DA v Deputy Commissioner Stewart [2011] QCATA 359

CITATION: DA v Deputy Commissioner Stewart [2011] QCATA 359 PARTIES: DA (Applicant/Appellant) v Deputy Commissioner Ian Stewart (Respondent) APPLICATION NUMBER: APL047-11 MATTER TYPE: Appeals HEARING DATE: 5 October 2011 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President Joanne Browne, Member DELIVERED ON: 9 December 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision made by the Tribunal in matter no OCR033-10 on 17 January 2011 is set aside. 3. The following decision is substituted for it: i) Matter 1: the decision is confirmed. ii) Matter 2: the decision is confirmed. iii) Matter 3: the decision is set aside. The charge is not substantiated. iv) Matter 4: the decision is set aside. The charge is not substantiated. v) Matter 5: the decision is set aside. The charge is not substantiated. vi) Matter 9: the decision is set aside. The charge is not substantiated. vii) The decision to dismiss DA from the Queensland Police Service is -- 1 of 33 -- 2 quashed. viii) DA is suspended from the Queensland Police Service for 6 months effective from 2 February 2010. CATCHWORDS: APPEAL – LEAVE TO APPEAL – Whether leave to appeal necessary – where reasons did not reveal the Member‟s process of reasoning on critical issues – whether leave should be granted APPEAL – FRESH EVIDENCE – Where evidence of events that occurred after the hearing should be admitted – where evidence relates to the credibility of statements made in relation to a charge of forgery – whether leave should be granted DISCIPLINARY PROCEEDINGS – POLICE OFFICER – MISCONDUCT – whether charges substantiated to the necessary standard – whether certain conduct constituted misconduct or was a private matter – whether other conduct constituted misconduct or a breach of discipline – whether sanction excessive Crime and Misconduct Act 2000, ss 219A, 219B, 219BA, 219C, schedule 2 Police Service Administration Act 1990, ss 1.3, 1.4, 7.2(1), (2A)(b), 7A.5(1)(b) Queensland Civil and Administrative Tribunal Act 2009, ss 146, 147 Briginshaw v Briginshaw (1938) 60 CLR 336 applied Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 cited Commissioner of Queensland Police Service v Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1995] QCA 187 applied Hawkins v Pended Bros Pty Ltd (1990) 1 Qd R 135 applied Henry v Ryan [1963] Tas SR 90 applied House v R (1936) 55 CLR 499 applied Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 applied Minister for Immigration and Multicultural -- 2 of 33 -- 3 Affairs v Hu (1997) 79 FCR 309 applied Mulholland v Mitchell [1971] AC 666 applied Orme v Atkinson No TA 2 of 1999 cited Orr v Holmes (1948) 76 CLR 632 applied R V S [2000] 1 Qd R 445 applied Schauer v Banham Misconduct Tribunal – Appeal No. 11 of 1996 cited Smith v Cullinan Misconduct Tribunal – Appeal No. 4 of 1996 cited Sullivan v Department of Transport (1978) 20 ALR 323 applied Wollongong Corporation v Cowan (1955) 93 CLR 435 applied APPEARANCES and REPRESENTATION: APPLICANT: DA represented by Mr P Smith of Counsel, instructed by Gilshenan & Luton RESPONDENT: Queensland Police Service represented by Mr S McLeod of Counsel, instructed by the Office of the Queensland Police Service Solicitor REASONS FOR DECISION Judge Fleur Kingham, Deputy President Introduction [1] The marriage of DA to JK broke down in 2007. During a particularly fractious period of dispute, from March 2007 to October 2008, DA was accused of doing a number of things that were said to constitute misconduct as a police officer. Most allegations related to DA‟s conduct towards JK. The remaining allegations were that he was untruthful in answers to officers enquiring or investigating complaints about his behaviour towards JK or his work performance. [2] DA admitted the substance of much of the conduct, although he denied that all but one matter amounted to misconduct. He denied the most serious allegation; that he forged the signature of another officer Senior Constable HD on a statutory declaration he gave to JK, in which he said he would forfeit any claim over the matrimonial home. [3] DA was subject to internal police disciplinary proceedings between November 2009 and February 2010. Deputy Commissioner Stewart found six of nine allegations were proved and dismissed DA from the police force. [4] DA asked QCAT to review Deputy Commissioner Stewart‟s decision. The review was determined in January 2011, when a Member of the Tribunal set aside the Deputy Commissioner‟s finding in relation to one of the disciplinary charges, (matter 9) but confirmed his findings on the other five. She also determined DA should be dismissed from the police force. -- 3 of 33 -- 4 [5] The disciplinary findings before the Appeal Tribunal are: Matter 1: DA breached protection orders issued under the Domestic Violence and Family Protection Act 1989. Matter 2: DA was untruthful to IS when he told him that he had not accessed JK‟s email account. Matter 3: DA was untruthful to Acting Senior Sergeant SF when he told him that, during a 4 day period, he was home sick with the flu. Matter 4: DA provided false and misleading information in a statutory declaration to JK. Matter 5: DA forged the signature of a Commissioner for Declarations on that statutory declaration. [6] DA has appealed against the findings in relation to matters 2, 3, 4 and 5 and against the decision to dismiss him from the force. [7] In summary, his appeal raises the following issues: (a) Matter 5 (forgery): The Tribunal could not be satisfied to the relevant standard that this charge was proved, given the evidence, including the evidence about the credibility of JK. (b) Matter 4 (statutory declaration): (i) The document DA gave JK was not a statutory declaration because it did not comply with the requirements of the Oaths Act 1867; (ii) In any case, it involved a private matter that does not constitute misconduct. (c) Matter 2 (lie about access to email): This is a breach of discipline, not misconduct. (d) Matter 3 (lie about being home sick): (i) DA did not lie; (ii) In any case, this is a breach of discipline, not misconduct. (e) The penalty imposed was excessive. Leave to appeal is not required [8] Leave is required to appeal on a question of fact or mixed law and fact, but not to appeal on a question of law.1 Although the distinction between an error of law and one of fact or mixed fact and law can be elusive,2 it is an error of law to fail to consider a relevant factor in arriving at a decision.3 [9] The first issue raised on appeal is an error of law. It relates to matter 5, the allegation that DA forged the signature of a colleague, Senior Constable HD, on a document in which he said he forfeited any right to 1 Queensland Civil and Administrative Tribunal Act 2009, ss 146, 147. 2 Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309, 324. 3 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; House v R (1936) 55 CLR 499, 504, 505. -- 4 of 33 -- 5 the matrimonial home. Because the original document was not located and the quality of the document produced to the Tribunal (a photocopy sent, anonymously, to Senior Constable HD) is too poor in quality to be reliably analysed, the case against DA was largely circumstantial. [10] In order to find this charge substantiated against DA it is necessary to accept the document produced to the Tribunal is a true copy of the document DA gave JK and that it is in the same form as it was when he gave it to her. [11] The Tribunal had statements from both DA and JK about the document that he gave her. They gave differing accounts about the form of the document. JK identified a document purportedly witnessed by Senior Constable HD. DA said he signed the document he gave JK but did not declare it before anyone. [12] With respect to the very experienced Member who presided at the review hearing, she did not directly address the question whether the document relied on was a true copy of the original document. Evidently, she considered it was. Necessarily, then, she accepted JK‟s statement about the document but did not explain how she arrived at that conclusion. Nor did she discuss the substantial body of evidence before the Tribunal that bore upon JK‟s credibility. During the appeal hearing, counsel for the Deputy Commissioner conceded as much. [13] There are particular difficulties with the process for disciplining a police officer, who contests a witness‟s statement. Both the original disciplinary proceedings and the review were conducted on the written statements and transcripts of records of interview and other documents. No witness gave evidence or was cross-examined. [14] The Tribunal‟s difficulties inherent in assessing conflicting statements through that process were compounded in this case, because important questions were not put to JK. The police did not ask her to respond to DA‟s explanation for the document relied on in the proceedings (that she had altered it). She was not asked to explain why she could not produce the original document. [15] Given the limitations of the process4, when a finding depends, substantially, on assessing the credibility of persons who make competing statements on a critical issue, it is incumbent on the decision maker to explain their view of evidence bearing on each person‟s credibility. [16] It is an error of law to fail to reveal the reasoning for a decision.5 Failure to discuss a point may be taken as a sign that relevant evidence was ignored.6 [17] Respectfully, the learned Member erred in failing to consider or to explain her view of relevant evidence about JK‟s credibility. She also erred in failing to explain her reasons for her implicit assumption that the 4 Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564, [17]-[19]. 5 Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1995] QCA 187. 