DA v Deputy Commissioner Stewart [2011] QCAT 102

CITATION: DA v Deputy Commissioner Stewart [2011] QCAT 102 PARTIES: DA v Deputy Commissioner Ian Stewart APPLICATION NUMBER: OCR033-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 8 December 2010 HEARD AT: Brisbane DECISION OF: Margaret McLennan, Member DELIVERED ON: 17 January 2011 DELIVERED AT: Brisbane ORDERS MADE: Matter 1: the decision is confirmed; Matter 2: the decision is confirmed; Matter 3: the decision is confirmed; Matter 4: the decision is confirmed; Matter 5: the decision is confirmed; and Matter 9: the decision is set aside. The charge is not substantiated. The applicant is dismissed from the Queensland Police Service. CATCHWORDS: Police discipline – nature of QCAT review – misconduct – police officer – breach of domestic violence order by police officer – dishonesty – off duty conduct – dismissal – suspended dismissal considered Crime and Misconduct Act 2001, ss 219G, 219H Queensland Civil and Administrative Tribunal Act 2009, ss 17-20, 24 Police Service Administration Act 1990, ss 1.4, 7.4 Police Service (Discipline) Regulations 1990, rr 5, 9(1)(f), 10(f) Domestic and Family Violence Protection Act 1989 Briginshaw v Briginshaw (1938) 60 CLR 336 Rejfek v McElroy (1964-5) 112 CLR 517 -- 1 of 23 -- 2 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Vann v McGibbon TA4 of 2001 Misconduct Tribunal 27/2/2002 Henry v Ryan [1963] Tas SR 90 Queensland Law Society Inc v Bax [1998] QCA 89 R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 Compton v Deputy Commissioner Ian Stewart, Queensland Police Service [2010] QCAT 384 R v Law ex parte Attorney-General [1996] 2 Qd R 63 Re Colonel Aird [2004] HCA 44; 220 CLR 308 Orme v Atkinson Misconduct Tribunal TA2 of 1999 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr P Smith instructed by Gilshenan & Luton RESPONDENT: Mr S McLeod instructed by Qld Police Service Solicitor REASONS FOR DECISION [1] This is an application to the Queensland Civil and Administrative Tribunal (“the tribunal”) to review a decision by Deputy Commissioner Ian Stewart (“the respondent”) made on 2 February 2010. It was in relation to a disciplinary hearing which commenced 12 November 2009 and concluded on 2 February 2010 conducted under the Police Service Administration Act 1990 (“PSAA”). [2] In a Notice of Formal Finding – Misconduct dated 2 February 2010 the respondent delivered his findings and reasons. He found, where it is relevant to proceedings in the tribunal, the following disciplinary charges of misconduct against Constable DA (“the applicant”) were substantiated: “Matter 1 That on the 10th day of June 2008 at ... your conduct was improper in that you: a) pleaded guilty at ... Magistrates Court that on 6 November 2007 you contravened a temporary protection order issued at the ... Magistrates Court on 16 October 2007 under the provisions of the Domestic and Family Violence Act 1989; b) pleaded guilty at the ... Magistrates Court that on 8 November 2007 you contravened temporary protection order issued at the ... -- 2 of 23 -- 3 Magistrates Court on 16 October 2007 under the provisions of the Domestic and Family Violence Act 1989; c) pleaded guilty at the ... Magistrates Court that between 23 December 2007 and 31 January 2008 you contravened a protection order issued at the ... Magistrates Court on 27 November 2007 under the provisions of the Domestic and Family Violence Act 1989. [Section 1.4 of the Police Service Administration Act 1990 (‗PSAA‘), section 9(1)(f) Police Service (Discipline) Regulations 1990 (‗PS(D)R‘)] Further and better particulars: Investigations have identified that:  on 10 June 2008 you appeared in the ... Magistrates Court and pleaded guilty to 2 charges of breaching a temporary protection order and 1 charge of breaching a protection order;  the Magistrate ordered that you be released upon entering into a recognisance in the sum of $1,800.00 on condition that you must appear before the court to be sentenced at a future sitting of the Court if called on within the next 18 months and in the meantime you must keep the peace. Matter 2 That on the 13th day of September 2007 at ... your conduct was improper in that you: a) were untruthful to IS when you stated that you had not accessed JK‘s email account. [Section 1.4 of the PSAA, section 9(1)(f) PS(D)R] Further and better particulars: During your disciplinary interview with IS on 19 October 2007:  you were directed to answer truthfully; and  you admitted to IS that during your conversations with him on 13 September 2007 you told him a lie when you said that you had not accessed JK‘s email account. Matter 3 That on the 18th day of October 2008 at ... your conduct was improper in that you: a) were untruthful to Acting Senior Sergeant SF when you stated that between 12 September 2008 and 16 September 2008 you were home sick with the flu. [Section 1.4 PSAA, section 9(1)(f) PS(D)R] Further and better particulars: Investigations have identified that:  on the 18th day of October 2008 Acting Senior Sergeant FS questioned you in respect to your absence from work from 12 September 2008 and 16 September 2008 inclusive; -- 3 of 23 -- 4  you stated that you were home sick with the flu;  you then stated that you had driven your girlfriend‘s son to a party on the Gold Coast and returned home to ...;  you then stated that you went away with a person by the name of DD for the week-end on the Gold Coast. Matter 4 That on or about the 28th day of March 2007 at ... your conduct was improper in that you: a) provided false and misleading information in a statutory declaration to JK. [Section 1.4 of the PSAA, section 9(1)(f) PS(D)R] Further and better particulars: Investigations have identified that:  you separated from your then wife JK on the 30th day of September 2007;  the property at ... was purchased during your marriage;  there were proceedings in the Family Court in respect to your marriage separation;  you prepared a statutory declaration under the provisions of the Oaths Act 1867 dated 28 March 2007 stating that you would forfeit all rights that you may have in regards to the property situated at ...; and  during your discipline interview with Senior Sergeant Campbell on 18 November 2008 you admitted that the information contained in the statutory declaration was false and you had no intention of signing the rights to the property at ... over to her. Matter 5 That on or about the 28th day of March 2007 at ... your conduct was improper in that you: a) Forged the signature of a Commissioner for Declarations on a statutory declaration under the provisions of the Oaths Act 1867. [Section 1.4 of the PSAA, section 9(1)(f) PS(D)R] Further and better particulars: Investigations