Crime and Misconduct Commission v Buckley and Anor [2011] QCAT 528

CITATION: Crime and Misconduct Commission v Buckley and Anor [2011] QCAT 528 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Hilton Buckley Assistant Commissioner Paul Wilson (Respondents) APPLICATION NUMBER: OCR025-11 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 – where failure to disclose mobile phone calls in a formal interview – where failure to volunteer information about mobile phone calls must be considered in the context of the questioning in the interview and the circumstances generally – where no motive for untruthfulness established 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 RESPONDENTS: Hilton Buckley 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 Senior Constable Buckley. [2] In its watchdog role, the CMC has sought review of that decision, and in the event that the charge is found to be substantiated it seeks that an appropriate sanction be imposed. [3] The proceedings against Buckley 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. Of particular relevance in the present matter are our findings in paragraphs [13]-[43] of the reasons for judgment in that matter, and it is unnecessary to repeat them here. In particular, those findings show that during the chase and pursuit there were a number of radio communications between various police vehicles in the area on the subject of attempted interception of the motorcycle that had “done a runner" at Tugun, and there were also two mobile phone calls made between Webley in car 973 and Chapman in car 972. The first was when car 972 was on the motorway, and the second was in the Nerang area. [5] The charge against Buckley was essentially that when interviewed about the pursuit he failed to disclose any details of his mobile phone contact with Webley. [6] Relevant particulars of the charge against Buckley are:  During the discipline interview on 17 June 2006 when asked about any communication with other police involved you referred to Senior Constable Chapman attempting to call other units on the radio, but you did not advise the investigator regarding telephone communication with the other vehicle;  During the discipline interview on 13 September 2006 when specifically asked regarding your recollection of telephone calls during the course of the pursuit, you stated that you had no recollection of these calls, which was in contradiction of your subsequent interview; and -- 2 of 5 -- 3  During the discipline interview of 22 January 2010 you stated that you did not mention the telephone calls in previous interviews as you believed that the questioning was in relation to communicating with the police communication centre, despite the interviewer specifically naming Senior Constable McLoughlin when discussing telephone calls in the prior interview. [7] Assistant Commissioner Wilson (“the decision-maker") referred to a “lack of specificity” in the questioning of Buckley in all three interviews, especially as to his personal knowledge of the phone calls during the incident. In his view “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, the telephone communications that occurred between your vehicle and that of Senior Constable McLoughlin and Constable Webley.” [8] He concluded: I am satisfied that given the length 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 with hold that information. [9] The decision-maker also adverted to the fact that the use of mobile telephones for the purpose of operational communications in these circumstances was conducted with the intention of operational efficiency. In short, nothing sinister was seen in the making of the calls in question, and there was no obvious reason for Buckley to conceal the fact that the calls had been made. [10] Counsel for the CMC placed considerable weight on the following question and answer by Buckley during the first interview. The question was put following reference to other police officers who had arrived at the scene after the accident, including McLoughlin, Webley and a Sergeant Jose: “WELLER: Did you have any communication with any of those officers um to tell them where you were? BUCKLEY: Senior Constable Chapman tried calling on the radio I think when we were exiting the motorway to try and find out if there was another traffic vehicle in the area to assist us but I don’t think he got a response.” (record page 985) [11] The CMC submission is that the question concerned "any communication", and that this required disclosure of all communications, both radio and phone, and that Buckley's answer mentioned only a radio call. [12] The CMC further submits that Buckley’s failure to mention this phone call in the above quoted answer was a deliberate omission. There are several reasons why we reject this submission. In the first place Buckley's answer did not purport to be comprehensive; in the second place he had no reason -- 3 of 5 -- 4 to conceal the phone conversations; and in the third place the question was in the context of how the other officers found their way to the crash scene. [13] When asked what reason Buckley might have to deceive the interviewer, counsel for the CMC responded that his motive could have been that a fatality having occurred, disclosure of the phone call would attract attention to infringement of the police pursuit policy, or to some private dealings between the occupants of cars 972 and 973 to the exclusion of the communications centre. These submissions are premised on the pursuit having been commenced on the motorway, and on Chapman and Buckley having failed to notify Comms of it, contrary to our findings on that issue. [14] Car 973 was never involved in pursuit, and its role was merely to offer help in the interception of the fleeing motorcycle. In our view Buckley aptly described his activity as “a bit of back up” (record page 953). [15] The whole issue needs to be looked at with awareness of the fact that Buckley was the driver of vehicle 972, not the telephone user. He would at best have heard only one end of the conversations, and he was necessarily concentrating on his driving. [16] We do not think that any of the four police officers concerned would have had anything but fear from disclosure of the two mobile phone contacts. We reject any notion of conspiracy among the four police officers to conceal the making of those telephone calls, or attempt to subvert the normal communication process. We agree with Assistant Commissioner Wilson’s observation that “the use of mobile telephones for the purpose of operational communications in these circumstances were conducted with the intention of operational efficiency.” [17] The second particular alleges that during the interview of 13 September 2006 when asked about his recollection of telephone calls during the pursuit, he stated he had no recollection of such calls, and that this was a lie, because in a subsequent interview he agreed that the calls had been made. However he explained that he had believed the questioning in the first interview to have been in relation to contract with Comms. In the different contexts of these two interviews the explanation is credible. We do not think that this particular establishes a charge of deliberate untruthfulness. [18] So far as the third particular (in relation to the third interview) is concerned, we find Buckley’s responses (record page 1096) to the suggestion of deliberate concealment of the phone calls to be quite acceptable. His mention of his tiredness the morning after the event was not unreasonable. It is also reasonably possible, as Buckley suggested, that his mind was then focussed on communications with VKR rather than upon the back up phone calls. [19] We have been referred to extensive passages of evidence, but do not think any useful purpose would be served by repetition and individual analysis of them. The main factors have been mentioned above. On a charge of untruthfulness it is not enough to prove inaccuracies in an interviewee's -- 4 of 5 -- 5 statement. We repeat the view expressed in paragraph [54] of our reasons in Chapman v Wilson and CMC OCR029-11: A person will not be guilty of untruthfulness through mere inaccuracy or honest mistake. If a person believes a statement is correct at the time the person makes it, the person is not being untruthful. In the context of police interviews we consider that an officer is "untruthful" if he or she knowingly misleads the interviewer (by act or omission) or knowingly makes a false statement. [20] On the evidence we do not think it was reasonably open to conclude to the required standard that Buckley was guilty of untruthfulness in his responses to the interviews. [21] The decision-maker's finding that the charge was not substantiated should be confirmed. -- 5 of 5 --