6 Sullivan v Department of Transport (1978) 20 ALR 323, 348-9. -- 5 of 33 -- 6 document relied on in the proceedings was a true copy of the document DA admitted he gave to JK. [18] These are errors of law sufficient to allow the appeal. The result must be that her decision on matter no 5 is set aside. [19] If I am wrong in determining the appeal on that basis, I am satisfied this appeal raises sufficient doubt about some of the conclusions reached on the evidence before the Tribunal on review that leave should be allowed. [20] The appeal also raises important questions about the scope of the matters caught by the definitions of misconduct and breaches of discipline (relevant to matters 2, 3 and 4). A decision by the Appeal Tribunal on these matters would provide guidance to those involved in overseeing police discipline and those who are subject to its processes. Accordingly, if leave is required, I consider leave should be granted in this case. [21] The parties asked the Appeal Tribunal to substitute its decision for the one under appeal, if the appeal is allowed. That is the course the Appeal Tribunal has adopted in this case. The application to lead further evidence on appeal is granted [22] DA sought leave to lead further evidence on the appeal in the form of two affidavits. One is from DA and attaches text messages he said JK sent to their daughter‟s mobile phone. The other is from WD, now married to DA, attaching allegations made about DA in an email she received through Facebook. [23] It is fresh evidence, in the sense that it did not exist at the time of the review hearing and recounts events that occurred after that hearing. It bears upon JK‟s credibility. [24] Finality in litigation is the principle that informs the approach on appeal to evidence of matters that have occurred after the hearing.7 Evidence of that nature is admitted only in exceptional circumstances.8 [25] The general rule is that it should be allowed only if it is almost certain9 or reasonably clear10 that the opposite result would have been produced if it had been available at the original hearing. The new evidence must have so high a probative value, with reference to an essential issue, that the only reasonable conclusion is that a decision would have been made in favour of the person seeking to lead the evidence.11 [26] In deciding whether to exercise its discretion to receive fresh evidence on appeal, the Appeal Tribunal should take into account the limitations inherent in a paper based disciplinary appeal process when important facts are contested. Those circumstances warrant a more liberal approach than might be appropriate if a respondent to a disciplinary charge has had the opportunity to test critical evidence led against them. 7 Hawkins v Pended Bros Pty Ltd (1990) 1 Qd R 135, 137. 8 Mulholland v Mitchell [1971] AC 666. 9 Orr v Holmes (1948) 76 CLR 632, 640. 10 Wollongong Corporation v Cowan (1955) 93 CLR 435, 444. 11 Orr v Holmes (1948) 76 CLR 632, 641, 642. -- 6 of 33 -- 7 [27] During the appeal hearing, counsel for the Deputy Commissioner queried the relevance of JK‟s credibility as the only statement she provided that is relevant to the conduct charged relates to matter 5, the alleged forgery. [28] That is the most serious conduct alleged. The police contemplated pursuing a criminal prosecution of DA for forgery but did not do so because of the unsatisfactory state of the evidence. [29] In these proceedings, it seems the Deputy Commissioner and the learned Member on review were willing to draw the inference that the document received by Senior Constable HD is a copy of the same document and in the same form as the document DA admitted he gave to JK. [30] For reasons already given (at [9]-[12]) JK‟s credibility is inextricably linked to that issue. It seems the learned Member considered JK‟s account was credible and, fortified by what she perceived to be prevarication by DA in his answers during an interview about the document, she determined the matter against him. [31] If the fresh evidence is accepted as evidence of JK‟s conduct, it shows she is willing to falsely accuse DA of serious misconduct, that she acknowledged is not true, and to vilify him (by text and on Facebook) using a pseudonym to disguise her identity. In other words, that JK‟s intent towards DA is malicious and she is deceptive in the means she will use against him. [32] If the learned Member had had that evidence before her, I am satisfied that it is almost certain or reasonably clear she would not have accepted JK‟s statement about the document as credible. [33] Given the nature of these proceedings, the seriousness of the allegation and the centrality of JK‟s credibility to findings made by the learned Member about matter 5, I consider these are extraordinary circumstances in which the Appeal Tribunal should receive evidence of events that occurred after the hearing, so as to prevent a miscarriage of justice. [34] Counsel for the Deputy Commissioner did not ask for time to respond to the fresh evidence, if it was allowed, or to cross-examine the deponents. He did not argue the evidence was not reliable, just that it did not meet the test for admission. Matter 5 – forgery The standard of proof [35] The Tribunal must be satisfied the alleged conduct occurred, on the balance of probabilities. Although the purpose of a disciplinary proceeding is not punitive, disciplinary orders may operate as a penalty on the individual, including, as here, preventing the individual from pursuing their occupation. The Tribunal must bear in mind that factor when deciding whether it is satisfied the conduct alleged against a person subject to disciplinary proceedings has been proved. [36] Justice Dixon, as he then was, stated the approach to be adopted: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. -- 7 of 33 -- 8 But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.12 [37] His Honour‟s reference to inexact proofs, indefinite testimony or indirect inferences has particular resonance in this case. Where the evidence on critical points has been untested before the Tribunal, particular care should be taken to properly weigh the evidence, such as it is. [38] For this appeal, Ms Browne, a Member of QCAT, and I constituted the Appeal Tribunal. I am indebted to Ms Browne for her documentation and analysis of the voluminous material (1,205 pages) placed before the Appeal Tribunal, particularly in relation to matter 5. She has concisely extracted the substance of the evidence contained in statements and transcripts of records of interview. She has also prepared a helpful chronology of complaints to and investigations by police. The chronology covers an extended period during which JK raised multiple issues and gave numerous statements; in one month, giving as many as four statements about DA‟s conduct. I gratefully adopt Ms Browne‟s summary and agree with her analysis and conclusions on the evidence. The document [39] The Tribunal does not have the original document. No-one else who might be expected to have it, has been able to produce it. JK does not have it. JK‟s mother, DM, who said she was given it for safe-keeping in 2007, no longer has it. It is not on the file of the proceedings between the parties in the Family Court. JK‟s solicitor does not have it. There is no explanation before the Tribunal about why the original could not be produced. [40] It was common ground on appeal that Senior Constable HD did not sign the document but that his Commissioner for Declarations number was correct. Both parties had samples of Senior Constable HD‟s signature, and the opportunity, therefore, to produce or alter a document so as to appear to have been witnessed by him. [41] DA had an additional opportunity, because he worked with Senior Constable HD at around the time the document seems most likely to have been produced. They were both rostered at the same police station ... in the relevant period. Senior Constable HD had adopted a practice of leaving his stamp on top of his desk. DA would have had relatively easy access to the stamp. [42] The quality of the document sent to Senior Constable HD, and tendered in these proceedings, was too poor for forensic analysis. I agree with Ms Browne that Senior Constable HD‟s observation about the handwriting should be given no weight. He is not an expert in handwriting analysis. An expert was unwilling to attempt to analyse the document. 12 Briginshaw v Briginshaw (1938) 60 CLR 336, 361. -- 8 of 33 -- 9 [43] The circumstances in which Senior Constable HD received the photocopy suggest JK sent it. It arrived in an envelope that wrongly described Senior Constable HD as Constable (suggesting it was sent by someone who did not know him). [44] The document appeared (in September 2008) after no action had been taken by police, apparently, on JK‟s formal complaint of forgery (in April 2008). There is a reference in the police investigation report by Senior Sergeant Campbell, that JK acknowledged sending it after she saw court documents bearing Senior Constable HD‟s signature. However, there is no statement to that effect from JK and the appeal hearing proceeded on the basis that the sender was unknown. [45] Given the lack of forensic or other independent evidence about the document, the Tribunal should scrutinise with great care the evidence about the form of the document DA gave to JK, before concluding the document tendered in the proceedings is the document DA gave to JK. DA’s credibility [46] Respectfully, I do not share the view the learned Member on review took of DA‟s statements to police about the document. She thought he prevaricated about his signature and was evasive. [47] DA admitted he gave JK a document in which he said he forfeited his rights to the matrimonial home, although he did not intend to honour that promise. DA did not admit the signature was his. In light of his admission he deliberately misled JK by signing a document to that effect, his uncertainty about his signature and whether the document was the one he prepared, is not evidence of prevarication or evasion. It is consistent with his evidence that he had not declared the document he gave to JK before a JP or Senior Constable HD. [48] Conduct the subject of two other matters charged against DA is relevant to assessing his credibility. Matters 2 and 3 allege DA lied to officers; once in October 2007 in relation to JK‟s allegation that he accessed her email account without her authority (matter 2) and the other in September 2008 in relation to taking sick leave over a four day period that month (matter 3). [49] I agree with Ms Browne‟s summary of the