Crime and Misconduct Commission v Assistant Commissioner O'Regan & Anor [2013] QCAT 729

CITATION: Crime and Misconduct Commission v Assistant Commissioner O’Regan & Anor [2013] QCAT 729 PARTIES: Crime and Misconduct Commission (Applicant) v Assistant Commissioner Clement O’Regan Elizabeth Anne Marie Baldock (Respondent) APPLICATION NUMBER: OCR115-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 29 November 2013 HEARD AT: Brisbane DECISION OF: Senior Member Oliver DELIVERED ON: 6 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the respondent is confirmed. CATCHWORDS: Police misconduct – whether conduct alleged amounts to misconduct or breach of discipline – where alleged second respondent coerced the a complainant to withdraw complaint – whether evidence before the Assistant Commission supported the allegation – where differing versions of what was said to the complainant – whether words said by the second respondent taken out of context – where absence of specific relevant evidence as to conversations. Queensland Civil and Administrative Tribunal Act 2009 s 20 Crime and Misconduct Act 2001 s 219BA APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr M Copley QC instructed by the Crime and Misconduct Commission. -- 1 of 7 -- 2 FIRST RESPONDENT: Mr McLeod of counsel instructed by the Queensland Police Legal Officer SECOND RESPONDENT: Mr Gnech instructed by the Queensland Police Union Legal Group. REASONS FOR DECISION [1] Senior Constable Baldock has been a serving police officer for some 22 years. On 10 July 2011 she attended the Toowoomba hospital with another police officer, Constable Wright, to assist in a forensic examination of a female who had made a complaint to the police that she had been raped. Senior Constable Baldock was a plain clothes detective and was attached to the Toowoomba Child Protection Investigation Unit. She had considerable experience investigating complaints of this kind. The purpose of the examination was to gather evidence about the complaint. [2] Whilst at the hospital, and in the presence of Constable Wright, Senior Constable Baldock had a conversation with the complainant. The effect of which, it is contended by the applicant, was to convince the complainant to withdraw her complaint of rape. The complainant did withdraw the complaint and confirmed this in writing in Senior Constable Baldock’s official police notebook. [3] Constable Wright was a first year constable and as part of her training she had an interview with the Toowoomba District Education Training Officer sometime after this incident. During the interview she relayed the conversation between Senior Constable Baldock and the complainant. Although no official complaint was lodged by Constable Wright, the circumstance of the hospital incident was referred to the local Superintendant and ultimately Constable Wright was interviewed by the Ethical Standards Command. As a consequence of Constable Wright’s evidence and the evidence of the complainant, disciplinary proceedings were commenced against Senior Constable Baldock for potential misconduct. [4] As part of the internal disciplinary process Senior Constable Baldock was invited to undertake an Administrative Consensual Disciplinary Process (―ACDP‖). The purpose of the ACDP is to enable a police officer to accept responsibility for conduct so that the matter can be dealt with quickly with an appropriate sanction if the conduct is accepted. The ACDP Form A describes the purpose of the process is to provide a fair and timely resolution of complaints and to introduce a disciplinary management strategy which is swift, proportionate and decisive while adhering to the principals of natural justice. The Form A sets out the allegations that are made about the officer’s conduct to which the police officer can respond. The particulars of the complaint here are provided under the heading ―Matter No 1‖ on page 7 of the Form A. Here the summary of fault conduct was:- -- 2 of 7 -- 3 That on 10 July 2011 at Toowoomba you failed to demonstrate professional behaviour during a rape investigation in which you;  Spoke to a rape complainant in an inappropriate manner  Failed to adequately investigate a rape complaint  Failed to treat a rape complainant with respect and dignity at the Toowoomba Hospital.  Coerced a withdrawal of complaint from the rape complainant. [5] The document also classifies the conduct as ―misconduct‖. The maximum sanction that would be imposed if the police officer were to proceed with the ACDP process is a sanction of 1 penalty unit. This means that the maximum sanction that would be imposed, even if misconduct was substantiated, is 1 penalty unit. [6] Senior Constable Baldock elected to proceed with the ACDP process by signing the document on 1 April 2013 in which she ticked the box which said:- I accept responsibility for the alleged conduct, acknowledged the prescribed officer may decide this matter as proposed, however, wish to make a submission about the proposed classification of conduct and/or mitigation of the proposed sanction(s) which is attached; [7] There are two other boxes whereby the police officer can elect to accept the proposed classification of conduct and sanction, and the other box is to elect to decline to participate in the administrative consensual disciplinary process. [8] Therefore, when the matter came for consideration before the Assistant Commissioner Clement O’Regan he had to decide the category of conduct that is, whether it was misconduct or breach of discipline and once he made a decision he then had to decide the sanction to be imposed. He received submissions from Senior Constable Baldock and decided that the conduct amounted to a breach of discipline and imposed a sanction of Reprimand. [9] On 30 April 2013 the