have identified that:  you prepared a statutory declaration under the provisions of the Oaths Act 1867 stating that you forfeit all rights that you may have in regards to the property situated at ...; and  you signed that statutory declaration using the stamp and signature of one HD without permission or authority. Matter 9 That on the 11th day of July 2008 at ... your conduct was improper in that you: a) used Queensland Police Service (―QPS‖) resources to make telephone calls to RC in order to harass RC. -- 4 of 23 -- 5 [Section 1.4 of the PSAA, section 9(1)(f) PS(D)R] Further and better particulars: Investigations have identified that:  the QPS is the subscriber of telephone number ...;  this telephone number is the main switch number of ... Police Complex; and  you used this telephone number to call mobile number ... registered to RC on 2 occasions on 11 July 2008 to harass RC.” [2] The respondent as a result of the disciplinary hearing, having found the charges to be substantiated and having regard to the purpose of discipline, the interests of the service and the interest of the community in general ordered that the applicant be dismissed from the QPS pursuant to section 5 and section 10(f) of the PS(D)R. The sanction was to take effect at 4pm 2 February 2010. Jurisdiction [3] The tribunal‟s review jurisdiction is contained in sections 17, 18, 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). The enabling Act referred to in section 17 of the QCAT Act is, in this matter, the Crime and Misconduct Act 2001 in particular section 219G and section 219H which set out the process relating to reviewable decisions. In particular subsection 219H(1) provides that a review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker. [4] The evidence before this Tribunal consists of the material originally placed before the respondent as well as supplementary case, policy and transcript material supplied at the hearing. The tribunal is mindful that the review involves a fresh hearing and that subsection 20(1) of the QCAT Act provides: “the purpose of the review of a reviewable decision is to produce the correct and preferable decision.” [5] There is a new statutory regime contained in the QCAT Act as distinct from the previous Misconduct Tribunals Act 1997 however it is accepted that the principle stated in Aldrich v Ross [2000] 2 Qd R 235 (“Aldrich”) by Thomas JA (as he then was) continues to apply: “... I consider that the Misconduct Tribunal is required to make its own decision on the available evidence rather than merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense against the exercise of a discretion. ... It would be appropriate for the Misconduct Tribunal in making up its own mind 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.”1 1 Aldrich at 257. -- 5 of 23 -- 6 [6] The tribunal will make its on decision on the evidence before it2 with due respect to the original decision-maker. The tribunal notes the reservations expressed in Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman3 (“Chapman”) and finds them similarly applicable in this matter. [7] The determination of a disciplinary matter is an administrative function where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-62. “But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge ...”.4 Matter 1 [8] Mr Smith, counsel for the applicant, submitted that in relation to the breaches of the domestic violence order to which the applicant had pleaded guilty in the ... Magistrates Court on 10 June 2008, there had been no actual violence; no damage to property; the breaches were at the lower end of the scale;5 and came as a result of a marriage breakdown and emotional stress for the applicant.6 He had by the time of the hearing before the Magistrate, got his life back on track7 though he had forfeited a promotion.8 There had been no prior history and he had been consulting a psychologist.9 [9] Mr Smith referred the tribunal to the delay as a factor in the applicant‟s matter and that he had remained on active duty throughout the investigation.10 In relation to delay and mitigation albeit in a criminal law context, Mr Smith referred to R v Law ex parte Attorney-General11 where 2 See also Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384. 3 [2010] QCAT 564 paragraphs 17-19. See also paragraph 47 of this decision for further reference to Chapman‘s case. 4 Rejfek v McElroy (1964-5) 112 CLR 517, 521. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171. 5 See also Volume 1, Part B Transcript ... Magistrates Court 10 June 2008 page 51. 6 Ibid. 7 Ibid at page 53. 8 Ibid at page 54. 9 Ibid at 55. 10 Vann v McGibbon TA4 of 2001 Misconduct Tribunal 27/2/2002 at page 13 of 16 pages (unpaginated). 11 [1996] 2 Qd R 63. -- 6 of 23 -- 7 the Court of Appeal considered these factors not in mitigation but that from behaviour displayed in the interim period, there was unlikely to be a reoffending: “... time between commission of the offence and sentence is sufficient to enable the court the see that the offender has become rehabilitated or that the rehabilitation process has made good progress.”12 [10] The Magistrate imposed a conviction on the applicant and ordered that it not be recorded13 and ordered the applicant be released upon entering into recognisance in the sum of $1,800 on condition of his non-appearance before the court within the following 18 months. The further condition was his good behaviour.14 [11] There was no further breach during the 18 month period. It is this indication of rehabilitation or progress to which Mr Smith refers. [12] The applicant pleaded guilty to breaches of the temporary domestic violence order and the permanent domestic violence order. The tribunal notes the comments of the applicant‟s legal representative: “My client, once the major charge, or the twelve charges were accommodated into one ... he‘s pleaded guilty straight away.”15 [13] The Magistrate acknowledged that the applicant‟s breaches of the domestic violence orders were not serious breaches. However he cited: “Domestic violence is an insidious, prevalent and serious problem in our society ... It is not solely a domestic issue; it is a crime against the State warranting salutary punishment.”16 and stated: “But what does make it serious, DA, is your position within society. You are trusted as a member of the police force to not only enforce but uphold those laws.”17 [14] There is a conflict between the common enough duty of a police officer charged with the investigation of a suspected breach of a domestic violence order,18 breach of which is a criminal offence, which makes it incompatible with the fact that a police officer has pleaded guilty to breaches of the very law he is required to uphold. It is irreconcilable that a police constable can both breach domestic violence orders yet at the same time, uphold them in other contexts that do not involve his own personal 12 Ibid at page 66. 