Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477

CITATION: Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Deputy Commissioner Barnett, Queensland Police Service (First Respondent) Anthony Richard Francis (Second Respondent) APPLICATION NUMBER: OCR136-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 30 May 2013 HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 2 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Any party wishing to make submissions about the form of the proposed orders as set out in paragraph [97] of these reasons for decision must file and serve them by 4.00pm on 20 September 2013. 2. Deputy Commissioner Barnett must file and serve any application for a non-publication order by 4.00pm on 13 September 2013. 3. Any other party must file and serve any submissions in response to any application for a non-publication order by 4.00pm on 20 September 2013. 4. Unless otherwise ordered, any application for a non-publication order will be determined on the papers without an oral hearing not before 23 September 2013. -- 1 of 23 -- 2 CATCHWORDS: POLICE DISCIPLINARY REVIEW- SANCTION- where no review on substantiation of charges of misconduct-whether decision-maker took into account irrelevant factors in mitigation when determining sanction - whether purposes of discipline achieved by sanction imposed- where dismissal imposed but suspended Crime and Misconduct Act 2001 (Qld) ss Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss17-20 Police Service (Discipline) Regulations 1990 (Qld) Hardcastle v Commissioner of Police (1984) 53 ALR 593 Police Service Board v Morris (1985) 156 CLR 397 Aldrich v Ross [2001] 2 Qd R 235 Deputy Commissioner Ian Stewart v Dark [2012} QCA 228 McKenzie v Acting Assistant Wright [2011] QCATA 309 CMC v Deputy Commissioner QPS and Chapman (No 2) [2010] QCAT 636 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr A J MacSporran, Senior Counsel, instructed by the Deputy Official Solicitor, Crime and Misconduct Commission FIRST RESPONDENT: SECOND RESPONDENT: Ms MA Johnston of QPS Official Solicitor Mr SW Zillman of Counsel, instructed by Slater & Gordon, Lawyers REASONS FOR DECISION [1] In a decision of 4 April 2012, Constable Francis was found by Deputy Commissioner Barnett to have engaged in misconduct on numerous occasions between 2006 and 2010. By way of summary, overall sanction (although separate sanctions were imposed for each of three charges), imposed was 12 months suspension from the service; reduction in pay point from constable 1.5 to 1.1. Constable Francis was also transferred to a uniform (from a non-uniform) position in another Police District and -- 2 of 23 -- 3 placed in the First Year Constable Program (with accelerated pay-point progression upon satisfactory performance). [2] Constable Francis was suspended from duty on 19 August 2010. He had some 11 years of service in the QPS as a constable at the time he was suspended. The actual period of suspension served by him was from 20 August 2010 to 4 April 2012, and so in excess of the 12 months sanction imposed. [3] The CMC has applied to the Tribunal for review of the decision-maker’s decision about the sanction imposed on Constable Francis. [4] The CMC submits that the appropriate sanction is dismissal. The decision- maker submits that the sanction imposed by him represents the correct and preferable decision. Constable Francis supports the sanction imposed. In the alternative, he submits that if dismissal is imposed that it should be suspended.1 [5] Dismissal is the most serious sanction that could be imposed. It is common ground that the decision-maker’s approach, to the effect that the sanction of dismissal is warranted only if the purpose of discipline can not be achieved by any other sanction,2 is the correct approach. The review process [6] Pursuant to sections 219G and 219H of the Crime and Misconduct Act 2001 (CMC Act) and sections 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Tribunal’s function on the review application is to make the correct and preferable decision on the evidence which was before the decision-maker.3 An error need not be identified in the decision reviewed for the Tribunal to make a different decision.4 [7] The decision must be the Tribunal’s independent decision. It has been held that it may be appropriate to give considerable weight to the views of the Commissioner about sanction in some circumstances.5 There is a controversy between the parties about the circumstances in which this may be appropriate. This is discussed in the following paragraphs. [8] The purpose of police disciplinary proceedings in Queensland is set out in Regulation 3 of the Police Service (Discipline) Regulations 1990 (the Regulations), which sets out the objects of the regulations, as follows: (a) provide a system of guiding, correcting, chastising and disciplining subordinate officers; 1 CMC Act s 219L provides for suspension of sanction imposed. 2 Section 21(2) documents, Part A, page 30. 3 However, leave may be given to adduce fresh evidence: s219H CMC Act. 4 CMC v Deputy Commissioner QPS and Chapman (No 2) [2010] QCAT 636, [1-12]; Aldrich v Ross [2001] 2 Qd R 235 at [37]. 5 Aldrich v Ross [2001] 2 Qd R 235, at [42,43,45]. -- 3 of 23 -- 4 (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. [9] The purpose of police discipline is not punishment: it is to protect the public, maintain proper standards and protect the reputation of the service.6 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 that internal discipline is the primary means of ensuring individuals do not jeopardise public confidence.7 [10] It is apparent that several purposes are to be achieved through the disciplinary process, with the overall purpose of maintaining and promoting public confidence, as well as, internal police force standards, confidence and discipline. Accordingly, the purpose has aspects which are external to the police service and others which are internal to it. [11] The CMC submitted that the Tribunal is better placed than the decision- maker to assess whether a decision to dismiss Constable Francis is necessary to maintain public confidence in the police service. No authority was cited in support of the argument. Constable Francis argues that it is not supported by the principles established in Aldrich v Ross8 and should be rejected. [12] As I understand it, the CMC seeks to draw a distinction between matters required for public confidence and matters required to maintain internal police service discipline and confidence. It suggests that although the latter may be within the expertise of the decision-maker, the Tribunal is better placed to assess what is required to maintain public confidence in the police service. Of course, in determining sanction, the decision-maker must also have regard to what is required to maintain public confidence, and must factor that in to the sanction imposed. [13] Principles were established in Aldrich v Ross which concerned the review process in the then Misconduct Tribunal for police disciplinary matters (and which has been held applicable in the Tribunal despite statutory changes9). Thomas JA (as he then was) said: There is considerable force in the observations of Chesterman J… concerning the role of the Commissioners of the Police Service, their managerial role and their knowledge of the needs of the police force…However, it does not follow that a 6 Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597. 