evidence about those two statements and the view that she took of them. For matter 2, he admits he lied during an informal conversation about the matter and, when formally interviewed, told the truth. He explained the initial lie was due to his embarrassment. [50] For matter 3, DA maintains he was sick, although he was not truthful about what he did during the leave when questioned by his superior officer at the time, SF. He explained this was due to a desire to protect his privacy. He had reason to believe JK was learning things about him from fellow police officers. That fear is not unreasonable given the information JK was able to obtain, for example that he was rostered on with Senior Constable HD during a relevant period. There is also the conversation that DN, an acquaintance of JK, had with DA in late 2007. She said that JK told her she had contact with someone at the station and -- 9 of 33 -- 10 that JK was having a giggle saying [she] knows everything and [DA] doesn’t know who it is. [51] I agree with Ms Browne that SF‟s description of DA as a very good liar was not specific. I was not persuaded. Although DA may not have been completely truthful on those two occasions, he provided explanations that give context to the lies. I do not consider the instances of dishonesty relied upon seriously undermine the credibility of DA‟s statements about the document. JK’s credibility [52] JK said DA gave her the document when they were still living together. She wanted him to leave and wanted some stability for the children. She said the following conversations occurred between them about the document. He told her he didn‟t want the house and would sign it over to her. When she obtained a quote for the legal costs of preparing the documents, he said he would give her a statutory declaration so they could avoid that expense. He prepared the statutory declaration. After saying someone else had signed it, he told her HD had signed it. She later found out HD had been on holidays. She asked DA if it was forged and he said no. Later he told her it was forged and that she couldn‟t use it to get the house. [53] Counsel for DA drew our attention to spelling errors that appear in the document, the note sent to Senior Constable HD with the document and in communications from JK. He invited the inference that she had drafted the document. On its own, I did not consider the common spelling or grammatical errors particularly compelling. Other evidence bearing on JK‟s credibility is of greater significance to the outcome on this charge. [54] In summary, the evidence bearing on JK‟s credibility relates to statements and threats attributed to JK showing malice towards DA and his mother, and a history of complaints made and then withdrawn, including a most concerning allegation that DA sexually abused his daughter. [55] Ms Browne‟s summary reveals an extraordinarily bitter marriage breakdown. From the beginning, JK involved the police in their dispute. As a result of her numerous and persistent complaints, some police officers became enmeshed in the demise of this marriage. One officer in particular, Sergeant DW, was in frequent contact with JK.13 Well before he was appointed as the liaison for JK (in September 2008), he had taken 11 formal statements and received a number of other complaints from JK about DA‟s behaviour. [56] JK had a keen focus on the family home from the outset. While that might be understandable, JK‟s desire to secure the full interest in the family home was unusually fierce. DA and JK agree this was a matter of real concern to her before they separated. DA gave JK something to mollify her. Both DA and JK stated that, after they separated, he told her he would be seeking half the house. JK puts that conversation in October 2007. DA said he obtained advice the document was not enforceable and 13 This is not to imply any improper motive on Sergeant DW‟s part. -- 10 of 33 -- 11 after that he told JK the stat dec would not stand up anyway and to go your hardest with that because it is not worth the piece of paper its written on. [57] In November 2007, during a conversation which JK said led her to fear that DA might kill himself or hurt himself, she volunteered that she said to DA can you sign everything over before you do it. The remark is callous and revealing. [58] JK made repeated allegations of unauthorised access to funds, computer hacking and harassment. She withdrew these in May 2009 stating she did so because of the repercussions from DA – harassment, verbal abuse and physical abuse. By this time, a formal disciplinary investigation was under way in relation to the allegation of forgery. [59] JK also withdrew an allegation that DA had sexually abused his daughter. DA said the allegation was made in front of their daughter and a neighbour. He stated that she said this man abuses his daughter, he is a police officer and he sexually molests his daughter. During an interview for a report to the family Court, JK acknowledged there was no foundation for the allegation. It is a most serious one to make. She told the report writer that she made it in anger. [60] It is hard to avoid drawing the conclusion that JK was intent upon a campaign to attack DA. The timing of spiteful complaints about DA‟s mother, (to Centrelink and about the care of her mother) made anonymously or under a pseudonym, about matters that JK would have had some personal knowledge, gives rise to the inference that she was willing to pursue his mother as well. The fresh evidence [61] The fresh evidence admitted on appeal is consistent with the picture painted by the evidence available on review. The affidavit from DA‟s current wife, WD, attached a printout of a Facebook message from a person identified as BA. WD received it a couple of weeks after QCAT delivered its decision on review. The message contains serious and extravagant allegations about DA, including that he had put a gun to his child‟s head and had a sexual interest in young girls. [62] JK has made a strikingly similar allegation about a gun incident in the past. She made statements to the police in November 2007 to the effect that DA had pointed a gun at their son.14 The similarity between that accusation and the one made in the Facebook message compels the inference that JK is the author of the Facebook message. [63] DA said numerous text messages were received on their daughter‟s mobile phone on 31 March 2011. He attributed them to JK because other messages on the phone from his daughter to that number referred to the recipient as mum or mummy. DA forwarded the messages to his phone and downloaded them to his computer. He also took some photographs of the messages displayed on the screen. 14 It‟s worth noting DA has full care of his son, an unlikely outcome if this allegation was credible. -- 11 of 33 -- 12 [64] In the absence of any contest to this evidence, I accept DA‟s assertion that JK is the author of those messages. [65] Relevant messages, as they appear, are: a) how come you won’t answer your phone when If ring, is it your creepy dad texting b) your queer DA pretending to be AA texting. I am reporting you to kids help line. you are weirdo. They have a name for men that play with little girls c) well if it isn’t creepo answer your phone. We know its the man that likes little kids [66] JK has made and withdrawn a similar allegation in the past. Ms Lewis, the social worker who prepared a Family Report for the purposes of Family Court proceedings attributed the following to JK: she did accuse him though of ‘molesting’ AA in a moment of upset and anger. She said she does not believe though that he has abused AA or that he would likely do so.15 JK‟s motivation in maintaining an allegation she knows to be false, in the Facebook message and the text messages further demonstrates her motive to harm DA and undermines her credibility. [67] The evidence bearing on JK‟s credibility suggests the following. JK bore DA malice. She made numerous allegations that she later withdrew. She made a false allegation of sexual abuse. She later repeated the allegation on Facebook and in text messages. She concealed her identity to mount attacks against DA and his mother. The evidence raises concerns about JK‟s credibility that seriously undermine the weight that can reasonably be placed on her statements about the document. The statement by JK’s mother [68] Before finishing with JK‟s evidence, mention should be made of the apparently corroborating evidence given by her mother, DM. She said JK gave her a document sometime in 2007. She said she stored the original in a duchess at her house and gave a copy back to JK in 2008. She remembered it was signed by DA and a justice or commissioner for declarations. [69] I agree with the conclusion reached by the learned Member at the review hearing, and Ms Browne on the appeal, that no weight should be given to this very specific recollection about how the document was signed. [70] DM had an interest in supporting her daughter. She has not explained why she no longer has the document. She gave no reason why she would remember this particular detail about the document so long after the event. Likelihood of the competing accounts [71] DA‟s behaviour to JK has certainly not been honourable or consistently rational. He admitted to intending to mislead her about his intentions with 15 Extracts from report of Ms Lewis annexed to the submissions by DA to the Deputy Commissioner (exhibit 1 in the appeal). -- 12 of 33 -- 13 respect to the home, in order to shut her up. However, his account is more probable than JK‟s accusation. [72] Given his admitted intention, it makes no sense for DA to forge the document. It was ineffective in the form that he says it was in when he gave it to her. If he wanted to preserve a way to resile from a promise, an unsworn statement would serve as well as a forged promise, and without the risk. If he forged the document, he exposed himself to risk of prosecution when he disclosed the forgery. He had nothing to gain by forging the document and everything to lose. On the other hand, JK‟s evident purpose in creating difficulties for DA was served well by the appearance of a forged document sourced to DA. [73] The evidence