13 Volume 1 Part B Transcript of Proceedings (Decision) ... Magistrates Court 10 June 2008 page 63. 14 Ibid. 15 Ibid page 55. 16 R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 per McMurdo P at para 23. 17 Volume 1 Part B Transcript of Proceedings (Decision) ... Magistrates Court 10 June 2008 page 61. 18 Domestic and Family Violence Protection Act 1989, s 67. -- 7 of 23 -- 8 circumstances. The tribunal, as already noted, observes that there were more extensive charges which were reduced.19 [15] The tribunal considers that breach of domestic violence orders by a police officer is misconduct. [16] As to the applicant‟s rehabilitation: his supervising officer20 reported the applicant as “aggrieved”21 by his placement in the watchhouse; a deterioration in his conduct22 in tardiness and code of dress23; stalking or other “questionable behaviour”24 and eventually: “... it got to the point that he was no longer put in a position of trust or authority in terms of managing any element of a shift ... We limited his movements to and from court escorting prisoners to and from the court building because again at those times he would be unsupervised on fairly unreliable camera type coverage ... because of the age of the equipment. And generally speaking he was kept in the main foyer area and his duties were fairly limited which really did have an impost on the workplace ...”.25 And: “... in terms of his workplace performance or his position in, within inside [sic] the workforce ... I made my concerns known to IS, IW and I‘ve spoken to the District Officer directly about it saying that I believe that he should not be in the workplace because he was becoming cancerous and he was putting an undue, ah undue pressure on the shift supervisors to monitor his behaviour and conduct.”26 [17] In response to the question as to the applicant‟s suitability to remain a police officer, the supervising officer27 stated: “Fairly directly I don‘t think he displays the characteristics required, the ethical um decision making or the ability to remain in the job. ... but I‘ve seen a deterioration in his conduct to the point that he can lie point blank ah to enquiries both conducted by myself and by IS from ... that ah, and he lies without ah any conscientiousness um until the point that um when you confront him with the, the bare hard facts that‘s the only point that he um, he changes his story and, and concedes ah that there maybe misinformation out there. He doesn‘t, I think he‘s become a, a very good liar and he is only um pulled up when he‘s confronted with the truth. And I think from an ethical standpoint um I think he‘s unfit to be in the police.”28 19 Volume 1 Part B Transcript of Proceedings ... Magistrates Court 10 June 2008 page 55. 20 Volume 3 Transcript of Interview between Senior Sergeant Campbell and SF 10 March 2009 page 799 line 60. 21 Ibid page 801 line 122. 22 Ibid page 804 line 202. 23 Ibid lines 215-216. 24 Ibid page 805 line 220. 25 Ibid pages 821-822. 26 Ibid pages 827-828. 27 Ibid page 828. SF had been the applicant‟s direct supervisor “in two or three capacities over the last five years that I have known him.” 28 Ibid pages 828-829. -- 8 of 23 -- 9 [18] None of this supports rehabilitation rather an escalation of the problem to the point where the applicant was closely monitored by his supervisors; not trusted; where his actions impacted on the efficiency of the workplace and even may have infected the work ethic of other officers.29 Matter 2 [19] Mr Smith submitted that the lie which the applicant admitted30 telling to the investigating officer IS on 13 September 200731 in relation to his accessing JK‟s email account was in an informal conversation; not a directed formal disciplinary interview; was neither tape-recorded nor were contemporaneous notes made. Therefore the incidents of the lies were to be differentiated from the formality of the interview described at 18.2.4.4.9 of the Human Resource Management Manual (“HRMM”)32 and so could not be used as instances of misconduct. [20] The tribunal notes that the formal interview on 19 October 2007 between IS and the applicant commenced as a criminal interview as a result of complaints received in relation to breaches of a domestic violence order.33 Upon the applicant‟s exercise of his right to refuse to answer questions, the interview was terminated and restarted as a formal disciplinary interview34 in relation to three possible breaches of a domestic violence order and two incidents of untruthfulness. [21] The applicant stated in relation to the access to JK‟s closed email account in the formal interview: “DA: Ah that was a private conversation between you and me, that it was no disciplinary action or any interview being conducted at that stage ... DA: That was just you as my Boss, as a person who I thought, you know might be able to help the situation, right.”35 [22] He further stated that he lied out of embarrassment and humiliation.36 IS was the applicant‟s superior officer. The context of what transpired on 13 September 2007 involved breaches of a domestic violence order. [23] The proposition before the tribunal is that in a formal, directed interview an officer is required to be honest but that making a false representation to one‟s “Boss” in a conversation, the context of which involves breaches of a domestic violence order and access to a closed email account, does not count or at least not to the same degree. Thus, the admitted lie in the second instance should not be labelled misconduct but a disciplinary breach. 29 Ibid page 829 lines 960-970. 30 Vol 1 Part B Interview with IS 19 October 2007 pages 80 and 82. 31 Ibid page 78 IS refers to 30 September 2007. 32 “Pursuant to ss.4.9(1) and 2.5.of the PSAA all members of the Police Service ... are instructed 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.” 33 Vol 1 Part B Interview with IS 19 October 2007 page 66. 34 Ibid page 67. 35 Ibid page 79. 