7 Police Service Board v Morris (1985) 156 CLR 397 at 412. 8 [2001] 2 Qd R 235. 9 CMC v Deputy Commissioner and Chapman [2010] QCAT 564. -- 4 of 23 -- 5 Commissioner would bring to bear the same perception of public interest as that of an outsider. 10 In the following paragraph, he said: …..the provision of a system which permits one external public review of the disciplinary decision is not only the protection against a wrong or unacceptable decision, it is also the provision of a source which can be expected to bring a perspective to bear from the public point of view.11 He continued: That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal disciple. It would be appropriate ….to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.12 [14] It seems to me that the comments of Thomas JA about the Commissioner’s views, to which considerable weight might appropriately be accorded relate to what is required for internal management and discipline, rather than matters related to public confidence. Whether it is likely to be clear, how public confidence as opposed to internal discipline and confidence, has been factored in to sanction in a particular case by a decision-maker is another issue. [15] That said, specifically, Thomas JA considered the independent review process brought the public perspective to police disciplinary decisions. [16] I do note that Thomas JA said in a later paragraph: If the Misconduct Tribunal has the same view of the facts and inferences as the original tribunal, it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction…but the ultimate determination must be that of the Misconduct Tribunal. 13 [17] It is tolerably clear that Thomas JA was in using the word ‘again’, referring back to the principle earlier articulated by him. That earlier articulation is limited to giving due regard to matters relating to managerial requirements relating to the internal aspect of purposes of disciplinary proceedings. [18] The principles which emerge from Aldrich v Ross do not go so far as to suggest that the Tribunal is better placed than the decision-maker to assess matters related to public confidence. However, they do not seem to me to support a contention that the views of the decision-maker in determining what is required for maintenance of public confidence might appropriately be given considerable weight. It seems to me that a Tribunal is entitled to form its own conclusions on the review about what is required for public confidence. This interpretation is consistent with brief 10 Aldrich v Ross [2001] 2 Qd R 235 at [42], emphasis added by me. 11 Aldrich v Ross [2001] 2 Qd R 235 at [43], emphasis added by me. 12 Ibid, emphasis added by me. 13 Aldrich v Ross [2001] 2 Qd R 235 at [45]. -- 5 of 23 -- 6 observations previously made by the President of the Tribunal, Justice Wilson. 14 [19] It is not controversial that a Deputy Commissioner may be considered to have expertise in the managerial requirements of the police force. The charges, admissions and the sanction imposed by the decision- maker [20] The diverse and numerous disciplinary charges, as well as the further and better particulars, brought against Constable Francis are set out in later paragraphs. The charges are referred to as Matters 1, 2 and 3. [21] Constable Francis conceded that various of the charges could be substantiated.15 In summary, he conceded charges 1(a), 1(b), 1(c) (although he disputed /had no recollection that Sergeant D had told him that use of ‘blue light taxis’ was not acceptable) and 2(c), 3(a) and 3 (b). [22] In relation to 2(b), Constable Francis, while admitting the conduct, disputed that the charge could be substantiated. Regarding 2(a), 2(b) and 2(d) his plea was that the matter could not be substantiated. [23] Every charge was found by the decision-maker to be substantiated. [24] The individual sanctions imposed by the decision-maker in relation to each of the three ‘Matters’ is summarised as follows: Matter 1: a reduction in salary from Constable pay point 1.5 to Constable pay point 1.1; transfer to the Logan District within South Eastern Region in a uniform position and placement in to the First Year Constable program. Eligibility to progress one pay point every 6 months dependant only on obtaining a satisfactory PPA for each period. Matter 2: Suspension from the Service for a period of 12 months. During this period, no entitlement to any salary and entitlements, nor accumulation of any form of leave. The period of suspension pursuant to this sanction took effect from 20 August 2010 until 19 August 2011. Otherwise, the same as for Matter 1. Matter 3: The same as for Matter 1. [25] The 3 matters under which charges were brought for improper conduct may, in broad-brush, be described as follows. Matter 1 includes 3 charges relating to use of police vehicles and other Queensland Police human resources for non-official purposes. Matter 2 includes 4 charges relating to generally inappropriate conduct relating to performance as a police officer. 14 McKenzie v Acting Assistant Wright [2011] QCATA 309 at [42]. 15 Section 21(2) Documents, Volume 1 Part A, page 10. -- 6 of 23 -- 7 Matter 3 includes 2 charges specifically relating to conduct concerning discipline matters. These charges concern diverse aspects of conduct. [26] At this stage, I turn to consider the charges and further and better particulars. I make the observation that the CMC concedes that none of them in isolation warrants dismissal. [27] I turn to consider Matter 1. Matter One That on various dates between the 6th day of November 2009 and the 2nd day of May 2010 at the Gold Coast your conduct was improper in that you: (a) whilst on duty, inappropriately used a police service vehicle to transport two civilian females; (b) whilst off duty, were transported home in a police service vehicle and subsequently urinated on the back of the police vehicle when it was stopped on the side of the road; (c) whilst off duty, inappropriate requested Plain Clothes Constable S to transport you in a police service vehicle. ........ Further and better particulars ……. In relation to Matter One (a)  on the 7th of November 2009 you were rostered to perform duty from 2pm until 10pm at the Gold Coast District, Southern Investigation Group;  on the 7th of November 2009 you received a telephone call from TN who requested to be picked up from the Coolangatta Airport;  at approximately 3.40pm you attended the Coolangatta Airport in a Queensland Police Service (QPS) vehicle and drove TN and her mother to their residence. You admitted that the transport was not related to any QPS duties; In relation to Matter One (b)  on the 11th of November 2009 you attended a function at the Burleigh Heads Police Station;  at approximately 11pm a number of persons including yourself and a member of the public received a transport in a police service vehicle; -- 7 of 23 -- 8  the first person to be dropped off was Detective Senior Constable A. When the police vehicle stopped outside his residence, both you and Detective A alighted from the vehicle and urinated onto the back of the vehicle;  the next day you spoke to Detective Senior Constable A during a telephone call and joked about the incident. In relation to Matter One (c)  on the 3rd of March 2010 Inspector D spoke to you and advised you that you must act professionally both on and off duty. Inspector D recalled telling you, sometime before the 23rd of April 2010, that ‘blue light taxis’ were no longer acceptable;  on the 1st of May 2010 you were off duty and at the residence of Detective Senior Constable T;  at approximately 9.45pm on the 1st of May 2010 you made a telephone call to Plain Clothes Constable S using Detective T’s mobile telephone and requested a ‘blue light taxi’ into town. On this day S was rostered to work from 10pm until 6am;  at approximately 10.15pm on the 1st of May 2010 you again telephone Plains Clothes Constable S and requested a ‘blue light taxi’ into town. S told you that he and other staff were busy and declined your request. [28] Matter 1(a) concerned the transporting by Constable Francis of 2 members of the public from the Coolangatta airport to their residence, for non-official purposes. This matter reveals a willingness to assist an acquaintance through the use of public resources, namely police human and property resources. It is clearly inappropriate and an improper use of public resources for non-official purposes, but in the scheme of disciplinary transgressions is at the less serious end of the continuum. [29] Matter 1(b) involved Constable Francis urinating on the back of a police vehicle while off-duty. Constable Francis said that he urgently needed to go to the toilet and urinated on the back number plate of the vehicle when it was stopped on the street. The CMC says it is relevant that Constable Francis joked about the event the next day in a telephone call with another officer who also urinated on the back of the vehicle when it was stopped outside the home of that other officer. [30] The CMC submits that urgency of the need to urinate is not an explanation for Constable Francis urinating on the vehicle. It submits that the behaviour and later laughing about it, demonstrates a complete disrespect for the police service. I accept that it is undesirable behaviour, which as the decision-maker pointed out in his reasons for decision, would also appear to constitute an offence under the Summary Offences Act 2005. [31] I do not accept that having a full bladder is an explanation for urinating on the (number plate of the) police vehicle, as opposed to, for example, -- 8 of 23 -- 9 urinating on the ground behind the vehicle. The act itself was committed after Constable Francis had been drinking when his inhibitions may have been reduced and his judgment impaired. However, his discussion the following day with another officer was not under the influence of alcohol. The decision-maker refers to the later reference to the incident as ‘flippant.’16 [32] In my view, the behaviour is more serious. Police officers are responsible for charging members of the public with offences under the Summary Offences Act 2005. This means that members of the public may reasonably be expected to be charged with urinating in public by police officers under that legislation. [33] Although there was no property damage occasioned by the behaviour, the attitudes that it reveals, are however 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. [34] Further if a member of the public urinated on a police vehicle, it would suggest disrespect for the police service generally and what it stands for. When it is done by a serving police officer, I accept, as the CMC suggests that its shows a significant disregard for the police service. If it occurred as unusually uninhibited behaviour because of alcohol, remorse or embarrassment might reasonably be expected the following day. I infer from the joking behaviour the following day that this was not the case. On the contrary, it seems to have been the source of some amusement to Constable Francis. [35] Matter 1(c) involved attempts by Constable Francis to have other officers provide him with a ‘blue light taxi’, that is, provide him with transport in a police vehicle when he was off-duty. The decision-maker accepted in considering substantiation of the charge of misconduct that he had been told by Inspector D on 3 March 2010, that the practice of using ‘blue-light taxis’ was not acceptable. Constable Francis’ evidence was that he could not recall having been spoken to. That aside, he was under scrutiny and required to attend hearings of the CMC in March and April 2010, which should have made him mindful of behavioural requirements. Despite that, on 1 May 2010, Constable Francis, while off-duty, twice requested another constable transport him in a police vehicle. [36] The CMC submits this shows a complete disregard for appropriate use of police resources. The decision-maker acknowledged that the practice had been commonplace and even encouraged in the past,17 but was no longer acceptable and was the basis for disciplinary action. Further, he said the conduct ‘demonstrated an inappropriate and even arrogant disregard for the standards of behaviour expected by the Service.’18 I agree. In the 16 Section 21(2) Documents, Part A, page 104. 17 Section 21(2) documents, Part A, page 83. 