Crime and Misconduct Commission v Webley and Anor [2011] QCAT 531

CITATION: Crime and Misconduct Commission v Webley and Anor [2011] QCAT 531 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Mr Shayne Webley Assistant Commissioner Mr Paul Wilson (Respondents) APPLICATION NUMBER: OCR032-11 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 and Misconduct Commission represented by Mr T D Gardiner of counsel instructed by Ms Wood, Police Union of Employees -- 1 of 5 -- 2 RESPONDENT: Shane Webley 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 a disciplinary charge of untruthfulness during a disciplinary interview was not substantiated against the respondent Constable Webley. [2] The CMC seeks review of that determination, and in the event that the charge is found to be substantiated, it seeks that an appropriate sanction be imposed. [3] The proceedings against Constable Webley 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 alleged untruthfulness concern Webley’s responses at various interviews in which he was asked questions about the communications that he heard during the course of the relevant pursuit. [6] In determining that the charge was not substantiated Assistant Commissioner Wilson referred to the lack of specificity of the questions during the various interviews in particular he made the following statements: “I am satisfied that in neither interview were you provided with the opportunity to expand upon or revisit responses provided to questions from Inspector Elloy and in such circumstances conclude that the line of questioning put to you was not to a sufficient standard to evoke from you or bring to the fore of your memory telephone communications that occurred between your vehicle and that of Senior Constable Chapman and Constable Buckley.. Further, I am satisfied that given the lapse of time between the occurrence of this incident and your subsequent interviews which, to my mind, were very informal in structure that it is reasonable to conclude that you did not intentionally withhold that information.” Directed interviews and duty to tell the truth [7] 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 that there was no formal direction by the interviewer requiring them to -- 2 of 5 -- 3 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. [8] 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. [9] 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. [10] 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. [11] 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)). [12] 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. [13] 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. [14] 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. [15] 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 -- 3 of 5 -- 4 or not. We reject this. Informal conversations that are 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. [16] 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. [17] 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. [18] 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. [19] 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. [20] 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. The charge [21] The charge was that he was untruthful during a disciplinary interview. [22] The main allegation was his failure to mention the telephone calls between him and McLoughlin. Other allegations included his incorrect response during the first interview when asked how he became aware of the pursuit. [23] The decision-maker was not satisfied that the charge had been substantiated. He referred to the lack of specificity of the questions directed to Webley during the relevant interviews. He also took into account that in neither interview was he provided with the opportunity to expand upon or revisit his initial responses to questions at the original interview. He concluded that given the lapse of time between the incident and the interviews, which were very informal in structure, it was reasonable to conclude that Webley did not intentionally withhold the specified information. [24] Some of the apparent inconsistencies that arose in the course of the lengthy interviews to which Webley was subjected arose from the fact that he did not at all times make a distinction between his own knowledge and information that he was fed at the accident scene by other police officers. (See record pp 1577-1599). -- 4 of 5 -- 5 [25] During his evidence before the coroner, he stated at one point that in hindsight he should have mentioned the phone calls (see record p 628), but we do not take this as an admission of untruthfulness. Indeed he does not appear to have consciously hidden the telephone communication, but rather to have not been aware of its potential relevance. [26] It was submitted by counsel for the CMC that Webley was aware of the pursuit and deliberately chose not to disclose it. However, we have found that there was no formal pursuit along the motorway, and at no stage did Chapman notify him that car 972 was in pursuit. It is drawing a long bow to suggest that Webley ought to have known that something sinister, i.e. cynical breach of police pursuit policy, was going on in car 972. [27] Webley and McLoughlin knew that Chapman and Buckley desired to intercept the motorcycle, although they had not been advised of formal pursuit. Webley and McLoughlin as fellow police transport 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. There was no motive for Webley to suppress the information that it is claimed he should have disclosed. [28] In the circumstances we see no reason to take any different view of the matter than that taken by the decision-maker. [29] The decision that the charge of untruthfulness was not substantiated is confirmed. -- 5 of 5 --