36 Ibid. -- 9 of 23 -- 10 [24] This is tendentious. The tribunal notes the QPS Code of Conduct (“Code”):37 “7. Determination of Conduct Determining whether a member's conduct, whether on or off duty, is right and proper in terms of this code requires examination of: • the nature of the conduct exhibited; and • the context in which the conduct takes place.” [25] The Code states the five ethics principles derived from the Public Sector Ethics Act 1994 of which one is integrity.38 Integrity is defined as “1. moral uprightness, honesty.”39 [26] Honesty is a basic concept.40 A reasonable expectation of the community is that a police officer would have standards of consistent honesty in his dealings with the community and his fellow officers. Section 1.4 of the PSAA defines misconduct as: “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.” [27] It has been observed that: “The purpose of misconduct and discipline proceedings within the Police force has been identified in a number of decisions including Hardcastle v Commissioner of Police41, Police Service Board v Morris42 and Re Bowen43. The protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties are the primary purposes of such proceedings.” 44 [28] The tribunal further notes the comments of the respondent that because of the applicant‟s misrepresentation, IS had to make further investigations.45 [29] A police officer is not able selectively to choose the occasions when he will be able to lie and when, in the context of a formal disciplinary interview, choose to be honest. A police officer is required to be consistently honest. The reputation of the QPS and community support for its functions rely on any one officer‟s honesty and integrity. In Matter 2 the applicant did not meet with the standard of integrity required in policing. 37 Code of Conduct 6 October 2006 section 17.1. 38 Ibid section 17.1.8. 39 Concise Oxford Dictionary Ninth Edition 1995. 40 Queensland Law Society Inc v Bax [1998] QCA 89: ―In a matter like this, and perhaps in most others, basic honesty is not a quality that is ordinarily acquired through experience, or by lengthy practice of trying one's best to be honest.‖ Per His Honour Justice McPherson in relation to the honesty and integrity of solicitors. 41 (1984) 53 ALR 593. 42 (1984) 53 ALR 593, (1985) 156 CLR 397, 411. 43 [1996] 2 Qd R 8. 44 Aldrich page 19 paragraph 42. 45 Volume 1 Part A page 125. -- 10 of 23 -- 11 Matter 3 [30] Mr Smith submitted that the applicant‟s conversation with his supervising officer SF was informal46 and no tapes or notes were made by SF. The period of the applicant‟s absence was covered by a genuine47 medical certificate. [31] In relation to the backdated48 medical certificate49 his supervising officer initiated an investigation as to the applicant‟s absenteeism50 and challenged the applicant‟s absence. The applicant indicated that he had been at home in bed with the flu.51 “He changed his stories numerous times um in the space of twenty minutes when I just confronted him outright saying um I think you‘re telling me lies. Ah at that time ah although the conversation went for about twenty minutes but at the end of um the time he ended up saying that he was ah under a lot of pressure and that he was away for a four day dirty week-end with his girlfriend down on the Gold Coast.”52 [32] In the formal interview with IS53 the applicant, under questioning as to his whereabouts in the period covered by the medical certificate recalled telling SF in the days after the period of absence that the applicant‟s new girlfriend‟s son wanted to go to a party on the Gold Coast so they drove him there. The applicant stated: “IS: and did you drive him there DA: no DD drove I was just a passenger IS: and what day did that occur DA: I UI did go down Saturday IS: well you went sick on the Friday DA: yeah I am not sure is [sic] went down we might have gone down the Friday afternoon IS: You believe you may have went [sic] down on the Friday afternoon. Did you come back? DA: we came back Sunday 46 Volume 3 Transcript of Interview between Senior Sergeant Campbell and SF 10 March 2009 page 820. “I called him into an office ... it was a conversational interview ...”. 47 Volume 3 Transcript of Interview between IS and Constable DA 18 November 2008 page 840. 48 Volume 3 Transcript of Interview between Senior Sergeant Campbell and SF 10 March 2009 page 819 – medical certificate obtained 17.9.08. 49 Volume 4 page 1205 medical certificate covering the dates 12.9.08 to 16.9.08. 50 Volume 3 Transcript of Interview between Senior Sergeant Campbell and SF 10 March 2009 page 818 lines 629-631 – investigation commenced upon the applicant‟s return to work. 51 Volume 3 Statement of Witness SF 17 October 2008 page 849 reporting the investigation into the applicant‟s absence. 52 Volume 3 Transcript of Interview between Senior Sergeant Campbell and SF 10 March 2009 page 820. 53 Volume 3 Transcript of Interview between IS and Constable DA 18 November 2008 page 836. -- 11 of 23 -- 12 IS: come back Sunday. So why then when he asked you so why did you actually say you were home if you were in fact at the Gold Coast?”54 [33] The applicant then launched into accusations about his ex partner harassing him.55 “IS: so when he further asked you about the DDO visiting your address and you not being home why didn‘t [you] then declare to him that you were actually at the Gold Coast and that was the reason why the DDO. DA: I did it because I didn‘t want me ex knowing anything about me ... and I didn‘t realise that it was going to be this if I know straight up if SF came straight up and told me it was going to be a full investigation I would have dropped it straight on him straight away. That‘s why I was a little bit cagey with him first.” 56 [34] There was no evidence that the applicant was harassed by his ex wife but there is evidence that he made failed attempts to accuse her of harassment.57 [35] The applicant then told IS in relation to the girlfriend‟s son: “DA: yeah we drove down we drove him we drove JJ down and a couple of his mates then we came back up then we gone back down with a couple more people in the car ... DA: again I am not sure if it was the Friday or the Saturday it may have possible [sic] been the Friday IS: so are you saying that you drove down then come back and the[n] drive down again all on the same day DA: yeah that‘s right.”58 [36] And the applicant confirmed he was sick59 but also away at the Gold Coast. “IS: He just subsequently said ah you said to him ‗alright I went away with DD for the week-end to the Gold Coast‘. Is that correct? DA: Yeah IS: and did you how long were you at the Gold Coast DA: I think two nights.”60 [37] This tribunal is confronted with the same difficulty which was alluded to in an earlier decision in this jurisdiction before the tribunal,61 a difficulty that arises when the tribunal must make its independent decision essentially on the written material that was considered by the primary decision-maker but without the benefit of hearing witnesses which would have been of assistance in the assessment of credibility. But, similarly there has been 54 Ibid page 842. 55 Ibid page 842. 56 Ibid. 57 Ibid page 845. 58 Ibid page 843. 59 Ibid page 844. 