18 Section 21(2) documents, Part A, page 84. -- 9 of 23 -- 10 context of a modern accountable police service, such behaviour has no place. [37] It is not apparent from the material before me when the internal QPS attitude to the practice changed and it was communicated to officers generally that it was unacceptable. It seems to me that in the post- Fitzgerald era of policing that this would have been a significant number of years ago. However, it appears it was not the case in the Gold Coast District until more recent years. In any event, it is clear that the practice was unacceptable at the Gold Coast at or by the time Sergeant D spoke to Constable Francis about it in March 2010. [38] I infer that Constable Francis was unconcerned about directives from his supervisor. Clearly he intended to continue with his previous practice if he could convince another officer to show a similar disregard for the authority of Sergeant D and explicit QPS requirements. This disregard for the supervisory authority of an Inspector is once again of concern. [39] I agree generally with the decision-maker’s conclusions that the Matter 1 conduct demonstrates disregard for the proper use of police service resources, both vehicles and human resources. Further, I consider matter 1(b) in particular reveals some troubling attitudes which are 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. [40] I turn to Matter 2. Matter Two That on various dates between the 2nd day of July 2006 and the 9th day of April 2010 at the Gold Coast your conduct was improper in that you: (a) inappropriately performed your functions as a police officer where there was an apparent conflict between your duty to act impartially and acting in the interests of your acquaintance; (b) inappropriately investigated a complainant of break and enter for a dwelling in which you resided and subsequently arrested a suspect for that offence as well as assault police; (c) inappropriately accessed and/or released Queensland Police Service information; (d) inappropriately discussed details of Crime and Misconduct coercive hearings with MJ. …….. Further and better particulars -- 10 of 23 -- 11 ….: In relation to Matter Two (a)  PJ was the owner of a Gold Coast night club. PJ was your acquaintance who gave you free drinks and free entry into his night club;  on the 4th of July 2006 an employee of PJ’s contacted you and reported a limousine as stolen. Your enquiries revealed the vehicle was subject of a civil dispute between PJ and a third party who had leased it. You caused a crime report to be entered and the vehicle to be recorded as a stolen vehicle;  on the 9th of July 2006 the vehicle was seized as a consequence of your stolen vehicle report. Despite some advice to the contrary, you returned the vehicle to PJ without complying with Service police relating to disputed property;  after asking the third party to take part in an interview, you took no further action to finalise the investigation. In relation to Matter Two (b)  on the 6th of October 2006 your residence was broken into and property belonging to your flat mate was stolen;  you involved yourself in the investigation into this matter including locating a suspect, entering a dwelling and conducting an emergent search for stolen property and seizing property;  you arrested the suspect and charged him with breaking into your residence;  you also assisted in the arrest of the suspect for assaulting police as a consequence of an altercation during the search. In relation to Matter Two (c)  an audit of QPRIME transactions revealed that you conducted searches and accessed records relating to a number of persons;  the QPRIME searches and access were not for a purpose related to your official duties;  on the 20th of March 2009 you accessed QPRIME entries relating to WN, BS and WB;  on the 29th of March 2009 you accessed QPRIME entries relating to Plain Clothes Constable N;  on or about the 22nd of April 2009 you accessed QPRIME entries relating to GV and released some of the details to her;  on the 24th of October 2009 you released details of a rape investigation to GV; -- 11 of 23 -- 12  on the 29th October 2009 you accessed QPRIME entries relating to KM;  on the 11th November 2009 you released details of an unlawful wounding investigation to EL;  on the 17th of November 2009 you accessed QPRIME entries relating to MN and released some of the details to her;  on the 14th of December 2009 you accessed QPRIME entries relating to Plain Clothes Senior Constable S;  on the 23rd of December 2009 you accessed QPRIME entries relating to DM and GS;  on the 1st of January 2010 you accessed QPRIME entries relating to FR;  the information released to GV and EL was not for any reason related to your official duties; and  the information you released was not authorised under Section 10.2 of the Police Service Administration Act. In relation to Matter Two (d)  on the 10th of March 2010 you attended CMC hearings as a result of being served a subpoena to attend. As part of the proceeding you were informed that there was a non-publication order in place for the proceedings by virtue of Section 180 of the Crime and Misconduct Act.  on the 24th of March 2010 you had a phone conversation with MJ and subsequently met her the next day. On that day you discussed a text message from her which was stored on your phone;  on the 31st of March 2010 MJ attended CMC hearings as a result of being served a subpoena to attend. As part of the proceeding she was informed that there was a non-publication order in place for the proceedings;  during the CMC hearing MJ was questioned about a text message she sent to your phone which included the words ‘… wish u were here, would love to have a chat … a little giggle … and a quiet snort … (I probably shouldn’t write that in a txt should I!)’;  on the 8th of April 2010 you met MJ at the Coolangatta Airport Tavern. During the meeting you were heard to discuss with her the need to get your stories straight. MJ was also heard to jokingly say that she will have to snort every time she laughed now;  you and MJ re-attended the CMC hearings on the 21st of April 2010 and the 8th of June 2010 respectively. -- 12 of 23 -- 13 [41] Matter 2(a) essentially concerns making a stolen vehicle report, and later seizure of a motor vehicle owned by an acquaintance of Constable Francis (who regularly provided him with free nightclub entry and free drinks) and the return of the vehicle to the acquaintance. The decision- maker found this was done despite Constable Francis’ awareness that there was a civil dispute about who was entitled to possession and despite advice to make application to a Magistrate for ownership to be determined. The decision-maker concluded that the behaviour was contrary to established, written procedure and that ‘a reasonable person would conclude that your private interests have interfered with the proper performance of your duties’.19 In considering sanction, he said that inconsistently with a police officer’s duty to act impartially, the incident could give the impression that Constable Francis received favourable treatment in return.20 [42] The CMC submits that, in effect, Constable Francis was ‘doing a favour’ for his acquaintance by seizing the vehicle and then returning it to him, instead of taking seriously his responsibility as an officer to act impartially. In my view, the conduct does give the impression that he was acting partially in exchange for favourable treatment (that is, free drinks and nightclub entry) from an acquaintance. 