.”5 [11] Gotterson JA, with whom Margaret Wilson J agreed, also referred to Li, noting6 that the Wednesbury principles did not allow a challenge to a decision on the basis that the decision-maker had not given sufficient weight to a matter, or gave excessive weight to a matter, or made an evaluative judgment with which the appellate tribunal disagreed. He noted7 that the test was a stringent one, which, in practice, has rarely been successful. [12] The task for this appeals tribunal, then, is to examine the learned Member’s reasoning to determine whether it was a decision that can be justified even though “. . . reasonable minds could reasonably differ”8 or whether the decision was so unreasonable that it lacked an evident and intelligible justification. [13] Counsel for the CCC submitted that the suspension of the dismissal was flawed. He submitted that the chronology of misconduct charged from 2006 to 2010 demonstrated an escalation in seriousness of the misconduct by Mr Francis. That no misconduct was identified in 2007 and 2008 was not necessarily favourable to Mr Francis. [14] Counsel for the CCC submitted that the learned Member had appropriately identified in relation to Matter 1(b) the misconduct as “serious”9 and “of significant concern in maintaining public confidence in the police service, as police officers charge other persons with offences for behaving in a similar manner.”10 The Member accepted that there was demonstrated disregard for the proper use of police service resources and that Matter 1(b) in particular “revealed some troubling attitudes which are 3 Flegg v CMC and anor [2014] QCA 42. 4 (2013) 249 CLR 332. [2013] HCA 18. 5 Supra at [3]. 6 Supra at [16]. 7 At [17]. 8 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 [137] per Gummow J. 9 Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477 at [32]. 10 Ibid, at [33]. -- 4 of 12 -- 5 inappropriate in a serving officer and may tend to diminish public confidence in the police service and that Matter 1(c) suggests a disregard for the authority of Sergeant D and QPS requirements.”11 [15] Counsel for the CCC in relation to Matter 2(a) examined the learned Member’s view where she stated: “It demonstrates a serious lack of judgment in the performance of official duties. I consider that such conduct has considerable potential to erode public confidence in the police service. Members of the public must feel assured of impartial behaviour from members of the police service if confidence in it is to be maintained.”12 Counsel submitted that suspension of the dismissal in the context of the misconduct and the finding was inappropriate. [16] At paragraphs 43 and 44 of the decision in relation to Matter 2(b) and in the context of Mr Francis’ lack of admission that the conduct was misconduct, the learned Member correctly identified the issue as a conflict between Mr Francis’ personal interests with his responsibilities as a police officer. The Member then found that the misconduct constituted “a serious error of judgment in the performance of official duties.”13 [17] In relation to Matter 2(c) involving the inappropriate access and release of details from the police database QPRIME, the learned Member found that the misconduct of “accessing of personal information of members of the public for non-official purposes tends to erode public confidence that the members of the police service will have proper regard for the privacy and confidentiality which attaches to personal information held in QPRIME.”14 [18] In relation to Matter 2(d) where the charge was substantiated but Mr Francis did not admit the conduct, the learned Member found that “behaviour of this type has the potential to seriously undermine public confidence in the police service.”15 At paragraph 49 the learned Member stated: “I consider the misconduct which is the subject of Matter 2 generally significantly more serious, and each of them 2(a) to (d), has significant potential to undermine public confidence in the police service. It also has the potential to undermine internal police service confidence.” [19] Counsel for the CCC submitted to this appeal tribunal that it is destructive to allow an officer such as Mr Francis to remain within the QPS. He submitted that the suspension of dismissal was not intelligently justifiable in the context of the consistent findings made by the Member. [20] Similarly at paragraph 51 in Matter 3(a) it was considered significant that Mr Francis had been prepared to implement the secret Santa gift to denigrate another officer who had been identified as responsible for reporting of some instances of misconduct, when no other person was 11 Ibid, at [39]. 12 Ibid, at [42]. 