60 Ibid page 844. 61 Chapman see paragraph 16 above. -- 12 of 23 -- 13 the benefit of an adversarial procedure and submissions have been received from both sides.62 [38] I make this comment in addressing the credibility of the applicant in the differing versions provided by him in the interview with IS and statements to SF. It is clear from the material that the superior officers were keeping a wary supervision of the applicant at all times63 and this included the visits to his home by the District Duty Officer to check upon his absence in the days 12 to 16 September 2008. The supervising officer SF initiated an investigation64 into the applicant‟s absence immediately upon the applicant‟s return to work. SF‟s questioning occurred in an office and was by nature disciplinary since it queried an unexplained and unexpected sick leave where the District Duty Officer had been unable to locate the applicant and where the applicant‟s absence caused other officers to fill in for his absence. While SF did not take notes, a cautious supervising officer already alerted to the unreliability and untrustworthiness of an officer under his supervision is more likely to retain a clear recollection of what transpired in his interview with the applicant particularly if the applicant provides different versions within a short period of time. [39] As opposed to this, the applicant is reported to prevaricate in his answers and demonstrably prevaricates in his answers to IS. [40] The tribunal endorses the comments of the respondent: “The conduct should not be viewed in isolation and the material before me demonstrates that you have continually displayed a level of dishonesty throughout the investigation of these matters. Such an attribute is highly unacceptable of a police officer and in my opinion displays an unfitness to discharge the duties of a Constable.”65 [41] The applicant demonstrates a capacity for initial dishonesty followed by reluctant and partial disclosure when it can be demonstrated he can be pinned down to the truth. The applicant demonstrates a selective dishonesty, inconsistency and unreliability which are behaviours specifically antithetical to policing and community expectations of police standards. [42] The tribunal reiterates what has already been stated in relation to Matter 2.66 Matter 4 [43] Mr Smith submitted that it was a private matter when the applicant provided false information to his wife. He drew the tribunal‟s attention to the HRMM where in relation to the receipt of a complaint from a member of the public, and the receiving QPS member considers the complaint: “relates to off-duty or private conduct of a member which does not constitute misconduct (i.e. where there is clearly no nexus readily 62 Chapman at paragraphs 17-19. 63 Volume 3 Transcript of Interview between Senior Sergeant Campbell and SF 10 March 2009 for example pages 804, 818. 64 Ibid pages 818 and 820. 65 Volume 1 Part A Findings and Reasons page 139. 66 Paragraph 39 above. -- 13 of 23 -- 14 apparent between the alleged conduct and the integrity or ability of the member to fulfil his official duties‖67 then ―where the conduct is considered by the receiving member to be lawful and reasonable and/or duty/private, an explanation may be offered to the complainant to satisfy his/her concerns ...”.68 [44] It was a matrimonial dispute, heated but private and the document was not connected with the applicant‟s duties as a police officer. [45] Mr Smith directed the tribunal‟s attention to Re Colonel Aird69 which, broadly, examined the power to punish defence force members for their conduct but not unless “the proceedings ... to punish them can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.”70 There was the distinction between on the one hand, the “service status” view which held that there was jurisdiction to punish based solely on the basis of membership of the defence force and the “service connection” view of the jurisdiction which required a connection between the service and the offence.71 [46] Similarly Mr Smith submitted such a distinction was applicable in the applicant‟s matter. There had to be a substantial connection between the applicant‟s behaviour and whether that conduct impacted on his status as a police officer. He also submitted that the principles outlined in Orme v Atkinson72 (“Orme”) were of relevance in assessing an officer‟s private, off duty conduct and conduct that may be found to be misconduct for the purposes of discipline.73 There Member Mr McCarthy stated in relation to off duty behaviour: “There needs to be some nexus or some factor which raises the conduct to another level or ‗puts it over the line‘ so far as the reasonable expectations of the public are concerned ... It seems to me therefore that a line must be drawn in respect of a police officer‘s private or off duty conduct and that a police officer‘s conduct may ultimately be found to be misconduct for the purposes of discipline if: a) it is of such a nature as to erode public confidence in the Police Service; or b) it may be regarded as ‗morally or socially blameworthy in a policeman qua policemen‘ (Smith v Cullinan74 supra page 7); or c) it affects the police officer‘s ‗fitness to discharge his duties as a police officer‘ (Henry v Ryan75 page 91); 67 HRMM section 18.1.3.2(ii). 68 Ibid. 69 [2004] HCA 44; 220 CLR 308. 70 Ibid per McHugh J citing at page 8 of 46 paragraph 34: Re Nolan; Ex parte Young (1991) 172 CLR 460 at 484. 71 Ibid per McHugh J at page 9 of 46 paragraph 36. 72 Misconduct Tribunal No.TA 2 of 1999 Orme v Atkinson before Member Mr McCarthy. 73 Ibid page 11. 74 Misconduct Tribunal No. TA4 of 1996 Smith v Cullinan before Dr Forbes. 75 Henry v Ryan [1953] Tas SR 90 page 91 per Burbury CJ (“Henry”). -- 14 of 23 -- 15 d) it ‗clearly affects the status and authority of the police officer in the discharge of his public duties‘ (Henry v Ryan page 91).”76 [47] In a Statement of Witness signed by JK on 21 April 200877 the applicant‟s former wife stated that they had separated on 30 September 2007 and: “In about July or August 2006 I had not long had DA move back in with me after I had got very sick with glandular fever and Ross River fever and he lived in the back room and refused to leave ... I told him several times that I wanted to pay him out of the house ... I just wanted some stability for myself and the children. He told me he did not want the house and said he would sign it over to me.