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. [43] Matter 2(b) involved the investigation by Constable Francis of a break- and-enter at his own residence, and stealing of property belonging to a housemate. He was involved with other officers in the subsequent arrest and charging of the suspect, although he was not designated as the arresting officer for these charges. Although Constable Francis admitted the conduct he did not admit it was misconduct. [44] Again the issue relates to conduct in which Constable Francis’ personal interests appear to be in conflict with his responsibilities as an officer. He was involved in the arrest of an offender, regarding the activities of whom, he personally could have made a complaint following the break and enter. As the decision-maker observed, if the matter had been contested in court, his independence may have been questioned and led to the offender escaping conviction. Again, I consider this constitutes a serious error of judgment in the performance of official duties. [45] In relation to Matter 2(c), Constable Francis conceded inappropriately accessing and release of details from the police database, QPRIME. There were numerous instances of accessing the records for non-official purposes for diverse reasons. For example, checking on his father’s date of birth to plan a birthday celebration; assisting an associate with details 19 Section 21(2) documents, Part A, page 88-89. 20 Section 21(2) documents, Part A, page 88-89,104-105. -- 13 of 23 -- 14 for a job application; checking on details about girlfriends, past or current, or their associates. [46] The decision-maker found that the conduct was misconduct. However, he observed that there was nothing to suggest that on any occasion it was done for any unlawful purpose. QPRIME does contain information which is not publicly available and which is to be accessed only for official purposes. I consider that 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. Once again, I infer from Constable Francis’ actions an attitude of disregard for QPS requirements but also expectations of members of the public about the manner in which information held about them will be used and accessed. [47] Matter 2(d) involved discussing details of a CMC hearing with another officer, MJ, and questions she may face, in the presence of a civilian. The CMC submits that it has an aspect of collusion about the conduct, but submits that it is in any event very seriously inappropriate behaviour. There was a non-publication order in place in the CMC proceedings, although in substantiating the charge the decision-maker did not find that Constable Francis had breached it as there was no evidence that he directly disclosed what was said during the hearings in which he was present. [48] The charge was not admitted, which I accept as the CMC submits, suggests lack of insight by Constable Francis into the inappropriateness of the conduct. Further, as the decision-maker found, the circumstances were aggravated by having the conversation within earshot of a third person who was aware that both Constable Francis and MJ were police officers and under investigation by the CMC. Once again, I consider that behaviour of this type has the potential to seriously undermine public confidence in the police service. [49] 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. [50] I now consider Matter 3. Matter Three That on various dates between the 1st day of November 2006 and the 16th day of October 2009 at the Gold Coast your conduct was improper in that you: (a) engaged in an act of reprisal by arranging for a can of dog food and a dog bowl to be given as a ‘secret santa’ present to another police officer who you suspected of reporting discipline matters to a senior officer; -- 14 of 23 -- 15 (b) failed to report misconduct that you should have reasonably suspected had occurred. …….. Further and better particulars …….. In relation to Matter Three (a)  you and Senior Constable T believed that another officer had reported each of you to senior officers for separate incidents, of suspected misconduct. Because of this belief, the two of you subsequently decided to purchase the dog food and bowl as a secret santa gift for him;  a can of dog food and a dog bowl was purchased and gift wrapped. The gift was subsequently given to the officer during the Gold District, Northern Investigative Group Christmas party in 2006;  the Christmas party was attended by numerous police officers as well as partners;  during a disciplinary interview into the matter you stated that you ‘don’t have a lot of sympathy for MT in light of the allegations that he’s made against me’. In relation to Matter Three (b)  on the 7th of October 2009 a search warrant was executed on premises occupied by ER;  on the 15th of October 2009 you spoke with ER in a telephone call that was intercepted and recorded by virtue of a warrant issued under Section 46 of the Telecommunications (Interception and Access) Act 1979 (Cth);  during the call ER informed you that he had been given details by the Constable D of the criminal history of a male person. ER also stated that D had read details of a complaint which confirmed in his mind that this male person had supplied drug information which led to the search warrant on his premises;  you took no action to report the suspected misconduct by D relating to disclosure of information and identification of informants. [51] Matter 3(a) involved Constable Francis giving dog food and a bowl as a secret Santa gift to another officer who had been identified as responsible for reporting of some instances of misconduct. Although the behaviour was admitted by Constable Francis, he sought to downplay his role in the organisation of the gift. He said he only delivered it. His co-accused, whose version of events was accepted by the decision-maker over -- 15 of 23 -- 16 Constable Francis’ version, said they had both been involved in the planning of it. The decision-maker considered it significant that Constable Francis had been prepared to implement it, when no other person was prepared to. [52] The decision-maker considered that the conduct demonstrated an archaic and now unacceptable attitude towards covering up misconduct of colleagues, which is contrary to expectations in a modern and accountable police service. I agree with this. 