Crime and Misconduct Commission v McLoughlin and Anor [2011] QCAT 532

CITATION: Crime and Misconduct Commission v McLoughlin and Anor [2011] QCAT 532 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Christopher Peter McLoughlin Assistant Commissioner Mr Paul Wilson (Respondents) APPLICATION NUMBER: OCR033-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 6 September 2011 HEARD AT: Brisbane DECISION OF: Hon James Thomas AM QC, Presiding Member Richard Oliver, Senior Member DELIVERED ON: 20 October 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Assistant Commissioner Wilson of 2 February 2011 that the charge was not substantiated is confirmed. CATCHWORDS: Police Discipline – review of the Assistant Commissioner’s finding that the applicant was not untruthful – meaning of “untruthfulness” in the context of formal interviews – application of the Human Resource Management Manual to interviews – where failure to disclose mobile phone calls in a formal interview Police Administration Act 1990, ss 1, 4 APPEARANCES and REPRESENTATION (if any): APPLICANT: Crime & Misconduct Commission represented by Mr T D Gardiner of counsel instructed by Ms Wood, Police Union of Employees -- 1 of 6 -- 2 RESPONDENT: Christopher Peter McLoughlin represented by Mr P Smith of counsel instructed by Queensland Police Union of Employees Assistant Commissioner Paul Wilson represented by Mr S McLeod of counsel instructed by Ms Heffner, the Police Service Solicitor REASONS FOR DECISION [1] On 2 February 2011 Assistant Commissioner Wilson found that two disciplinary charges against Sergeant McLoughlin had not been substantiated. [2] The CMC now seeks review of both matters, and in the event that the charges are found to be substantiated, it seeks that appropriate sanctions be imposed. [3] The proceedings against Sergeant McLoughlin arise in the aftermath of a police pursuit on the Gold Coast on 16 June 2006 in which a motorcyclist died and his pillion passenger was seriously injured. [4] The circumstances of that pursuit are described in the decision of Chapman v Wilson and CMC OCR029-11, published today. [5] The charges were, in essence: a) Failing to notify the communications centre of the failure of Chapman or Buckley to report the pursuit; and b) Untruthfulness during interviews in failing to disclose the mobile telephone calls. Failing to report Chapman [6] Section 7.2 of the Police Service Administration Act 1990 imposes a duty on all police officers to report to the Commissioner and the CMC any misconduct of any other police officer whenever and wherever occurring "as soon as is practicable". [7] The threshold question here is whether McLoughlin was in fact aware of any misconduct on the part of Chapman or Buckley. [8] In our view there is no satisfactory evidence that McLoughlin knew the point at which actual pursuit was commenced by Chapman and Buckley, or that car 972 had reached a point at which it had become obliged to report “pursuit” to the communications centre. [9] As indicated in paragraphs [20]-[28] of OCR029-11 McLoughlin and Webley (in car 973) were never in any pursuit. They were some distance away to the north. They did not see the motorcycle until well after the crash. They knew -- 2 of 6 -- 3 from earlier communications that a bikie had “done a runner” and that car 972 was chasing it. The conversations on mobile phones between Webley and Chapman were short. Essentially they were telling each other where they were. There would seem to have been an implicit understanding that they would help out if they could. But the event was over before they could do anything effective. The actions of McLoughlin and Webley in car 973 should be characterised as mere preparation to render assistance if required. [10] We are at a loss to see how these two mobile phone calls between Webley and Chapman could be regarded as some sort of indication that Comms was being overlooked. The first of the calls was made when car 972 was on the motorway, prior to a time when formal pursuit commenced, and prior to the time when police policy required Chapman to call the pursuit to Comms. The second call was made when car 972 was somewhere around Nerang, and it was possibly then apparent to McLoughlin, although by no means certain, that actual pursuit had commenced. But it is difficult to infer that McLoughlin had any knowledge that Chapman was breaching the pursuit policy and that Comms had no knowledge of what was happening. The over-talking and intermittent unreliability of police radio in those areas would contribute to McLoughlin failing to advert to the question whether Chapman had yet notified the communications centre. [11] Webley and McLoughlin knew that Chapman and Buckley desired to intercept the motorcycle, although they were not advised of a formal pursuit. Webley and McLoughlin as fellow police traffic officers intended to assist them if they could. They were at no stage near the actual pursuit, and were assisted to the scene by another police officer (Jose) who was in the vicinity and who picked up the late urgent calls. [12] Counsel for the CMC submitted that McLoughlin was under a duty to "blow the whistle" on Chapman. But this presupposes that McLoughlin was aware of improper conduct by Chapman. During his interview of 9 September 2009 McLoughlin was asked what he might have been able to tell Comms if "with the clear vision of hindsight" he had chosen to call them. He responded, in effect, that he would not have had anything relevant to tell them if he had rung in. The questioning continued over pages 1472-1474 of the record, and we think that McLoughlin's responses are credible. [13] We do not think that the first charge, failing to report Chapman, was substantiated. [14] We have in OCR029-11 set out our views on what needs to be shown to support a charge of misconduct through untruthful statements during interviews, and will not repeat them here. There was however a special submission made in respect of the interviews of McLoughlin and Webley, with which we will deal with before further discussing the untruthfulness charge. Directed interviews and duty to tell the truth [15] Counsel for the four police officers submitted that some of the interviews of his clients, in particular those of McLoughlin and Webley, were “informal” and -- 3 of 6 -- 4 that there was no formal direction by the interviewer requiring them to state the truth or any warning of the consequences if they did not do so. He submitted that they were not "disciplinary interviews", but did not clearly state what consequences should flow from this. [16] If it implies that the interviewee’s statements during such an interview should be excluded, we reject the submission. It is possible that the weight to be given to the responses may be affected by the absence of formal directions and warnings, but we do not think that the present case requires this question to be dealt with. [17] Under the current system all members of the Police Force are, as a matter of instruction from the Commissioner, required to “truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an inquiry or investigation on behalf of the Commissioner”. This is a direction issued by the Commissioner for Police under section 4.9(1) of the Police Service Administration Act 1990. It is contained in the “Human Resource Management Manual” (HRMM) at paragraph 18.2.4.4.9, and its content at the relevant time is contained in Exhibit 2. [18] The direction also states that the interviewer, at the outset of a discipline interview should reinforce the duty to tell the truth by stating the necessary requirement, including a warning that failure to comply with the direction will be a breach of the Police Service (Discipline) Regulations 1990. [19] Quite clearly all police officers are bound by the Commissioner’s direction. It is a direction issued under section 4.9 of the Police Service Administration Act 1990 under which "every officer or staff member, to whom a direction of the Commissioner is addressed is to comply in all respects with the direction". (See s 4.9(3)). [20] All police officers remain under a statutory duty to answer truthfully during any investigation, irrespective of whether the interviewer makes mention of it. But as mentioned above, it is possible that the weight of the answers might be affected if the warning is not given. [21] The definition of "misconduct" in s 1.4 of the Police Service Administration Act 1990 is- Misconduct means conduct that – (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. [22] We think that the telling of lies by a policeman in the course of any work related police investigation would be capable of constituting misconduct under the above definition, quite apart from whether any Commissioner’s directions had been made in this behalf, or from the question whether a specific warning was given in accordance with such directions. -- 4 of 6 -- 5 [23] It was suggested by counsel for the decision-maker that police officers are always under a duty to tell the truth to each other whether they are on duty or not. We reject this. Informal conversations not part of an investigative function, are simply not covered by the Commissioner’s direction. The point at which a lie during informal dealings or in proceedings falling short of an “inquiry or investigation” might amount to misconduct does not arise for decision here. [24] The issue of lack of directions to answer truthfully arises only in relation to the interview of Webley on 28 June 2006, and the interviews of McLoughlin of 28 June 2006 and 17 September 2006. [25] The seriousness of the investigation was blatantly obvious to all concerned from the very outset, as was the need to assist by telling the truth. In our view the absence of a direction or reminder of the consequences in those particular instances is of little moment. [26] All four police officers were interviewed separately three times. It is true that no specific direction was given to McLoughlin in his interview of 28 June 2006 but plainly McLoughlin knew that he was being asked for information by an investigator in a disciplinary matter. [27] We note that in his final submission Mr Smith for the police officers conceded that a lie could amount to misconduct in an informal interview, depending on the circumstances and how material the matter is. [28] We do not consider that any of the four police officers were relieved from their obligation to speak the truth during any of these interviews, even on those occasions when a formal direction was not given. Discussion of untruthfulness charge [29] The relevant charge against McLoughlin was that "your conduct was improper in that you..were untruthful..during a disciplinary interview." [30] It is against the background described above (paras [6] to [11]) that Sergeant McLoughlin’s interviews should be examined. It is open to think that in McLoughlin’s mind the mobile phone calls between Webley and Chapman were not particularly significant. The main focus of the inquiry appeared to be the contact (or lack of it) between car 972 and the communications centre. When the first interview commenced the interviewer would not have considered that McLoughlin and Webley were persons of interest. They were simply persons who might be able to help give a full picture of the event to be obtained. [31] The main basis of the charge is that at the end of the first interview, Inspector Elloy asked McLoughlin if there was any other information he was aware of that would assist the enquiry, to which McLoughlin replied in the negative. This charge is tantamount to one of misrepresentation by silence; it is not an allegation of an untruthful answer to a specific question. Such a charge can only be made out if it is established to the required standard that McLoughlin was intending to deceive. -- 5 of 6 -- 6 [32] The questioning really left it to McLoughlin to decide what was relevant. In the circumstances we think that it was reasonably open to him to regard the mobile phone calls as not sufficiently material to the line of enquiry to require mention. [33] McLoughlin and Webley knew that Chapman and Buckley desired to intercept the motorcycle, but they were not advised of, or otherwise aware, of any formal pursuit. They intended to assist their colleagues if they could. They were at no stage near the place of the pursuit, and, as indicated above, their eventual knowledge of the matter came from hearing the emergency call on police radio after the accident and after they were directed to the scene by police officer Jose. [34] It is not open to conclude that there was any conspiracy between the four police officers to cover up the mobile phone calls. Counsel for the decision- maker expressly conceded that he could not nominate any motive for untruthfulness in that area. Counsel for the CMC however at one stage submitted that disclosure of the phone calls would attract attention to infringement of the pursuit policy, or to some private dealings between the occupants of the two cars, to the exclusion of the communications centre, but we do not think that the evidence supports this. [35] Counsel for the CMC submitted that McLoughlin's responses at pages 1471- 1474 of the record, mentioned above, are "spurious", but in our view it is reasonably open to think that this was how he saw the situation. Webley’s evidence similarly supports ignorance of a formal pursuit. It will be remembered that the two short mobile phone calls were between Chapman and Webley, and McLoughlin would only have heard Webley's responses. In all the circumstances it is not surprising that he thought they were of little significance. [36] The CMC’s submissions on this particular are premised on a finding that there had been a formal pursuit along the motorway, but we have rejected that premise. [37] We consider that no deliberate untruthfulness or withholding of relevant information has been established. [38] Acting Commissioner Wilson's determination that both charges of improper conduct against Sgt McLoughlin were not substantiated is confirmed. -- 6 of 6 --