before the Deputy Commissioner was unsatisfactory because it was not properly tested. JK‟s statements were not scrutinised as DA‟s were. There are indications that police took JK‟s complaints seriously but not those made against her. Action was taken on her complaints but not on those made by DA‟s mother, for example. [74] I am not satisfied to the requisite standard16 that DA forged the document produced to the Tribunal, taking into account: a) The unexplained absence of the original document; b) The lack of independent evidence about the form it was in when DA provided it to JK; c) The failure by police to test JK‟s statements about the document; d) The evidence about JK‟s motivation to harm DA; e) JK‟s history of making, withdrawing and then maintaining an admittedly false and very serious allegation of sexual abuse; and f) The improbability that DA would choose to unnecessarily expose himself to the risk of prosecution for forgery in order to avoid a false promise. The decision of the Deputy Commissioner on matter 5 should be set aside and substituted with the decision that the charge is not substantiated. Matter 4 – false and misleading statement in a statutory declaration Does it matter if the statutory declaration did not comply with the requirements of the Oaths Act? [75] The Appeal Tribunal is not satisfied anyone other than DA signed the document before he provided it to JK. DA‟s counsel argued charge 4 was not made out because the document was not declared before a Commissioner for Declarations. Charge 4 alleged DA provided false and misleading information statements in a Statutory Declaration. The further and better particulars of that charge included the assertion that DA prepared a Statutory Declaration under the provisions of the Oaths Act 1867. 16 See [35]-[38]. -- 13 of 33 -- 14 [76] His counsel argued this required proof that the document complied with the provisions of the Oaths Act 1867. Because the document was not sworn before and signed by a Commissioner for Declarations the document did not comply with ss 13 and 14.17 Counsel for the Deputy Commissioner did not address the argument. [77] Although these are not criminal proceedings, the analogy is apt, at least in defining the conduct under consideration. In criminal proceedings, the purpose of particulars is twofold: to eliminate the risk of duplicity and to ensure the person accused has sufficient indication of the allegation made against them.18 [78] Given charge 5 alleged DA forged the signature of a Commissioner for Declarations, it is fanciful to argue the relevant particular meant that charge 4 would only be made out if the Statutory Declaration was executed in accordance with the requirements of the Oaths Act 1867. If that were the case, the two charges could never stand together. Plainly, that was not intended. [79] Rather, the particular seems to me to identify the format of the document DA presented to JK. DA admitted he gave JK a statutory declaration.19 [80] Granted, for DA to present a document that seemed to convey that he had declared his statement of intention was true, when it was not, is more serious conduct than for him to present a false statement of intention in a document that was signed but unsworn. However, to establish the conduct charged, what had to be proved was that the statement was false and misleading and that it was conveyed on a document in the format of a statutory declaration. DA admitted both these things. [81] That does not mean that the conduct described in charge 4 is, in fact, a disciplinary offence. This brings me to a more substantial objection to charge 4. Is the false and misleading statement misconduct or is it a private matter? [82] On review, the learned Member considered matter 4 was misconduct because there is an incompatibility between police duties and a preparedness to fabricate a document that is apparently authentic but which contains a forged official signature and is intended to deceive about a serious property matter. This rests on the finding that DA forged Senior Constable HD‟s signature. Having decided that it is not satisfied that he did, the Appeal Tribunal must reconsider whether DA has engaged in misconduct. [83] The Appeal Tribunal is left with his admission that he deliberately misled his wife in a signed document about his intentions about the family home. [84] The effect of the relevant provisions of the Police Service Administration Act 199020 and the Crime and Misconduct Act 200121 is that QCAT only has jurisdiction to deal with conduct that qualifies as misconduct. 17 These sections prescribe before whom the declaration may be made and what form the declaration should take. 18 R v S [2000] 1 Qd R 445, 452. 19 Section 21 material, vol 3 p 1071. -- 14 of 33 -- 15 [85] The parties agree a police officer‟s off duty conduct may be the subject of disciplinary proceedings.22 Counsel for the Deputy Commissioner submitted that, as a matter of law, there is no requirement that the nexus of the conduct relate solely to matters associated with the duties of a police officer. [86] As I understood his submissions, that is not what counsel for DA argued. His submission was that this particular conduct occurred outside of the public eye, and could not fall within the definition of misconduct. To qualify as misconduct, off duty conduct must have sufficient nexus to a person‟s service or status as a police officer. [87] In the CMC Act, misconduct means either official misconduct, which is not relevant here, or police misconduct.23 The definition of police misconduct is: ‘conduct…of a police officer that— (a) is disgraceful, improper or unbecoming a police officer; or (b) shows unfitness to be or continue as a police officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer’.24 [88] Each element of the offence includes a reference to a police officer. That implies there must be a nexus between the conduct and the reputation and expectations of a police officer. [89] Both parties referred the Appeal Tribunal to the case of Henry v Ryan, in which Chief Justice Burbury made observations about the concept of discipline, as it related to the police force. He described discipline as a wide concept that 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. He said: 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.25 [90] Counsel for DA did not quibble with that statement of principle, but distinguished the finding of misconduct in that case on the facts. I accept the conduct is not analogous. [91] However, the statement of principle accords with the approach adopted by the former Misconduct Tribunal in relation to police discipline matters in Queensland. In Orme v Atkinson26, the Tribunal drew a line between 20 Police Service Administration Act 1990, ss1.4, 7.4(2A)(b), 7A.5(1)(b). 21 Crime and Misconduct Act 2001, ss 219B, 219BA, 219C, schedule 2, definition of misconduct. 22 That is clear enough from the definition of conduct in the Police Service Administration Act 1990, s 7.2(1), which applies to on and off duty conduct. That section imposes an obligation on officers to report misconduct or a breach of discipline by other officers. 23 Crime and Misconduct Act 2001, schedule 2, definition of misconduct. 24 Crime and Misconduct Act 2001, schedule 2, definition of police misconduct. 25 Henry v Ryan [1963] Tas SR 90, 91. 26 Orme v Atkinson No TA 2 of 1999. -- 15 of 33 -- 16 conduct in and out of the public eye. In Smith v Cullinan, Dr Forbes considered conduct that occurs in an officer‟s private life will not qualify as misconduct, unless it is conduct that a reasonable citizen may confidently be expected to regard as morally or socially blameworthy in a police officer, qua police officer.27 [92] The distinction between private and public conduct is also drawn in the Police Service Administration Act 199028 and the Queensland Police Service Human Resource Management Manual.29 [93] Counsel for the Deputy Commissioner did not offer any specific nexus between a false statement made in an officer‟s personal life and their reputation, status or authority as a police officer. DA‟s deliberate and false statement of intention was dishonourable. It reflects poorly on his character, but the Appeal Tribunal must assess this in the context of the unwanted breakdown of a lengthy marriage. Not every act of dishonesty is an officer‟s private life can be considered misconduct. [94] On the Appeal Tribunal‟s findings, there was no direct connection to his duties, status or authority as a police officer. It did not involve any use or abuse of police information or resources. The conduct only had implications for the property dispute with his wife. The Appeal Tribunal is not satisfied the conduct amounts to misconduct. Matter 4 should be dismissed. Matters 2 and 3 – are the lies told by DA a breach of discipline rather than misconduct? [95] DA was found to have been untruthful on two occasions. He disputes what he said amounted to misconduct. [96] The Police Service Administration Act 1990 draws a distinction between misconduct and a breach of discipline. The latter is conduct that is a breach of that Act, the Police Powers and Responsibilities Act 2000 or a direction of the Commissioner given under the Police Service Administration Act, which is not misconduct.30 [97] It could hardly be contested that every lie told by a police officer does not amount to misconduct.31 The answer, in each case, will depend on the nature of the lie and the context in which it is given. Matter 2 – lie about accessing JK’s email account [98] With respect to matter 2, DA admitted he lied to IS when he said that he did not access JK‟s email account, as she had accused him of doing. A few weeks later, when under a directed formal disciplinary interview, DA told the truth. He explained he told his earlier lie out of embarrassment and humiliation. [99] The Appeal Tribunal accepts there is a distinction that can be drawn between an informal conversation and a formal interview. That is not the 27 Smith v Cullinan Misconduct Tribunal – Appeal No. 4 of 1996, p 4 per Dr Forbes. 28 Police Service Administration Act 1990, s 1.3. 29 Queensland Police Service Human Resource Management Manual 8 18.3.2. 