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. [53] Matter 3(b) relates to the non-reporting by Constable Francis 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. As referred to earlier, section 7.2 of the Police Service Administration Act 1990 imposes a duty to report misconduct. The decision-maker found that he had failed to report misconduct that he should reasonably have suspected had occurred. [54] The CMC submits that matter 3(b) is a particularly serious example of misconduct, since it illustrates an awareness of a serious breach of the law by another officer which he failed to report. It was submitted for Constable Francis that ‘while the second respondent was aware of all the relevant facts he had not at the relevant time turned his mind to the issue.’21 [55] The decision-maker does not go so far as to find Constable Francis was aware of a serious breach of the law, finding instead on substantiation, that he should reasonably have suspected the breach. The transcript of the interview between investigators and Constable Francis,22 reveals that Constable Francis was surprised by the suggestion that he should have reported the other officer’s behaviour, and was more focused upon what he personally did when he was approached by the person informed upon. He says that he could not be sure where the information came from that the other officer disclosed about the informant. [56] It is clear to me that the decision-maker was correct, Constable Francis, an experienced constable with over 10 years of service at that stage, should reasonably have suspected misconduct. In reality, it appears he did not turn his mind to the possibility, and so can not be said to have had an actual awareness of a serious breach of the law. Instead, I infer obliviousness to what for a reasonable person with Constable Francis background and experience should have been obvious. Further, I infer 21 Submissions of Constable Francis filed 2 April 2013, paragraph 20. 22 See Section 21(2) documents, Volume 1B, pages 000085 to 000091. -- 16 of 23 -- 17 from this apparent obliviousness, a failure to have regard to QPS requirements. Why the CMC says dismissal is appropriate [57] The CMC submits that the extent of the misconduct engaged in (especially matter 3(b)), and the purpose of the discipline regime as articulated in the Police Discipline Regulations requires that dismissal be imposed. [58] Although acknowledging that the charges individually do not warrant dismissal, it points to misconduct over a significant period of some four years which it submits demonstrates Constable Francis’ inability to subordinate his interests to the duty owed to the public. It says that in combination the various instances of improper conduct which is the subject of charges demonstrate an attitude which displays an unfitness to continue to serve. [59] It argues that regard should be had to the chronology of the misconduct and the lack of insight and attitudes it reveals. In particular, it argues that matter 3(b) which relates to the non-reporting by Constable Francis of misconduct of another officer in disclosing the identity of (and thereby potentially endangering the safety of) an informant, is the most serious of the charges. As discussed earlier, I do not accept that Constable Francis was aware of the serious breach of the law alleged by the CMC. It submits that the compromise of an informant would deter persons from giving information to police, which adversely affects the ability of the Police Service to perform its functions of detecting criminal activity and /or protecting the public. [60] As discussed earlier, it argues that the Tribunal is better placed to assess whether dismissal is necessary, to maintain public confidence. It submits that the Tribunal should conclude that Constable Francis’ continued presence in the Service would not promote or maintain public confidence in it. It argues that the history of improper conduct shows that even once he had been questioned about suspected misconduct and warned by Sergeant D about some behaviour in March 2010, he engaged in misconduct in May 2010. [61] It further argues that the decision-maker took into account irrelevant matters in mitigation, namely association with people in the night club industry and environmental factors at the Gold Coast uncovered in Operation Tesco. [62] In terms of mitigating factors, the CMC conceded at hearing that the factors relied upon by Constable Francis in mitigation (which are set out below) were generally appropriate, except to the extent that they sought to downplay his role in events. Specifically, the CMC argues that although Constable Francis has since complied with the orders made by the decision-maker, that this is not a factor in mitigation. -- 17 of 23 -- 18 [63] Constable Francis submits in response that the charges do not relate to every year between 2006 and 2010. He submits that the sanction imposed is, in effect, the harshest that could be imposed, short of dismissal. He argues that the decision-maker did not take environmental factors into account as a mitigating factor, but rather that he said they mitigated the need to impose the sanction of dismissal. He also points to his impressive references since taking up duty at Logan. [64] In respect of mitigating factors, Constable Francis argues that at the time of the proceedings, he had not previously been found to have committed misconduct. He also says that no further matters of misconduct have arisen; that there was no suggestion of corrupt practices or benefits provided to him; and that the CMC report into Operation Tesco identified lack of supervision and guidance, suggesting that an improvement in the quality of supervision was required. Further, he says that in respect of some charges he acknowledged the charges and otherwise did not significantly challenge the facts concerning the other charges. He argues that he demonstrated a level of insight into his conduct and expressed a commitment to the Code of Conduct governing the conduct of police officers. Finally, he submits that in most cases others were aware of the misconduct and did not report it or seek to counsel him against the behaviour. [65] The Deputy Commissioner in his reasons for decision said he was mindful of the need to send a clear message to other police officers and the need to maintain public confidence. He observed that dismissal would achieve both.23 However, he said that to impose dismissal he must be satisfied that the purpose of discipline could not be achieved by other means. He went on to say that he needed to balance this with ‘the specific circumstances surrounding these matters which mitigate the need to impose the ultimate sanction…. As I have previously mentioned, there were environmental factors of the Gold Coast District associated with your behaviour. Also, some of your behaviour is linked to your associations with people involved in the Gold Coast nite club industry.’24 [66] In his reasons for decision, the decision-maker acknowledges that the behaviour came to light as a result of Operation Tesco conducted by the CMC in 2009 and 2010 which identified long-standing problem behaviours and inadequate supervision on the Gold Coast. He says the report concentrated on the areas of concern rather than behaviour of individual officers. While acknowledging an apparent connection, the decision-maker observed that this does not relinquish personal responsibility.25 [67] The Tribunal was not provided with a copy of the report from Operation Tesco. Clearly, the decision-maker was obliged to provide it under s21(2) of the QCAT Act. It is also a document with which the decision-maker was clearly familiar and had regard to in some way. It is therefore a document 23 Section 21(2) Documents Part A, page 102. 