13 Ibid, at [44]. 14 Ibid, at [45]. 15 Ibid, at [48]. -- 5 of 12 -- 6 prepared to.16 The learned Member agreed with the original decision maker that Mr Francis’ misconduct demonstrated an archaic, unacceptable attitude towards “… covering up misconduct of colleagues, which is contrary to expectations in a modern and accountable police service. Indeed, section 7.3 of the Police Service Administration Act 1990 provides for an offence of victimisation for compliance with officer’s duty to report misconduct or breaches of discipline as required by section 7.2. The CMC submits that his failure to take full responsibility is also indicative of his attitude towards matters of misconduct. I also accept this submission.”17 [21] Matter 3(b) involved Mr Francis’ obliviousness to the necessity to report the misconduct of another officer who disclosed the identity of an informant to the person informed against which constitutes an offence under the Drugs Misuse Act 1986. The learned Member noted that section 7.2 of the Police Service Administration Act 1990 imposes a duty to report misconduct.18 The Member inferred from this “apparent obliviousness” and omission in an officer of over 10 years experience, a lack of regard to QPS requirements.19 [22] There are consistent findings in the learned Member’s reasons: “serious”; “undermine public confidence in the police service”; “serious error of judgment in the performance of official duties”; “archaic, unacceptable attitude towards ‘covering up misconduct of colleagues’”; “potential to undermine internal police service confidence”; “erode public confidence that the members of the police service will have proper regard for the privacy and confidentiality which attaches to personal information”; “of significant concern in maintaining public confidence in the police service”. [23] Regulation 3 of the Police Service (Discipline) Regulations 1990 provides: The object of these regulations is to— (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. [24] Counsel for the CCC drew the tribunal’s attention to the separate limbs in the regulation as well as the cumulative effect of the conjunction “and” so that all the component parts must be satisfied. He submitted that in the 16 Ibid, at [51]. 17 Ibid, at [52]. 18 Ibid, at [53]. 19 Ibid, at [56]. -- 6 of 12 -- 7 mechanics of the sanction imposed, consideration should not be limited to Matter 2 only but to the entire misconduct evident in Matters 1 and 3 as well. Counsel for Mr Francis resisted this submission and maintained the focus must remain on Matter 2. [25] There are authoritative statements as to the purpose of discipline in the police service. His Honour Brennan J stated in Police Serve Board v Morris: “The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.”20 [26] Similarly in Hardcastle v Commissioner of Police the Full Court of the Federal Court stated, in relation to the relevant Australian Federal Police (Discipline) Regulations: “The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body.”21 [27] The precedents establish that the purpose of disciplinary proceedings within the police jurisdiction encompasses the requirements of deterrence, the protection of the public,22 the maintenance of proper standards,23 and the necessity for community confidence in the police service.24 Any sanction has to reflect appropriate disapproval.25 In her decision, the learned Member stated: “I consider the charges in Matter 2 very serious indeed. In light of the seriousness with which I regard the charges in Matter 2, I consider that to maintain public confidence, Constable Francis must be dismissed.”26 20 (1985) 156 CLR 397 at 412. 21 (1984) 53 ALR 593 at 597. 22 Aldrich v Ross (2001) 2 Qd R 235 at 247. 23 Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597. 24 Aldrich v Ross (2001) 2 Qd R 235 at 247. 25 Queensland Police Service v Compton (No 2) [2011] QCATA 246 at [25]. 26 Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477 at [92]. -- 7 of 12 -- 8 [28] She also took a more serious view than did the decision-maker and the CMC to Matters 1(b) and (1)(c).27 [29] She stated: “In my view, having regard to the charges, the purpose of maintaining public confidence in the police service can not be achieved if the sanction of dismissal is not imposed.”28 [30] With respect, this tribunal considers these statements of the learned Member to be intelligible and justifiable based on the evidence before her. [31] The learned Member then decided, in light of mitigating factors, to suspend the dismissal.29 What were the mitigating factors? Did the evidence demonstrate support for the learned Member’s findings? Was the learned Member’s decision unreasonable