30 Police Service Administration Act 1990, s 1.4. 31 Schauer v Banham Misconduct Tribunal – Appeal No. 11 of 1996. -- 16 of 33 -- 17 only consideration. The enquiry related to DA‟s conduct against a person who sought police assistance in relation to a breach of privacy. It was, arguably, conduct that could justify a domestic violence and family protection order. [100] Because of the lie, IS was required to make further investigations into the complaint made by JK. As a police officer, DA would have understood the purpose of the enquiry and the consequence of his lie. [101] DA had a duty of integrity. He understood the enquiry was made because of the complaint made by his then wife. Although the discussion was informal, he knew that IS was investigating a complaint, not making an enquiry in another capacity. [102] Although it might be considered a marginal case, I am satisfied it is misconduct because it undermines his authority as a police officer that, during a police investigation, he would lie to protect himself. His motivation for lying is a relevant factor for sanction but, in this case, does not mean the lie was not misconduct. Matter 3 – lie about whereabouts during sick leave [103] With respect to matter 3, the explanation about his whereabouts during a period of sick leave, DA does have a genuine medical certificate. The lie alleged against him is that he told Acting Senior Sergeant SF that he was home sick with the flu between 12 and 16 September 2008. The enquiry was made upon his return to work on 18 September 2008. [104] In fact, DA was at the Gold Coast for at least some of the period of sick leave. Various versions were given by DA, but ultimately he conceded he was on the Gold Coast and not at home. He maintained, however, that he was sick. I do not accept the submission that, because he had a medical certificate for the period, his answer was not, in fact, a lie. He said he was at home when he was not. [105] It is clear enough JK prompted or provided information for this enquiry. She sent an email to Sergeant DW on 15 September 2008 reporting that DA had taken a sickie on 12 September, but was not unwell. [106] DA had some cause to be suspicious that information about him might be revealed to JK. Some evidence of the basis for that suspicion has already been canvassed. The enquiry also demonstrates how responsive the police were to her communications. [107] The point remains, however, that he was being questioned by his superior officer about his absence from work and he was dishonest in his response. When IS formally interviewed him about this lie, DA indicated he would have told the truth straight up if he had known there would be a full investigation. [108] This is another example of DA lying to protect his personal interests and drawing fine distinctions to justify when he will or will not tell the truth. While his motivation in lying was to protect his privacy, this is not a lie about a private matter, it is about his reason for not being able to fulfil his duties as an officer. -- 17 of 33 -- 18 [109] Nevertheless, I am not satisfied the lie qualifies as misconduct. It relates to his obligations as an employee, rather than his conduct towards another person, as was the case for matter 2. I do not consider the reasonable citizen would consider a lie about sick leave as morally or socially blameworthy of a police officer, because he was a police officer. [110] That does not mean it is not worthy of sanction. However, I consider it falls within the concept of a breach of discipline and, therefore, outside the jurisdiction of the Appeal Tribunal. [111] The conduct charged by matter 2 is substantiated. [112] The conduct charged by matter 3 is not substantiated. [113] No complaint was made about the learned Member‟s finding in relation to matter 9. The Appeal Tribunal will make an order in the same terms, that is that the matter is dismissed because the charge is not substantiated. Sanction [114] The implications of earlier findings are that the conduct to be sanctioned is matter 1 (breaches of domestic and family violence protection orders) and matter 2 (the lie about accessing JK‟s email account). The penalty of dismissal was indicated by the most serious charges against DA (matters 4 and 5). As they have been set aside, the Appeal Tribunal must consider the question of sanction afresh. What were the breaches of the domestic and family violence protection order? [115] There were three breaches of domestic and family violence protection orders that JK had taken out against DA. The first was a request that JK tell the three children of the marriage that he loved them. The second was that he told JK to get fucked. The third was sending some text messages, at least some of which seem to have been in response to messages from her. [116] There was no actual or threatened violence. The breaches occurred shortly after his separation from JK when he was distressed by the breakdown of a lengthy marriage. He then suffered from an adjustment disorder with depressed mood, and underwent treatment for that condition. The prosecution supported the submission that no conviction should be recorded and a good behaviour bond imposed. That indicates the view taken by both prosecutor and Magistrate about where his conduct fitted on the scale of seriousness. [117] There is an extra element to a breach of such an order by a police officer. Although, in general terms, a police officer has a role at large to enforce the law, there is a more direct involvement by police in enforcing compliance with these orders. They are at the front line of regulating behaviour in circumstances of domestic conflict. If police officers fail to comply with them, this undermines their effectiveness to deter unacceptable behaviour by others. In my view, a member of the public would reasonably consider that repeated breaches of an order, even without actual or threatened violence, is morally or socially blameworthy of the officer, as a police officer, and warrants more than a nominal sanction. -- 18 of 33 -- 19 What sanction should be imposed? [118] DA was sworn in as a police officer in April 2003. The breaches of the order and the lie occurred in the context of the breakdown of a lengthy marriage. At the time of discipline, he had worked for a further 18 months after pleading guilty to the charges. He had completed his good behaviour bond. [119] The purposes of disciplinary proceedings are to protect the public, to uphold ethical standards and to promote and maintain public confidence in the police.32 Bearing those objectives in mind and the conduct substantiated, dismissal is an excessive penalty. The order should be set aside and the dismissal quashed. [120] A period of suspension of six months was in order, given DA‟s lie prolonged a police investigation into his own conduct and he repeatedly breached an order designed to restrain his contact with JK. That order is effective from the date of Deputy Commissioner Stewart‟s order and, therefore, the suspension term has already been served. Ms Joanne Browne, Member [122] I have read the reasons of the Deputy President and agree with her reasoning, conclusions and orders. My findings are based on an analysis of the evidence presented to the Deputy Commissioner (s 21 material) and the fresh evidence allowed on appeal that bears, in particular, on matters 4 and 5. The evidence before the Appeal Tribunal was voluminous (1,205 pages) and the only way to sensibly re-hear the matter was to prepare a detailed chronology (Appendix „A‟) which details a history of the matters relevant to the proceedings. This chronology would have been of assistance to the Appeal Tribunal and the learned Member at first instance. The chronology provides a context in which the evidence (relating to matters 4 and 5) may be assessed. The preparation of an agreed chronology in future hearings of matters of this nature would greatly assist the Tribunal to ensure that important evidence is not overlooked. The following is an analysis of the evidence presented to the Deputy Commissioner that bears, in particular, on matters 4 and 5. Attached to my reasons is a chronology (Appendix „A‟) which details a history of the matters relevant to the proceedings. It provides the context in which the following evidence may be assessed. Matter 5 [123] DA does not dispute that a document (statutory declaration) was prepared “maybe sometime at the beginning of [2008]. Maybe late [2007]”.33 [124] The document (statutory declaration) was given to JK by DA and related to a property at .... The statement provided that DA would “forfeit all rights that [he] may have in regards to the property”.34 32 Crime and Misconduct Act 2000, s 219A. 33 Section 21 material, vol 3 p 1080. 34 Section 21 material, vol 3 p 1075. -- 19 of 33 -- 20 [125] DA separated from JK on 30 September 2007.35 The property at ... was purchased during the marriage.36 [126] DA did not, however, have any intention to assign his rights to the property (at ...) to JK (in late 2007 or early 2008) – he gave the document to JK “to shut her up”.37 [127] There was an investigation undertaken by police (Senior Sergeant Campbell) following complaints (of forgery) made by JK on 21 April 2008 and Senior Constable (SC) HD on 17 September 2008. [128] DA (after investigation) was not charged with a criminal offence in relation to the allegation of forgery. [129] JK reported to Sergeant DW on 21 April 2008 that DA forged SC HD‟s signature on a document (a statutory declaration) given to her (relating to the property) in 2006.38 [130] SC HD contends that on 15 September 2008 he received a photocopy of a document (statutory declaration) in the station mail.39 The document contained a signature purporting to be that of SC HD and a Commissioner for Declarations stamp. [131] It is not disputed that the signature (“HD ...”40) which appears on the document is not SC HD‟s signature. However, the original document (statutory declaration) could not be located – attempts were made (by Senior Sergeant Campbell) to obtain the document from JK, JK‟s solicitor, JK‟s family and the Family Court of Australia.41 [132] It was not possible to conduct any forensic examination of the document (of the handwriting) received by SC HD on 15 September 2008. The Commissioner for Declarations Stamp and the signature of SC HD which appeared on the document could not be compared to SC HD‟s stamp and his signature due to the “poor quality” of the document (it was a “copy”).42 [133] It has not been established (on the evidence) whether the photocopy of the document (statutory declaration) received in the station mail by SC HD on 15 September 2008 is the same document that DA agrees he gave to JK (in early 2007).43 [134] SC HD witnessed “a quantity of documents (between 10 and 20 pages)” for DA relating to Family Court matters in early 2008 (between 14 January and 15 February 2008).44 35 Agreed Statement of Facts filed 5 October 2011, p 3. 