Crime and Misconduct Commissioner filed an application to review the decision of the Assistant Commissioner. Although the decision made was as a result of the ACDP process it is conceded that because the original ―charge‖ alleged misconduct then the Tribunal has jurisdiction under section 219BA of the Crime and Misconduct Act 2001 to review the decision it provides: (1) A reviewable decision means— (a) a decision made in relation to an allegation of misconduct against a prescribed person, …; or (b) a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) … that misconduct is proved against an officer. [10] The review therefore is under s 20 of the QCAT Act which requires the Tribunal to produce the correct and preferable decision by way of a fresh hearing on the merits. -- 3 of 7 -- 4 [11] I should also point out that the Form A also specifically informs the police officer that any decision made under the ACDP can be reviewed by the CMC. Factual basis for the complaint [12] The only document which sets out the factual circumstances surrounding the complaint made against Senior Constable Baldock is on page 3 of the Form A under the heading ―facts relevant to allegations‖. As I said, Constable Wright is a first year Constable who was in the room with Senior Constable Baldock and a complainant. Constable Wright told the Ethical Standards Command that the first words spoken by Senior Constable Baldock to the complainant were:- This is going to be hard and fast. You went out last night. You had too much to drink. You met this guy. You went home with him. You had sex. You woke this morning and regret it. [13] It is also contended that Constable Wright witnessed Senior Constable Baldock speaking to the complainant for a further half an hour with ―the focus of those conversations directed to obtaining a withdrawal of complaint.‖ [14] That version of what occurred was corroborated by the complainant who is reported as saying that Senior Constable Baldock made repeated reference to the complainant’s state of intoxication and the issue of consent and the difficulties in proving a rape complaint. The complainant also said that Senior Constable Baldock said ―sometimes people do silly things when they are drunk and this is a serious offence.‖ The complainant also said that she felt she did not believe that Constable Baldock did not believe that she had been raped. It is unclear who this information was given to. [15] After these conversations the complainant signed a withdrawal of the complaint noted in Senior Constable Baldock’s police notebook. At that point the rape investigation was terminated. No further medical tests were carried out to gather the type of evidence that might be relevant to a prosecution for rape. [16] By signing the consent to proceed with the ACDP process, Senior Constable Baldock is presumed to have accepted the evidence relied on by the Assistant Commissioner. However because she did not accept the classification of the conduct as being misconduct some evidence was provided by her in the submissions prepared on her behalf refuting the context in which the statements were made by her. Her version of what was said is slightly different both in words and context as follows:- Is it the case you have gone out and had a bit too much to drink, met a guy and gone home. Possibly had sex with him and woken up this morning and regretted having sex with him. If that is the case we as police need to know that now. -- 4 of 7 -- 5 [17] Having considered all that evidence, the Assistant Commissioner came to the view that the conduct of Senior Constable Baldock amounted to a breach of discipline rather than misconduct. [18] He made the following findings: Whilst I accept you were not solely responsible for the entire investigation, I do consider your actions to constitute failure to conduct a fair and unbiased investigation that resulted in relevant evidence in a rape allegation to be lost. I accept the versions of the complainant and informant with regard to the conversation between yourself and the complainant, in so far as the message received. I accept that on those versions your actions, words and demeanour appeared geared toward obtaining a withdrawal of complaint rather than gathering evidence or simply informing the complainant of the difficulties faced in proving such offences. I do, however, accept the submission made on your behalf that your intention was not such, and you did make some overtures to ensure evidence was secured prior to obtaining the withdrawal of complaint. I have had particular regard to the submissions made on your behalf in relation to the classification of the conduct. I accept the submission in part that the conduct can be appropriately classified as Breach of Discipline. I accept the inadequate investigation was not a deliberate attempt to pervert the course of justice and was rather a case of not optimally handling an interpersonal communication. I also accept that you now accept the shortcomings in your dealings in the investigation. [19] The CMC contend that when regard is had to the initial words spoken by Senior Constable Baldock, the fact that there was ongoing conversation for about a half hour confirming and perhaps reiterating the initial words used, or similar words with a view to dissuade the complainant from proceeding with the complaint, and the corroborative evidence of the complainant, the Tribunal should accept those facts as being the facts constituting the circumstances which gave rise to the instigation of the disciplinary proceedings. [20] Upon accepting those facts the only reasonable conclusion the Tribunal could reach is that it ought to be reasonably satisfied that Senior Constable Baldock engaged in conduct that is properly classified as misconduct. [21] It