24 Section 21(2) Documents Part A, page 103. 25 Section 21(2) documents Part A, page 101. -- 18 of 23 -- 19 which may be relevant to the Tribunal’s review of the matter, since it was given some prominence by the decision-maker in his reasons for decision. That said, the report is publicly available and I have had access to it. The report relates to the factors to which the decision-maker referred, his treatment of which is the source of some contention as earlier discussed. For reasons which will become clear, I do not consider it relevant. [68] Constable Francis submits that the decision-maker merely explained that the environmental factors and night club associations mitigated the need to impose the sanction of dismissal. This is a fair summary of what the Deputy Commissioner said.26 But with respect to the Deputy Commissioner, this endeavour to cast his consideration of this issue in a light which suggests it was not treated as mitigating is not compelling. On a fair reading of his reasons for decision, they were taken into account in mitigation. [69] Is individual misconduct to be treated somehow differently than it might otherwise be in the context of organisational issues or inadequacies and/or associations with people in the night club industry? [70] It is well-recognised that mitigating factors may be taken account in determining sanction. I am not aware of any decision which indicates that environmental or systemic issues may be properly included as a mitigating factor, nor as mitigating of the need to impose a harsher sanction. I have not been referred to any. [71] Are the organisational shortcomings and night club industry associations relevant? [72] I appreciate that QPS organisational issues at the Gold Coast did not support appropriate behaviours and the QPS must make changes to address identified issues. Further, I note that Constable Francis as a result, it seems, of his duties knew people in the night club industry in the area. However, I agree with the decision-maker’s observation that these issues can not absolve officers from personal responsibility.27 [73] The Full Court recently made comments about the relevance of the context in determining whether behaviour was misconduct in Deputy Commissioner Ian Stewart v Dark, 28 In that case it was considering whether dishonesty in a police officer’s private life will constitute misconduct, rather than, as here, sanction in the context of the environmental factors identified. The Full Court observed that the ‘nature of the act and the circumstances in which it took place must be considered with a view to determining whether it reveals such a lack of integrity’ that it substantially erodes the trust and confidence that the public and colleagues are entitled to expect. 29 It said: 26 Section 21(2) Documents Part A, pages 102-103. 27 Section 21(2) Documents Part A, page 101. 28 [2012] QCA 228. 29 Ibid, [33]. -- 19 of 23 -- 20 The great majority of people behave with propriety and integrity in the absence of stress, adversity and temptation. However, it is often when a person is tested by such conditions and circumstances that his or her character is fully revealed. Police officers are commonly placed in situations of considerable stress and may also be subject to strong temptation from time to time. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.30 [74] As noted, these comments were made in the context of considering substantiation and whether particular conduct constituted misconduct against a background of a bitter matrimonial dispute. The Full Court considered that may ‘explain the behaviour, but can hardly excuse it.’31 [75] In my view, similar principles apply to consideration of the sanction appropriate for Constable Francis’ misconduct. The lack of organisational support may have facilitated the circumstances in which Constable Francis was tempted into behaviours which constituted misconduct, or allowed the conduct to go unreported for a considerable period. [76] However, the expectation of the public must be that police officers are persons who are able to act with integrity despite organisational shortcomings and temptations which may present in a particular police district because a night club industry operates within it. Therefore, any inadequacies in supervision and culture within the police service at the Gold Coast District at the time and the associations with persons in the night club industry are irrelevant and play no part in mitigation. [77] They do not provide for a context in which a lesser standard of behaviour was acceptable. The standards of behaviour required on the Gold Coast were not less than elsewhere in Queensland. In my view, the matters identified by the Deputy Commissioner can not influence the appropriate sanction. I disregard them in determining sanction. [78] Mitigating factors [79] Constable Francis raises a variety of issues in mitigation. He includes in these that he was lacking in proper supervision and guidance as identified by the CMC Report into Operation Tesco and that in most cases others were aware of his conduct and seemingly did not report it or seek to dissuade him from it.32 In my view, this is a restatement of the so-called environmental factors. For reasons that I have already articulated, I do not accept that they are factors in mitigation. [80] Otherwise, I generally accept that factors raised by Constable Francis may properly be taken into account. These include that he ‘pleaded guilty’ to a number of the disciplinary charges and did not otherwise significantly challenge the facts on the remaining charges. I accept also that he had no previous findings of misconduct against him and has had none since. However, I place little weight on the lack of previous findings of 30 Ibid, [35]. 31 Ibid, [34]. 