‖78 The advice to her from Brisbane solicitors was that it would cost approximately $3,000 to do so. ―When I informed DA of how much it would cost he said that he would sign a ‗stat dec‘ which would mean that I wouldn‘t have to spend the money on ‗legals‘ or go to court. He told me it was a legal document. So DA prepared a ‗stat dec‘ and I asked him on several occasions where it was and he told me that the ‗Admin girl‘ at work, KK had signed it. He then told me a police officer had signed it. He said it was HD at ... who signed it. I later found out that HD was on holidays so I asked DA if it was forged and he said ‗No‘ ... At some stage last year DA told me that it was forged and that I couldn‘t use it to get the house. I have since seen another legal document with HD‘s signature on it and they appear to look different.” [48] In his submissions79 the applicant stated: “At some stage early in 2007 I have signed a (not necessarily the) stat dec with similar wording to the subject document. This was not80 witnessed by HD. I am not convinced it is my signature that appears on the stat dec.”81 [49] The applicant then accuses his wife of falsely creating documents82 and then continues: “JK has either utilised the previous stat dec I did sign and forged HD‘s signature (and used a generic Com Dec stamp and she would have had documents with HD‘s Com Dec number; or JK has fabricated the entire document.”83 76 Orme pages 10 and 11. 77 Volume 2 Statement of Witness 21 April 2008 page 567-568. 78 Ibid. 79 Volume 1 Part A page 40. 80 Applicant‟s underline. 81 Volume 1 Part A page 40. 82 Ibid. 83 Ibid. -- 15 of 23 -- 16 [50] The applicant then pointed to spelling errors in the document which he stated were not consistent with his level of spelling.84 [51] There is corroboration for JK‟s statement as to the existence of the statutory declaration by her mother DM who stated she recognised the applicant‟s signature and that the document appeared to be signed by the applicant and a justice or commissioner for declarations.85 [52] In an interview86 the applicant was questioned about a complaint lodged by Senior Constable HD in relation to his role as a Commissioner for Declarations87 and whose signature had been forged on a statutory declaration.88 The applicant was not aware of the investigation89 and admitted that he had used HD as a Commissioner for Declarations “quite a few times” in relation to work related matters.90 When asked if the applicant was aware of the document he stated: “Oh JK raised it in court before. I know um she prepared a stat dec for me, did she prepare it or did I. Anyway there was one prepared just to get her off my back, we were still living together but she wanted the house signed over to her and she kept harping and harping and harping about it and just to shut her up I just got the stat dec signed up, oh not signed up but made up ... And gave it to her just to shut her up.”91 [53] Asked if he declared the statutory declaration, the applicant responded: “DA: I just gave it to her. Campbell: Did you sign it? DA: Did I declare it, I signed it. Campbell: You, you signed it? DA: I signed it. I signed it ... Yeah I signed it. Campbell: Which part did you sign? DA: My name, my initials. Campbell: So did you declare it in front of anyone? DA: No. Campbell: Okay. Did – DA: Not that I can remember. 84 Volume 1 Part A applicant‟s submissions page 40. 85 Volume 4 Statement of Witness dated 10 March 2009 page 1166. 86 Volume 3 Transcript of Interview 18 November 2008 between the applicant and Sen Sgt Campbell and Inspector G Sheldon page 1025. 87 Ibid page 1070. 88 Ibid page 1071. 89 Ibid page 1071. 90 Ibid page 1070. 91 Ibid page 1071. -- 16 of 23 -- 17 Campbell: I‘ll just show you that document there UI taken the ah from some of the document[s] we located to-day.92 You‘ve seen that document have you?93 DA: I think she may have had it attached to the stuff that you seized to- day ... And I don‘t think that‘s my signature. It changes all the time but it‘s similar but I don‘t, I‘m not sure ... I couldn‘t tell you if that‘s the actual stat dec that I prepared and, and signed and gave to her. Campbell: So the stamp and the signature on the bottom, are you able to make any comment in relation to that? DA: Mmm no. Campbell: Where did that come from? DA: I‘ve got no idea. Campbell: So is this the, the document that you signed? DA: Oh I couldn‘t say yes or no to that. It looks similar to one that I prepared for JK just to shut her up back then but – Campbell: So you prepared it and signed it, you said that earlier?94 DA: Well I did that and I know, I know I, I know I got that and I signed it but I never got it J-P‘d. Campbell: So How, How would that have come to have the J-P signature on it? DA: Well maybe it‘s something she‘s done. Campbell: Well we‘ve been informed that the statutory declaration was given to her with the um, the witness signature on it. DA: Well if that‘s come from her then I have no doubt that‘s what she‘s told you. Campbell: And we‘ve also heard from HD that is not his signature and he did not, he did not witness that UI. DA: Well I, I never got anything like that signed through HD. Campbell: The point I‘m getting to is that that signature that is contained there ...95 without the signature of the Commissioner of Declarations, is that the dec, is that what you prepared to give to JK? DA: I prepared something similar to that, yes. I can‘t tell you if that‘s the exact one. Campbell: Okay. And these words here, you put all this in? DA: Oh something down that line, I forfeit all rights that I may have in regards to the property at .... That rings a bell. Campbell: And where did you prepare this document at? 92 Ibid page 1030: Snr Sergt Campbell had executed a search warrant that day at the applicant‟s residence ... under the Police Powers and Responsibilities Act 2000. 93 Ibid page 1072. 94 Ibid page 1073. 95 Ibid page 1074. -- 17 of 23 -- 18 DA: Maybe the ... Police Station when I was working there. It was only done just to shut her up ...”