is submitted that Constable Wright had no sinister motive for providing the information to the District Education Training Officer. The information was not provided as a complaint about Senior Constable Baldock’s conduct, but just in the nature of a ―debriefing‖ as part of her overall training. Also there is no reason to doubt the complainant’s evidence as to what occurred whilst in the company of Senior Constable Baldock. [22] At face value the submission to how this evidence should be treated has substance. However there are some other disturbing features about the overall picture of what occurred. The evidence relied upon are two very short statements made by Senior Constable Baldock. The first when she initially spoke to the complainant and the second when she was discussing the matter with the complainant. However, Constable Wright said that Senior Constable Baldock spoke to the complainant for ―about half an hour‖ with a focus on having the complainant withdraw the complaint. There is no evidence before me as to the content of those -- 5 of 7 -- 6 further discussions, no statement or note provided by Constable Wright about what was said, nor is there any evidence as to when Constable Wright was first asked to recall the conversation. There is no evidence as to when she had the meeting with the District Education Training Officer. Similarly, there is no evidence as to when the complainant was first asked to recall what occurred during her time at the hospital with Senior Constable Baldock, nor is there any witness statement provided by her. [23] These observations are important firstly because the allegation of misconduct for a police officer is very serious; and secondly, because the statement as put by Constable Wright is challenged by Senior Constable Baldock both in terms of what was said and its context. It raises the question about which version is the more reliable. [24] Another feature of the investigation is the lack of evidence as to the role of a police officer in this situation, particularly an experienced detective. The references from Detective Senior Sergeant JR Hildred and Detective Senior Sergeant MC Howard demonstrate that Senior Constable Baldock is a very experienced detective. She has a thorough knowledge of legislation, policies and procedures in the investigation of sexual complaints. It would be surprising if a police officer with Senior Constable’s Baldock’s experience and being in the position that she was, even though she was not the investigating officer, did not discuss the incident with the complainant to gather more evidence, explain the evidence gathering processes and even the importance of the issue of consent in rape cases. These are all matters relevant to the investigation and she would have been in a better position to do that, by reason of her experience, rather than a first year Constable. [25] There is also an acceptance that Senior Constable Baldock took positive steps to preserve evidence and isolate witnesses so their evidence was not compromised even though she was not in charge of the investigation. This does seem inconsistent with the notion that she was at pains to garner a withdrawal of the complaint by the complainant. [26] Although the conversation that transpired, on both versions, involve some reality checking it is difficult to accept that the Senior Constable spent the whole 30 minutes trying to talk the complainant out of proceeding with the complaint. This is particularly so when there is no evidence of what was actually said. [27] Presumably the Assistant Commissioner is aware of the operational requirements of officers in these situations which is typically why, in accordance with Aldrich v Ross, it is important to have regard to the Assistant Commissioner’s decision. [28] The bare facts as set out in the ACDP, Form A, would suggest that the Senior Constable’s conduct might be regarded as misconduct but in the absence of any further specific statement or direct evidence as to what occurred during the 30 minute discussion, her evidence as to what she said to the complainant, her knowledge of the operational procedures, and -- 6 of 7 -- 7 the evidence by her referees and overall context in which the conversations occurred, I am not satisfied that I should only accept the evidence of Constable Wright and the complainant to the exclusion of Senior Constable Baldock. [29] The CMC submitted that if I accept without reservation the statements of Senior Constable Baldock when she first spoke to the complainant then that conduct would amount to misconduct. It is submitted that it is an extraordinary way to start a conversation particularly when she was not the investigating officer and therefore the only purpose of the statement was to have her withdraw the complaint. That submission is probably correct, however I am not prepared to accept that evidence without reservation. [30] I am more inclined to have regard to the opinion of the Assistant Commissioner and agree that there was no deliberate attempt to pervert the course of justice and it was rather a case of not optimally handling the interpersonal communication. He also had the benefit of the inherent knowledge of operational requirement so police in the position the Senior Constable found herself. There were shortcomings in the conduct of the Senior Constable and she has accepted this to be the case. For these reasons I am not persuaded that the conduct amounts to misconduct. [31] Given these findings I also do not see any reason to interfere with the sanction imposed having regard to the officer’s work history, the classification of the conduct and the time that has elapsed since the issue first arose. [32] I propose to confirm the decision of the Assistant Commissioner. -- 7 of 7 --