because it lacked an evident and intelligible justification? Mitigating factor 1 - Mr Francis’ cooperative approach [32] The learned Member stated that Mr Francis took a cooperative approach by accepting substantiation of numerous charges, which demonstrated honesty and a willingness to face up to obligations. [33] The learned Member recorded that Mr Francis conceded Matters 1(a), 1(b), 2(c), 3(a) and 3(b). Matter 1(a) is that, whilst he was on duty, Mr Francis inappropriately used a QPS vehicle to transport two civilians.30 Matter 1(b) is that, while off duty, Mr Francis was transported home by a QPS vehicle and subsequently urinated on the back of the vehicle when it was stopped on the side of the road. Matter 2(c) relates to uanuthorised searches through QPrime, the QPS database. Matter 3(a) relates to a secret Santa prank (which denigrated an officer who reported misconduct) and Matter 3(b) is the failure to report misconduct. [34] All of these charges could be substantiated by independent evidence. They were not the most serious charges Mr Francis faced. As the learned Member later observed,31 Mr Francis did not admit most of the more serious charges. The learned Member also observed that, while Mr Francis admitted the facts of some charges, he did not admit that the facts amounted to misconduct.32 [35] The learned Member noted that Mr Francis did not recall conversations from his superiors directing him not to use QPS vehicles for private 27 Ibid, at [91]. 28 Ibid, at [90]. 29 Ibid, at [93]. 30 Ibid, at [21]. 31 Ibid, at [82]. 32 Ibid, at [22], [43]. -- 8 of 12 -- 9 transportation. She observed that these were conversations he should have recalled in light of the CMC investigations at the time.33 [36] Mr Francis did not admit a charge of discussing CMC proceedings with another witness in the face of a non-publication order. Although not all elements of the charge were proven, the learned Member found that Mr Francis’ non-admission showed a lack of insight into the appropriateness of his conduct.34 [37] In relation to the secret Santa incident, the learned Member found that Mr Francis attempted to downplay his role in the organisation of the gift.35 [38] The learned Member’s conclusion that Mr Francis’ admissions showed cooperation, honesty and a willingness to face up to his obligations sit uncomfortably with these findings. In an officer of Mr Francis’ more than 10 years of service, it is surprising indeed that his responsiveness to the ethical and integrity obligations required by the QPS remained so limited. Mitigating factor 2 - Development of greater insight [39] The learned Member’s reasons cite numerous examples of Mr Francis’ lack of insight at the time of the offences. But the learned Member found that Mr Francis had demonstrated development of some considerably greater insight as a result of the proceedings as displayed in his submissions. It is appropriate, therefore, to look at Mr Francis’ submissions to the learned Member. [40] There is only one reference to insight in those submissions. The CMC submitted that the failure to report misconduct that Mr Francis should reasonably have suspected was a particulalry serious example of misconduct. In his submissions, Mr Francis stated that the CMC’s position was not demonstrated by the record.36 Instead, Mr Francis submitted that, while he was aware of all relevant facts, he had not, at the relevant time, turned his mind to the issue. Nowhere in his submissions does Mr Francis acknowledge that he should have turned his mind to the issue and that he now had a better understanding of the obligations imposed upon serving officers. [41] The only other evidence that Mr Francis had developed insight appears in his references. The learned Member noted that the references spoke of Mr Francis’ positive attitude, professionalism, sound policing knowledge and diligence. She did not find that the references spoke to Mr Francis’ insight.37 33 Ibid, at [35]. 34 Ibid, at [48]. 35 Ibid, at [51]. 36 Submissions of the second respondent filed 2 April 2013. 