36 Agreed Statement of Facts filed 5 October 2011, p 3. 37 Section 21 material, vol 3 p 1071 at [1430], vol 3 pp 1076, 1079. 38 Statement of JK dated 21 April 2008, s 21 material, vol 2, p 567. 39 SC HD also prepared a statement dated 2 February 2009 and participated in a directed disciplinary interview on 21 October 2008. The Complaint is attached to the Statement, s 21 material, vol 2, p 577. See transcript of interview, vol 2 p 584. 40 Section 21 material, vol 2, p 571. 41 Investigation Report dated 9 June 2009, s 21 material, vol 2, p 419. 42 Investigation Report (Senior Sergeant Campbell), s 21 material, vol 2, p 419 [4.31]. 43 Section 21 material, vol 3, p 1041 at [1430]. 44 Section 21 material, vol 2, pp 571 and 598 at [510]. -- 20 of 33 -- 21 [135] It is accepted that both DA and JK would have had copies of the documents relating to the Family Law Court matters witnessed by SC HD.45 [136] DA states that he did not declare the document (statutory declaration) he gave to JK (in 2007 or 2008) before a “JP”.46 [137] DA denied (when questioned) that he “signed” SC HD‟s signature and that he used SC HD‟s stamp.47 DA suggests (by way of an explanation) that JK may be responsible for the “JP” signature. DA states, “well, maybe its something she‟s done”.48 [138] JK contends that the document (statutory declaration) given to her by DA in relation to assigning all his interest (in the property) is a forgery. JK states that DA told her the document was “forged” and that she could not use the document to “get the house”.49 [139] It was never put to JK during the investigation (by police) as to whether she was responsible for the “JP signature” on the document as alleged by DA. [140] There is reference in the police Investigation Report (of Senior Sergeant Campbell) that JK “stated she sent the letter titled ‘Your forged signature’ [emphasis added] and [had] done this when she saw Court Documents with the signatures of HD”.50 There is no independent evidence before the Appeal Tribunal to support this - that JK sent the document (statutory declaration) to SC HD in the station mail. Contested and independent evidence [141] The charge (matter 5) if substantiated has serious consequences and is tantamount to a finding of forgery. [142] In making findings I must be satisfied to the requisite standard as held in the decision of Briginshaw having regard to all of the evidence, including any issues of credit which may arise from the independent evidence (before the Appeal Tribunal), that DA forged the signature of SC HD on the document (statutory declaration). [143] DM (JK‟s mother) corroborates the evidence given by JK in relation to the forged document that JK alleges was given to her by DA. DM recalls that a document (a statutory declaration) was given to her by JK sometime in 2007 – it related to “DA giving or signing over his share of the house” and “appeared to be” signed by DA and a “justice or commissioner for declarations”.51 45 JK states (in her statement dated 21 April 2008) that she is able to “present” other documents with SC HD‟s signature, s 21 material, vol 2, p 568. 46 Section 21 material, vol 3, p 1073. DA states that the document was not “Jp‟d or Commissioner Dec or anything” (s 21 material, vol 3, p 1078). 47 Section 21 material, vol 3, pp 1077 and 1085 at [1860]. 48 Section 21 material, vol 3, p 1073. 49 Section 21 material, vol 2, p 568. 50 Section 21 material, vol 2, p 416 at [4.23]. 51 Section 21 material, vol 4, p 1166. -- 21 of 33 -- 22 [144] I attach no weight to the evidence of DM in relation to the description of the document. DM provides no reasoning or basis upon which she can recall (from some two years prior) the nature of the document – that it was signed by a justice or Commissioner for Declarations. I do, however, accept DM‟s evidence that a document (statutory declaration) was given to her by JK and that the document related to DA assigning his rights or interests in the property at ... (to JK). This is not disputed by DA – that he gave a document (statutory declaration) to this effect to JK. [145] SC HD gives evidence about the alleged forged signature which appears on the photocopy of the document received by him in the station mail. SC HD states that the signature (of SC HD) was DA‟s handwriting because of the letter “D” – it is “written in a manner that it reminded [him] of the way [DA] does his capital D‟s”.52 [146] SC HD is not a handwriting expert. I find that the evidence of SC HD in relation to the signature (of SC HD) is opinion evidence only and I attach no weight to SC HD‟s evidence in relation to DA‟s handwriting. [147] SC HD refers to his suspicion as to who may have sent the photocopy of the document to him – he assumed it was someone he did not know as the envelope was addressed to him as constable and not senior constable.53 I attach no weight to SC HD‟s evidence in relation to his “suspicions” about who sent the document to him in the station mail. [148] SC HD also gave evidence (relevant to matter 5) about information given to him by another officer, WP. SC HD refers to an alleged conversation that took place between WP and Sergeant DW (“shortly after” 15 February 200854) – DW said to WP “tell HD to be careful DA‟s forging his signature…”.55 [149] There are no statements before the Appeal Tribunal from either Sergeant DW or WP. I cannot be satisfied having regard to the requisite standard that the evidence as to an alleged independent conversation that took place between DW and WP (regarding DA forging signatures) is credible. I attach no weight to the evidence of SC HD in relation to DA allegedly forging his (SC HD‟s) signature. [150] There are various statements (included in the section 21 material) prepared by JK in relation to allegations of fraud (unauthorised access to funds), computer hacking and harassment concerning DA from early 2007 to 6 May 2009 (inclusive). JK, however, subsequently withdrew her complaints on 6 May 2009. [151] There is also a history of investigations (detailed in the chronology) following complaints made by JK to police including the compiling of numerous statements (by police) on behalf of JK. There were (for example) numerous statements prepared by Sergeant DW for JK – two statements on 7 November 2007, statements on 8 January 2008, 9 52 Section 21 material, vol 2, p 608. 53 Section 21 material, vol 2, p 622. 54 Section 21 material, vol 2, p 627. 55 Section 21 material, vol 2, p 627. -- 22 of 33 -- 23 January 2008, 21 April 2008 and 5 June 2008, and four statements on 31 January 2008. [152] The evidence of DJB (DA‟s mother) corroborates the evidence given by DA in relation to the volatile nature of the relationship between DA and JK. [153] There is no evidence before the Appeal Tribunal to challenge the veracity of the evidence given by DJB about the history of complaints (also referred to in the chronology) including threatening phone calls, documents being accessed from her computer, a complaint made to the Elder Abuse Prevention Unit (about her mother), incidents involving assault and threats by JK. Inspector Sheldon during the interview with DA on 18 November 2008 confirmed that enquiries revealed that DA‟s son (JJ) had used passwords to access “various things” belonging to DJB (as previously contended by her).56 [154] I accept the evidence of DJB in relation to the volatile nature of the relationship between DA and JK also evidenced in the various statements made by JK to police (detailed in the chronology). [155] The evidence given by DA in relation to matters 2 and 3 is relevant to issues of his credit. DA admitted during a formal interview with IS on 19 October 2007 that he did lie about accessing JK‟s locked email account.57 [156] DA provides an explanation (however) for his actions. DA contends that he lied “only because of sheer embarrassment and humiliation” in the context of having found out that JK had been “cheating on the internet”.58 [157] DA also provides an explanation for his absence from work from 12 September 2008 to 16 September 2008 (inclusive), relevant to matter 3 and why he lied about his whereabouts – he was at the Gold Coast and not at home. [158] During an interview with IS on 18 November 2008 DA referred to his concerns about JK “finding out” about what he is doing and the reason why he said he was at home (and not on the Gold Coast) was that he knew someone was “releasing information”.59 DA states that “[he] did it because [he doesn‟t] want [his] ex knowing anything about [him]”.60 DA contends that he was “under a lot of pressure”61 and confirmed that he was sick during his period of absence from work.62 DA produced a medical certificate for the relevant period of absence (sick leave).63 [159] SF gave evidence about DA‟s performance as a serving police officer and the conflicting evidence (“the lies”) given by DA in relation to matters 2 and 3 – accessing JK‟s email account and sick leave. 56 Section 21 material, vol 4, p 1118. 57 Section 21 material, vol 1, p 82. 58 Section 21 material, vol 1, p 79. 59 Section 21 material, vol 3, p 842. 60 Section 21 material, vol 3, p 842. 61 Section 21 material, vol 3, p 844. 62 Section 21 material, vol 3, p 844. 