32 Second Respondent’s Submissions filed 2 April 2013, paragraph 28. -- 20 of 23 -- 21 misconduct in circumstances where the charges referred to in the proceedings span some 4 years. It is only happenstance that some of them were not brought in a timely manner after the conduct occurred. [81] Also, I accept that the disciplinary process and the suspension from duty led to a reflective process which resulted in Constable Francis gaining insight in conceding charges and facts, demonstrating significant remorse and expressing his commitment to the police service and the responsibilities of a serving officer. [82] However, he did not admit most of the more serious charges in Matter 2. Further, although he admitted matter 3(b), it is apparent from the transcript of interview that despite considerable policing experience, he did not appreciate misconduct in another officer when it should have been apparent. In later written submissions, he says that upon reflection he admits that he should have been aware.33 That said, 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. [83] Constable Francis’ references [84] At the hearing, Constable Francis provided, without objection from the other parties although they were not available to the original decision- maker, references from his various senior officers at his current posting. Suffice it to say that they speak among other things of his positive attitude, professionalism, sound policing knowledge and diligence, suggesting that he has performed to a high standard since his posting at Logan commenced in April 2012. [85] While this 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. [86] Conclusions about sanction [87] I acknowledge the personal difficulty of Constable Francis’ situation. His life has been on hold effectively for 3 years following his suspension and the ongoing disciplinary process thereafter. By all accounts, he has made admirable efforts and has approached his duties in a positive and enthusiastic manner since returning to duty following his suspension. [88] However, the transgressions made by Constable Francis are numerous and span a considerable period. Some are relatively minor of themselves. I consider, as my earlier discussion concerning them reveals, some of them more serious than the decision-maker did, and in respect of some, more-so than the CMC did, in making its submissions. [89] Against that, considerable investment has been made by the QPS in Constable Francis over the period of his service. It is not in the interests of 33 Section 21(2) Documents Part A, page 40. -- 21 of 23 -- 22 the public to discard that investment if it is possible to achieve the purpose of disciplinary proceedings in another way. [90] The decision-maker considered dismissal was not required to achieve the purposes of the disciplinary process. 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. [91] In respect of Matter 3(b), although I do not accept that Constable Francis was aware of a serious breach of the law by another officer, I consider the charge a serious matter. I also take a more serious view than did the decision-maker and the CMC to Matters 1(b) and (1)(c). That said, I would not disturb the sanctions imposed in respect of Matters 1 and 3. [92] 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 in the police service, Constable Francis must be dismissed. As my view is that dismissal is required to maintain public confidence, the principle earlier articulated which arises from Aldrich v Ross in relation to giving due weight to the views of the Commissioner does not apply. [93] However, I am persuaded in light of the mitigating factors which I may properly take into account, to suspend that sanction. In particular, in mitigation, Constable Francis took a co-operative approach in the disciplinary proceedings to accepting substantiation of numerous charges (demonstrating honesty and a willingness to face up to obligations) and not seriously challenging the facts in relation to the others (again indicating honesty). He has also demonstrated development of some considerably greater insight as a result of the proceedings as displayed in his submissions. [94] I am also conscious of the investment which the QPS and therefore the Queensland community has invested in his officer training and skills development. [95] The dismissal will be suspended for a period of 3 years from the date of recommencement of duty by Constable Francis, that is from 4 April 2012. I otherwise leave the sanctions imposed by the Deputy Commissioner in place. If Constable Francis is found to engage in any further misconduct within the 3 years from when he returned after his period of suspension, my expectation that the suspension will be lifted and dismissal will become effective immediately. [96] It appears to me that the matters of transfer of Constable Francis from one District to another and placement in the first year constable program are operational matters internal to the QPS rather than disciplinary sanctions. Although I would make orders in those terms if I could do so, it seems to me that I am unable to make those orders. -- 22 of 23 -- 23 [97] Accordingly, I propose to make orders as follows to give effect my decision: 1. The reviewable decision only in so far as it imposes sanction for Matters 1 and 3 is confirmed. 2. The reviewable decision only in so far as it imposes sanction for Matter 2 is set aside; 3. The sanction imposed on Constable Francis for Matter 2 is as follows: (i)Suspension from the Queensland Police Service 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; (ii) Reduction in rank from Constable 1.5 to Constable 1.1 with eligibility to progress one point each six months dependant on satisfactory PPS for each period effective 4 April 2012; (iii) Dismissal from the Queensland Police Service 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 Francis of misconduct committed during the 3 year period of suspension. [98] However, before I proceed to make orders, I intend to give the parties the opportunity to assist me in formulating the precise orders to be made. Therefore, I make directions for the filing of further brief written submissions in relation to any issues arising from the form of words I have proposed to use to reflect my decision. A submission must be filed by any party which or who wishes to do so by 20 September 2013. In the absence of any submissions, I will proceed to make orders to that effect after that date. [99] Also, it appears to me that a non-publication order may be necessary, given references to numerous persons and other details pertaining to them in the documents before the Tribunal. I direct the decision-maker to file and serve any application for a non-publication order by 13 September. Any other party may respond by 20 September 2013. The application can then be determined on the papers without a further oral hearing. -- 23 of 23 --