37 Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477 at [84]. -- 9 of 12 -- 10 [42] The references do provide some support for a finding that Mr Francis has gained insight. Sergeant Lewis stated: “I am of the view that this is Constable Francis’ last brush with disciplinary breaches/misconduct and that he has resolved to get on with a productive contribution as an effective police officer.” [43] It would, of course, be surprising if Mr Francis had not resolved to get on with being a productive police officer in the face of continuing disciplinary proceedings and the “spectre of dismissal”.38 But the learned Member had already discounted the value of Mr Francis’ references. She said: “While it is pleasing that he has responded well to the second chance afforded to him by the decision-maker, this is not of itself a mitigating factor.”39 [44] Further, the learned Member expressly doubted the extent of Mr Francis’ insight: “…concerns remain for me about his ability to identify appropriate conduct in the future for himself and in others when he is ‘on the spot’ and involved in a situation.”40 [45] The learned Member’s own findings do not readily support a conclusion that Mr Francis’ newly gained insight is a proper ground for mitigation. Mitigating factor 3 - The community’s investment in Mr Francis’ training and skills development [46] There is some support for the proposition that the community’s investment in the training of a police officer is a relevant factor when considering sanction, see Vann v Deputy Commissioner McGibbon.41 That said, the tribunal must give thought to the nature of the investment and its perceived value to the community in the future. The learned Member’s reasons, although referring to the principle,42 do not disclose any detailed consideration of this factor. [47] Mr Francis has been a serving police officer for over 10 years. Despite that length of service, he had not progressed beyond the rank of Constable. The Deputy Commissioner’s sanction, which the then CMC originally applied to the tribunal for review, demoted Mr Francis to the first year constable’s program, effectively discounting all his years of duty. This places Mr Francis in no better position than a newly recruited 38 Vann v Deputy Commissioner McGibbon Misconduct Tribunal Queensland No.TA4 of 2001 unpaginated. 39 Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477 at [85]. 40 Ibid, at [82]. 41 Vann v Deputy Commissioner McGibbon Misconduct Tribunal Queensland TA4 of 2001. 42 Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477 at [94]. -- 10 of 12 -- 11 constable to the QPS. The demotion necessarily diminishes the value of a long term commitment of police resources as investment in this officer. [48] Further, although Mr Francis was in plain clothes for seven years, he had not obtained his detective classification. [49] The community does have an investment in the resources represented in any QPS officer. Simply stating that the public has an investment in a police officer’s training does not make it an investment with value to the public and its confidence in the QPS. [50] Counsel for Mr Francis submitted that there is a balancing exercise in imposing a suspended dismissal. It involves an examination of whether anything is retrievable or salvageable for the investment of the public resources. He submitted that a suspension provides public recognition of the seriousness of the misconduct and, in the event of any further breach, an officer is subject to immediate dismissal. He submitted that Morier’s case43 indicated that the effect of an order for suspension of dismissal can be consistent with maintenance of appropriate standards and confidence in the QPS, including the principles of deterrence.44 In that case, however, the tribunal notes the misconduct related to a single incident, an aberration in an otherwise unblemished career.45 [51] Was the decision to suspend the dismissal unsupported by the mitigating factors? It is the observation of this tribunal that the learned Member essentially dismissed as insufficiently persuasive the mitigating factors that were placed before her yet she still suspended the dismissal contrary to her own reasoning. Her decision to suspend the dismissal was surprising given the context of her reasoning. [52] The circumstances of Mr Francis’ misconduct are so serious and over such an extended period of time that they overwhelm any mitigating factor and emphasise the unreasonableness of the suspension of the dismissal. The learned Member’s examination of the mitigating factors leading to her decision to suspend dismissal runs counter to all her preceding, appropriate findings as to the seriousness of the misconduct and the erosion of public confidence. No Member, apprised of the detailed circumstances of Mr Francis’ misconduct and in the necessary context of the significant public confidence requirements in the proper administration of the QPS, could have suspended his dismissal. Orders [53] The sanction imposed for Matters 1 and 3 is confirmed. [54] The sanction imposed for Matter 2 is set aside. 43 Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No.1 of 2003. 44 Ibid, at [15]. 45 Ibid, at [8]. -- 11 of 12 -- 12 [55] Anthony Richard Francis is dismissed effective from the date of this decision. -- 12 of 12 --