63 Section 21 material, vol 4, p 1205. -- 23 of 33 -- 24 [160] SF‟s evidence about DA‟s conduct as a police officer and DA‟s history of lying is non-specific. I attach no weight to the evidence of SF. Disciplinary findings (Matter 5) [161] I find that based on the evidence of DA, JK and DM, a document (statutory declaration) was prepared by DA in 2007. [162] There is an unresolved issue, however, about whether the document sent to SC HD in the station mail on 15 September 2008 is the same document prepared by DA (and given to JK) in 2007. The Appeal Tribunal was not invited to draw inferences from the document (received by SC HD) and to compare it to other documents signed by DA. [163] I cannot be satisfied to the requisite standard that DA forged the signature of SC HD on the document (statutory declaration) sent to SC HD. JK‟s evidence remains uncontested. It was never put to her that she forged the signature of SC HD as alleged by DA. Although JK alleges she was the recipient of an original document (in 2007) which contained the forged signature of SC HD, the original document was never produced by JK notwithstanding attempts made to locate the document by police investigating the complaint. [164] The evidence before the Appeal Tribunal in relation to the acrimonious breakdown in the marriage between DA and JK is compelling. There is a history of accusations relating to threats, harassments and verbal and physical abuse (as detailed in the chronology). There is also evidence before the Appeal Tribunal which demonstrates a significant involvement by police to report and investigate the numerous complaints made by JK about DA including the preparation of statements (sometimes two to four statements were prepared on the same day) and making enquiries with other witnesses including police officers. [165] It is open for me to draw inferences from the circumstantial evidence before me. The circumstances surrounding the discovery of the document (statutory declaration) and how it came to the attention of police are suspicious. JK made her statement about the alleged forgery of the document (by DA) on 21 April 2008. The document (dated 28 March 2007) was received by SC HD (anonymously in the station mail) on 15 September 2008, some five months later. [166] JK, however, was (as evidenced in the chronology) in regular contact with police during the period from 21 April 2008 to September 2008 (inclusive). Statements were made by JK (to police) on 24 April 2008 and 5 June 2008, complaints were made on 1 May 2008, 24 June 2008, 16 July 2008, 19 August 2008 and 9 September 2008 (to the Minister of Police and the Crime and Misconduct Commission); and yet the document was sent by subterfuge to SC HD in the station mail on 15 September 2008. [167] JK was unable to produce the original document (statutory declaration) and she was not questioned about DA‟s allegation that she (herself) was responsible for the forgery. -- 24 of 33 -- 25 [168] The evidence when considered in the context of an acrimonious separation raises questions about what (if any) motivation DA would have to forge such a document. [169] DA admits that he did not intend to give JK something that was legally binding and it was therefore not necessary for him to forge the document (before a Commissioner for Declarations) – he knew it was not legally binding. Assuming JK‟s version is accepted (that the document was forged) DA would then have to reveal that the document (being used in Family Court proceedings) is a forgery and he would therefore expose himself to possible criminal prosecution. [170] JK, however, had more to gain by producing a forged document – she can damage DA‟s reputation which will have serious repercussions to his position as a police officer, the police having undertaken investigations into the complaints made about DA (by JK). [171] The fresh evidence admitted on appeal is also compelling and relevant to JK‟s credit. The fresh evidence includes Facebook messages (referred to in WD‟s affidavit) containing allegations that DA had put a gun to his child‟s head and had a sexual interest in young girls. There are also numerous text messages (attached to DA‟s affidavit) referring to DA as being “creepy” and “queer”. I agree with the findings made by the Deputy President that there are strong and strikingly similar allegations in the Facebook and text messages received by WD and DA (after QCAT delivered its original decision) to past complaints and allegations made by JK. [172] The only reasonable inference to be drawn by me is that it is more probable than not given the consequences facing DA (criminal prosecution for forgery) that he did not forge the document and given the volatile history between DA and JK (including issues of credit identified from the fresh evidence admitted on appeal) that JK (herself) forged the document. I cannot be satisfied to the requisite standard that matter 5 is substantiated. -- 25 of 33 -- 26 Appendix “A” Chronology Date Relevant Event Early 2007 DA gives JK a document (statutory declaration) stating that he will “forfeit all rights” that he may have in relation to the property at ...64 2007 DM states that JK gave her a document (statutory declaration) which she stored in a “duchess” at [her] house and gave a copy of one of the documents back to JK in 2008.65 The document related to DA assigning his interest in the property at ... and appeared to be “signed by DA and a justice or commissioner for declarations”.66 28/03/07 The date of the document (statutory declaration) sent anonymously to SC HD. A copy of the police duty roster shows DA and SC HD were rostered on duty on 28 March 2007.67 26/09/07 DA contacts JK (by telephone) to discuss emails exchanged between CB and JK.68 30/09/07 DA and JK separate.69 The statement of JK (dated 7 November 2007) refers to the following incidents on 30 September 2007: DA tells JK that he had “rung CB in Melbourne”. DA rings JK at work. JK speaks to Senior Sergeant PP about DA “ringing her” and CB. JK arrives home to find IS talking to DA. JK tells IS about DA phoning her at work. DA tells JK that he would send emails (from CB) to “expose him” and to JK‟s family and work if she did not “get back” with him.70 DA tells JK that he has been to his solicitor and wants “half of the house”.71 64 Section 21 material, vol 3, p 1075. 65 Statement of DM dated 10 March 2009, s 21 material, vol 4, p 1166. 66 Statement of DM dated 10 March 2009, s 21 material, vol 4, p 1166. 67 Section 21 material, vol 2, pp 571, 578. 68 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 158. 69 Agreed Statement of Facts filed 5 October 2011, p 3. 70 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 158. -- 26 of 33 -- 27 DA produces emails (from CB) to JK.72 JK telephones IS to complain about “the actions of [DA] and the emails”.73 The emails are returned to JK later that night.74 DA telephones JK stating he is going to give the emails to “BC‟s boss”. JK tells DA that “it [is] over”.75 16/10/07 Temporary domestic violence order issued by the ... Magistrates Court.76 06/11/07 DA breaches temporary order by contacting JK.77 06/11/07 DA telephones JK at home. JK has concerns that DA will “kill himself or hurt himself”. JK states (to DA): “can you sign everything over before you do it”.78 06/11/07 DA is admitted to the ... General Hospital Mental Health Unit and discharged on 9 November 2007. DA reported to be treated for “adjustment reaction with depressed mood” relating to a “relationship breakdown with his wife”.79 07/11/07 JK provides two statements to DW in relation to:80 a gun DA allegedly “pointed at CC at home” (on 9 February 2006); various incidents “early” in their marriage involving DA‟s police firearm; JK has “great concerns” over DA‟s mental health (following incident on 6 November 2007). 08/11/07 DA breaches temporary order.81 DA telephones JK at work.82 71 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 160. 72 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 160. 73 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 160. 74 Section 21 material, vol 1, p 160. 75 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 160. 76 Agreed Statement of Facts filed 5 October 2011. 77 Agreed Statement of Facts filed 5 October 2011. 78 Section 21 material, vol 1, p 167, JK reported the incident in a statement dated 7 November 2007. JK also prepared statements dated 8 January 2008, 9 January 2008 and 21 January 2008 in relation to alleged incidents concerning DA in contravention of a Domestic Violence Protection Order (dated 27 November 2007), s 21 material, vol 1, pp 167, 171, 174, 176, 178, 180. 79 Statement prepared by a qualified medial practitioner (Dr TMR) dated 7 January 2008, s 21 material, vol 2, p 277. 80 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 160. 81 Agreed Statement of Facts. 82 Statement of JK dated 31 January 2008, s 21 material, vol 1, p 179. -- 27 of 33 -- 28 27/11/07 A Temporary domestic violence protection order is issued against DA at the ... Magistrates‟ Court83 (and varied on 11 March 2008 and 3 June 200884). 23/12/07 (to 31/01/08) DA breaches temporary order.85 DA sends text messages to JK‟s phone on 24 and 25 December 2007.86 Late 2007 (early 2008) DN (an acquaintance of JK) tells DA that JK has “contact with someone” at the station and that JK “was having a giggle saying [she] knows everything and [DA] doesn‟t know who it is”.87 Late 2007 (early 2008) A retired Solicitor (HS) advises DA that the “stat dec” would not “stand up anyway”.88 Late 2007 (early 2008) DA has a “conversation” with JK about the document (statutory declaration). He states, “go your hardest with that because it is not really worth the piece of paper its written on”.89 06/01/08 JK telephones police alleging her mobile phone is missing along with a letter addressed to DW (statement dated 9 January 2008).90 08/01/08 JK provides a statement to DW regarding text messages received by her from DA.91 09/01/08 JK provides a statement to DW regarding missing letter addressed to DW and her missing mobile phone.92 10/01/08 DA leaves a message on JK‟s answering machine at 8.39pm.93 25/01/08 DA sends text message to JK.94 83 Agreed Statement of Facts filed 5 October 2011. 84 Investigation report into the complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 409. 85 Agreed Statement of Facts filed 5 October 2011. 86 Statement of JK dated 8 January 2008, s 21 material, vol 1, p 168. 87 Transcript of Interview (Ms DN) tended and marked exhibit E „1‟ at the hearing on 8 December 2010. Also referred to in written submissions (disciplinary hearing) tended and marked exhibit E „1‟. 