.96 [54] The tribunal notes again the definition of misconduct provided at section 1.4 of the PSAA and in relation to the duty concerning misconduct or breaches of discipline, subsection 7.2(1) of the PSAA provides: “conduct means conduct of an officer, wherever and whenever occurring, whether the officer whose conduct is in question is on or off duty at the time the conduct occurs.” [55] Section 7.4 provides the disciplinary action open to an officer authorised to take disciplinary action in relation to misconduct or breaches of discipline. [56] Regulation 9(1)(f) of the PS(D)R lists a ground for disciplinary action as misconduct. [57] The applicant‟s wife relied on his representation to her that the statutory declaration is, once completed, signed and properly witnessed a legal document. JK relied on the applicant‟s representation to her that the „stat dec‟ was a legal document and could be substantive in the matter of a transfer of the house to her. The tribunal notes but does not place weight on the corroborative statement by DM, the mother of JK. [58] It is apparent in the interview that the applicant prevaricates and evades as to whether it is his signature “which changes all the time”. It is noted that the evidence in the interview is that the document in question has been stamped and signed. The Tribunal considers that it is likely that the applicant did fabricate the statutory declaration as charged though the tribunal notes that the charge does not incorporate the swearing under the Oaths Act 1867. The tribunal considers that it is open to conclude that the applicant has demonstrated a willingness to subvert a document which on its face represents the truth of the fact stated in the document and created a document which had the appearance of legal legitimacy. [59] The separation and divorce were clearly acrimonious but entirely personal matters between the parties. The tribunal however considers that the applicant readily “crossed the line” and intermingled his own personal purposes with police resources and subverted them as it suited him. The document that the applicant prepared was intended to deceive and was on its face, on the evidence in the applicant‟s interview, duly signed and stamped albeit with the forged signature of the relevant Commissioner for Declarations. The tribunal also notes that it is the applicant who volunteers in this interview that “Oh JK‟s raised it in court before”. It is also noted however that the Family Court proceedings had not commenced at the time of the date on the “statutory declaration”. [60] Regularly police duties include for example, use of the Commissioner for Declarations to witness documents; certifying true copies of the original and to certify oaths of service for members.97 There is incompatibility between these duties and the preparedness to fabricate a document which is apparently authentic but contains a forged official signature and is 96 Ibid page 1075. 97 Volume 2 Transcript of Interview between Senior Sergeant Campbell and Senior Constable HD 21 October 2008 pages 588- 589. -- 18 of 23 -- 19 intended to deceive about a serious property matter. The fabrication evidences a readiness to manipulate what should be, when validly completed, a document which has some legal status. It exposes a deficient integrity in the applicant. The tribunal considers that the applicant‟s behaviour does affect his “fitness to discharge his duties as a police officer”.98 [61] The tribunal considers that: “Misconduct in his private life by a person discharging public or professional duties may be destructive of his authority and influence and thus unfit him to continue in his office or profession.”99 [62] The tribunal adopts the submission of the respondent‟s counsel when he referred to the authority of Burbury CJ in Henry: 100 “The police force is in the words of Dixon J in Fletcher v Nott (1938) 60 CLR 55 at p77 a ‗disciplined force in the service of the Crown‘. It is a disciplined force in the same sense as the Army is a disciplined force and, conduct by a soldier of as type which constitutes ‗conduct to the prejudice of good order and military discipline‘ may well qualify in the case of a policeman as ‗misconduct against the discipline of the police force.‘ ‗Discipline‘ in this sense involves more than mere obedience to lawful orders. It is a wide concept and I have no doubt extends to conduct of a police officer when off duty so far as that conduct may affect his fitness to discharge his duties as a police officer. Many of the powers of a police officer are exercised by him by virtue of the independent public office he holds and cannot be exercised on the responsibility of any person but himself. His duties are of a public nature and over a wide range of matters affecting the public he exercises original and not delegated authority. (See Encere v The King (1906) 3 CLR 969; Fisher v Oldham Corporation [1930] 2KB 364; A-G for NSW v Perpetual Trustee Co Ltd [1955] 92 CLR 113). Discreditable conduct in his private life may therefore clearly affect his status and authority as a police officer in the discharge of his public duties and in his relations with the public.” [63] The tribunal considers that in this instance, the applicant‟s discreditable misconduct does impact on his status as a police officer and his role in the community.101 Matter 5 [64] Matters 4 and 5 are inter-connected. The respondent had conceded that the material in respect of this charge was largely circumstantial.102 The applicant denied using the stamp.103 The applicant also acknowledged that 98 Henry per Burbury CJ at 91. 99 Henry per Burbury CJ at 91. 100 Respondent‟s Outline of Submissions by Counsel Mr McLeod paragraph 15. 101 See also R v Teachers Appeal Board ex parte Bilney [1984] 35 SASR 492 Mohr J at 496-497. 102 Volume 1 Part A page 149. 103 Volume 3 Interview Snr Sergeant Campbell with applicant 18 November 2008 page 1077. -- 19 of 23 -- 20 once he gave her the document, “... she just shut up.”104 It is open to the tribunal to infer that his wife was satisfied that the document appeared to be complete with the required signature of the JP or Commissioner for Declarations. He denied telling her it was a forgery105 and denied telling her that it was worthless because it had not been witnessed106 but admitted: “I may have addressed that with her to say well go your hardest with that because it‟s not really worth the piece of paper it‟s written on.”107 It was then put to the applicant that he said this because he knew that the signature on it was forged, it was not HD‟s signature108 whereupon he stated he knew nothing about HD‟s signature. [65] The applicant further stated that his advice from a retired Family Court solicitor was that the “so called stat dec that she‟s got wouldn‟t really stand up anyway. It ah has got no legal binding consequences in relation to ...”.109 When asked if he had received this advice prior to saying that to her or after, the applicant responded: “Prior. Prior, no – yeah possibly prior.”110 [66] He admitted he had had HD witness Family Court documents and also police documents.111 [67] In his interview on 21 October 2008 Senior Constable HD denied witnessing or signing the statutory declaration dated 28 March 2007 in respect of the applicant‟s house.112 HD had taken to leaving his Commissioner for Declarations stamp on the top of his desk for easy access113 and it was widely known in the station including by the applicant where he kept it.114 HD stated that he had signed a number of documents for the applicant115 both for police work and the applicant‟s Family Court documents. [68] The copy of the statutory declaration116 contains the correct number for HD as Commissioner for Declarations117 with the forged signature for HD and the official stamp. HD stated that his initial reaction was that the forged signature was done by the applicant since he recognised the applicant‟s capital “D” and he had seen the applicant‟s writing at work over a couple of years.118 The applicant had had the opportunity119 in his work situation to access the stamp. 