88 Section 21 material, vol 2, p 1081. 89 Section 21 material, vol 3, p 1079. 90 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 171. 91 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 167. 92 Statement of JK dated 7 November 2007, s 21 material, vol 1, p 171. 93 Statement of JK dated 31 January 2008, s 21 material, vol 1, p 179. 94 Statement of JK dated 31 January 2008, s 21 material, vol 1, p 179. -- 28 of 33 -- 29 30/01/08 DA telephones JK at her work.95 31/01/08 JK provides four statements to DW regarding:96 Telephone calls on 8 November 2007, 10 January 2008 and 30 January 2008; Text message on 25 January 2008. Before 15/02/08 SC HD witnesses a quantity of documents (between 10 and 20 pages) for DA for Family Law Court matters.97 After 15/02/08 WP tells SC HD that DW said “tell HD to be careful DA‟s forging his signature”.98 18/02/08 JK a makes complaint (to Sergeant DW) alleging DA accessed her hotmail account99. 06/03/08 JK has unauthorised withdrawals from her bank account.100 08/03/08 JK queries bank statements with her bank (unauthorised withdrawals).101 21/04/08 JK provides a statement to Sergeant DW in relation to alleged forgery of document (statutory declaration).102 24/04/08 JK provides a statement to DW alleging unauthorised access to her bank account (withdrawals) by DA.103 01/05/08 Complaint made by JK to Sergeant DW alleging DA used her bank card to make “unauthorised” purchases totalling $11,219.104 28/05/08 DA receives subscription emails from “3 mobile” addressed to “Loser” and “Madman”.105 05/06/08 JK provides a statement to Sergeant DW alleging unauthorised withdrawals from her bank account by DA. 95 Statement of JK dated 31 January 2008, s 21 material, vol 1, p 179. 96 Section 21 material, vol 1, p 179. 97 Section 21 material, vol 2, p 571. 98 Interview with SC HD, s 21 material, vol 2, p 627. 99 Investigation report into the complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 408. 100 Statement of JK dated 24 April 2008, s 21 material, vol 2, p 447. 101 Statement of JK dated 24 April 2008, s 21 material, vol 2, p 447. 102 Section 21 material, vol 2, p 567. 103 Section 21 material, vol 2, p 447. 104 Investigation report into the complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 407. 105 Attachment marked “ASD1” to written submissions (disciplinary hearing) tended and marked exhibit E „1‟ at hearing on 8 December 2010. -- 29 of 33 -- 30 10/06/08 DA pleads guilty (to breach of DVO) in the ... Magistrates Court.106 24/06/08 Complaint made by JK to Sergeant DW alleging DA had accessed an email account in the name of “a person with whom she had developed a relationship with over the internet” and that DA has sent “derogatory and harassing emails”.107 09/07/08 Department of Transport ... receives documents by post referring to misuse of a disabled parking sticker relating to KM (DA‟s Grandmother).108 11/07/08 Complaint made by RC (friend of JK) alleging she had received a threatening telephone call from “an unknown male person”.109 16/07/08 Complaint made by JK to Sergeant DW (by email) in relation to DA allegedly accessing the QPS computer system to obtain “her relatives personal details”.110 19/08/08 JK participates in an interview with Detective Senior Sergeant SS at ... – she believes DA has been accessing her family members‟ details on the QPS computer (date of birth relating to five family members).111 22/08/08 QPS consult with Senior Sergeant HH in relation to JK‟s complaint that DA has accessed QPS records relating to JK‟s relatives.112 22/08/08 Acting Detective Senior Sergeant DD is interviewed by QPS police in relation to the allegation of accessing data from QPS records (by DA).113 25/08/08 Senior Constable EE is interviewed by QPS in relation to accessing QPS records.114 106 Agreed Statement of Facts filed 5 October 2011. 107 Investigation report into the complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 1, p 408. 108 Attachment marked “ASD1” to written submissions (disciplinary hearing) tended and marked exhibit E „1‟ at hearing on 8 December 2010. 109 Investigation report into the complaint of misconduct (Senior Sergeant Campbell), s 21 material, vol 2, p 409. 110 Investigation report into the Complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 420. 111 Investigation report into the Complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 420. 112 Investigation report into the Complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 421. 113 Investigation report into the Complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 421. -- 30 of 33 -- 31 09/09/08 JK makes “separate complaints by email to the Minister of Police” and also to the “CMC”.115 10/09/08 QPS (Ethical Standards Command) investigators begin investigation of matters and Sergeant DW is appointed Liaison Officer “to deal with [JK]”.116 15/09/08 SC HD receives in the station mail a photocopy of a document (statutory declaration) with his forged signature. 15/09/08 Email sent by JK to Sergeant DW stating DA “had a sickie on Friday 12th September”.117 17/09/08 SC HD prepares a Complaint in relation to the document (statutory declaration). A statement is provided (later) on 2 February 2009. 21/10/08 SC HD participates in an interview with Detective Senior Sergeant Robert Campbell (Ethical Standards Command). 21/10/08 Letter sent to Elder Abuse Prevention Unit regarding KM (DA‟s Grandmother).118 17/11/08 DJB receives a threatening telephone call – she was told her “house would be blown to pieces with [her] in it”.119 18/11/08 DJB participates in an interview with Inspector HD and Senior Sergeant AA. DJB states that she received information from police that her elderly mother had written (typed) a letter to a Government Department “claiming that [she] had mistreated her” and DJB‟s mother “barely even signs her own bank withdrawals”.120 DJB states DA‟s son [JJ] had been living with her for three months and that documents had been accessed from her computer and “people” had been in her home. DJB also refers to incidents involving JK “pushing” 114 Investigation report into the Complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 421. 115 Investigation report into the Complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 409. 116 Investigation report into the Complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, p 410. 117 Attachment marked “ASD1” to Written submissions (disciplinary hearing) tended and marked exhibit E „1‟ at hearing on 8 December 2010. 118 Attachment marked “ASD1” to Written submissions (disciplinary hearing) tended and marked exhibit E „1‟ at hearing on 8 December 2010. 119 Section 21 material, vol 2, p 635. 120 Section 21 material, vol 2, p 632 -- 31 of 33 -- 32 her, “grabbing” CC (DA‟s son), “spitting” at her and “doing all sorts of things”.121 Ethical Standards Command (QPS) commence investigations and execute a search warrant (under the Police Powers and Responsibilities Act 1990) at DA‟s private residence and the premises of DJB (DA‟s mother).122 A number of documents relating to property and Family Law Court matters are seized.123 DA participates in a directed interview with Senior Sergeant Robert Campbell (Ethical Standards Command) and Inspector Geoffrey Sheldon in relation to the complaint made by JK and allegations relating to fraudulent use of credit card, threatening or harassing phone calls, misuse of a hotmail account, misuse of a livemail account, forgery of a statutory declaration and falsified letters to a solicitor.124 Inspector Sheldon confirms that “enquiries” to date reveal that DA‟s son (JJ) “had used passwords and accessed various things that don‟t belong to him including those that belong to his grandmother [DJB]”.125 02/02/09 SC HD prepares a statement in relation to the photocopy of the document (statutory declaration). 10/03/09 DM provides a statement to Senior Sergeant Edward Campbell in relation to the document (statutory declaration).126 SF participates in an interview with Sergeant Campbell and describes DA‟s workplace performance as “becoming cancerous” and that he has “become a very good liar”. SF refers to DA‟s concerns about JK accessing DA‟s roster and that details about DA‟s shift duties could not be disclosed to “any caller” by police.127 02/04/09 Plain clothes constable RB is interviewed at the Queensland Police Service Academy in relation to DA allegedly accessing 121 Transcript of Interview in relation to execution of search warrant, s 21 material, vol 3, pp 689 [960], 702 [1370], 724 [2040], 726 [2101] and pp 751, 760, 754 [2970], 294 (respectively). 122 Investigation report into the complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 1, p 410. 123 Section 21 material, vol 2, p 1030. See Transcript of Interview in relation to execution of search warrant (s 21 material, vol 3, p 677). 124 Section 21 material, vol 3, p 1025 at p 1029. 125 Section 21 material, vol 4, p 1118. 126 Section 21 material, vol 4, p 1166. 127 Section 21 material, vol 3, pp 816, 817. -- 32 of 33 -- 33 emails belonging to JK and accessing information from the QPS computer system.128 06/05/09 JK withdraws her complaints of fraud (unauthorised access to funds), computer hacking and harassment stating reason for not proceeding as “repercussions” from DA – “harassment”, “verbal abuse” and “physical abuse”.129 08/05/09 JK provides a statement to Senior Sergeant Robert Campbell regarding unauthorised transactions from 29 September 2007 to 6 March 2008 (including) totalling $11,263.70. 21/08/09 DJB receives a letter (poem) in the mail titled “to myself” and “from myself”.130 31/08/09 Letter sent to Child Support by JK regarding change of assessment relating to DA.131 128 Investigation report into the complaint of misconduct (Senior Sergeant Campbell) dated 9 June 2009, s 21 material, vol 2, pp 422, 423. 129 Section 21 material, vol 2, p 566. 130 Attachment marked “ASD1” to written submissions (disciplinary hearing) tended and marked exhibit E „1‟ at hearing on 8 December 2010. 131 Attachment marked “ASD1” to written submissions (disciplinary hearing) tended and marked exhibit E „1‟ at hearing on 8 December 2010. -- 33 of 33 --