104 Ibid page 1078. 105 Ibid page 1078. 106 Ibid pages 1078-1079. 107 Ibid page 1079. 108 Ibid. 109 Ibid page 1081. 110 Ibid. 111 Ibid page 1083. 112 Volume 2 Transcript of Interview between Senior Sergeant Campbell and Senior Constable HD 21 October 2008 page 582. 113 Ibid page 592. 114 Ibid pages 596-597. 115 Ibid pages 598-601. 116 Volume 2 pages 576-577. 117 Volume 2 Transcript of Interview between Senior Sergeant Campbell and Senior Constable HD 21 October 2008 page 588. 118 Ibid pages 608-609. 119 Ibid page 140. -- 20 of 23 -- 21 [69] The misspelt statement “I forfet all rights that i may have in reguards to the property situated at ...” is inconsistent. “Forfet” “i” and “reguards” contrast with the correctly spelled words “property situated at ...”. The semi-literate contrasts with the remainder of the statement. [70] It is open to infer that the applicant constructed the document, signed it as “HD”, applied HD‟s declaration number and stamped it with the Commissioner for Declarations stamp. It is also open to infer that the applicant constructed the document so that it was apparently valid but the misspelling was deliberate for insurance lest his offer to forfeit his right to half the house be taken seriously. He could and did state120 that it was not his document and the misspelling was evidence of that. It was a document fabricated with the appearance of legitimacy to “shut her up”, just as the applicant said. It was intended to deceive and did deceive his wife on his own evidence. [71] The deception was elaborate and involved a private matter but what took it beyond the private and into the realm of misconduct was the falsification in the use of a forged signature and the misuse of an official stamp. Matter 9 [72] The applicant admitted he had called RC from the ... Police Station administration area121 but denied he was angry with her.122 RC stated she had sent many texts to the applicant.123 It is open to infer that the applicant had also texted RC.124 It is clear that there was considerable back and forth communication between the two125 as well as accusations and counter accusations.126 There is no corroborative evidence as to the nature of the call the applicant made to RC and there is evidence of a problem on her side.127 [73] The tribunal agrees with the respondent in his view that the applicant used ... Police Station Complex phones to call RC. It is also open to infer that the applicant was dishonest with Senior Sergeant Campbell as to which phone he used128 however it is not open to accept on the requisite standard that the calls to RC were harassing. It is possible that they were made for the purpose of harassment and the tribunal agrees with the respondent in his assessment of the applicant‟s credibility.129 It is also possible that RC may have made calls to the applicant that were harassing in some nature. Nevertheless it is one person‟s word against another and on the evidence before the tribunal it is not possible to reach the requisite standard of proof. 120 Volume 1 Part A Applicant‟s submissions page 40. 121 Volume 4 Interview Senior Sergeant Campbell and Constable DA 18 November 2008 page 1096. 122 Ibid 1098. 123 Volume 4 Statement of Witness RC 14 November 2008 page 1201. 124 Volume 4 Interview Senior Sergeant Campbell and Constable DA 18 November 2008 page 1093. 125 Volume 1 Submissions page 49. 126 Ibid page 50. 127 Volume 3 Transcript of Interview Senior Sergeant Campbell and Ms HV 22 January 2009 pages 1010–1011. Volume 3 Transcript of Interview Senior Sergeant Campbell and Senior Constable SB page 961. 128 Volume 1 Part A page 172. 129 Volume 1 Part A for example page 123. -- 21 of 23 -- 22 Suspended dismissal [74] The tribunal considered the question of suspended dismissal130 for matters 1, 2, 3, 4 and 5. A suspended dismissal would confirm the gravity with which the misconduct is viewed but offer, subject to a 12 month conditional period, an opportunity for the applicant to rehabilitate himself within the QPS and demonstrate that the conduct discussed in these reasons for decision, was aberrant and temporary. [75] The tribunal rejects the use of a suspended dismissal. It considers that the matters as discussed in these reasons illustrate a level of dishonesty and misconduct that is serious and incompatible with the standard of behaviour expected by the community in a police officer. [76] It is difficult to sustain an argument based on off duty, private behaviour needing to be distinguished from public, on duty behaviour when, throughout this matter there has been an unfortunate intermingling of an acrimonious domestic dispute with use of police resources and a readiness to subvert those resources. [77] The tribunal considers reinstatement of the applicant after a period of suspension would be unwise because the evidence is considerable that the applicant demonstrates serious dishonesty and lack of integrity. Sanction [78] The maintenance of community confidence in the integrity of the police force is a matter of fundamental importance. His Honour Brennan J stated in Police Serve Board v Morris (1985) 156 CLR 397 at 411-412: “The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.” [79] Under the PSAA, it is the Commissioner‟s responsibility to ensure the discipline of members of the service.131 The PSAA confers certain powers to enable that responsibility to be carried out.132 One is section 7.4(3) which enables the Commissioner to dismiss a member from the force if he is satisfied of their unsuitability to continue, having regard to their integrity and the potential loss of community confidence were they to continue. [80] The tribunal, for the reasons given in this decision and pursuant to section 24(1)(a) of the QCAT Act in relation to matters 1, 2, 3, 4 and 5 confirms the 130 Pursuant to PS(D)R, section 10(f) and section 5. 131 PSAA section 4.8(1) and section 4.8(2)(l). 132 PSAA section 7.4. -- 22 of 23 -- 23 decision under review. That is, the decision of the respondent to dismiss the applicant from the QPS is confirmed. [81] In relation to matter 9 the tribunal decides pursuant to section 24(1)(c) of the QCAT Act to set aside the decision of the respondent and substitutes the decision that the matter is not substantiated. -- 23 of 23 --