Crime and Misconduct Commission v Bioletti [2006] QSC 10 [2006] 2 Qd R 229

1 SUPREME COURT OF QUEENSLAND CITATION: Crime and Misconduct Commission v Bioletti [2006] QSC 010 PARTIES: CRIME AND MISCONDUCT COMMISSION (applicant) v MARK WILLIAM BIOLETTI (respondent) FILE NO: BS6144/05 DIVISION: Trial Division PROCEEDING: Application COURT: Supreme Court DELIVERED EX TEMPORE ON: 30 January 2006 DELIVERED AT: Brisbane HEARING DATE: 30 January 2006 JUDGE: Fryberg J ORDER: 1. Appeal allowed 2. Decision of the Tribunal and the Tribunal’s costs orders are set aside 3. Matter to be remitted to the Tribunal to be reheard by a different member 4. Leave granted to the respondent to make written submissions re Appeal Costs Fund Act 1973 (Qld) CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – Misconduct Tribunal’s jurisdiction – where Tribunal dismissed charges on basis that it did not have jurisdiction – procedure for Crime and Misconduct Commission to bring charges – whether power for Commission to bring charges is unconditional or confined – whether strict compliance with legislative procedures is required – whether Commission complied with procedures – whether Member erred in finding the Tribunal did not have jurisdiction Crime and Misconduct Act 2001 (Qld) s 49, s 50, s 174 Misconduct Tribunals Act 1997 (Qld) s 17 -- 1 of 13 -- 2 De Lacey v Juunyjwarra People & Anor [2004] QCA 297, distinguished COUNSEL: AM Daubney SC for the applicant MJ Byrne QC for the respondent SOLICITORS: Crime and Misconduct Commission for the applicant Gilshenan & Luton for the respondent -- 2 of 13 -- 3 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION [2006] QSC 10 FRYBERG J No BS6144 of 2005 CRIME AND MISCONDUCT COMMISSION Informant/Appellant and MARK WILLIAM BIOLETTI Respondent BRISBANE ..DATE 30/01/2006 ORDER -- 3 of 13 -- 4 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal by the Crime and Misconduct Commission against the whole of an order of a Misconduct Tribunal made on the 1st of July 2005 whereby the Tribunal dismissed two disciplinary charges brought by the Commission against the present respondent. The Tribunal dismissed the charges because, although it found one of them proved, it held that it did not have jurisdiction to hear the proceedings. It so held because of a construction which it placed upon the relevant statutory provisions and upon the applicability of those provisions in the circumstances of the case. The appellant Commission is a body corporate continued in existence by s 220 of the Crime and Misconduct Act 2001 and previously known as the Criminal Justice Commission and the Queensland Crimes Commission. The merger of those two bodies was effected by that section. The Commission has a common seal and may sue and be sued in its corporate name. There does not appear to be a general conferral of powers upon the Commission beyond that set out in s 174 of that Act. Section 174 provides that, without limiting the Commission's specific powers, it has power to do all things necessary or convenient to be done for or in connection with or reasonably incidental to the performance of its functions. Its functions are set out in s 33 of the Act and they are to raise standards of integrity and conduct in units of public administration and to ensure a complaint about or information or matter involving -- 4 of 13 -- 5 ORDER 1 10 20 30 40 50 60 misconduct is dealt with in an appropriate way having regard to certain principles set out in s 34. Those powers are therefore of considerable generality. The particular provisions of the Act conferring powers on the Commission in relation to misconduct - and I interpolate that it has other powers dealing with other topics - are set out in Part 3. That part is divided into sections which reflect different types of procedure and different subject matters of complaint or of matter. Specific provision is made in relation to dealing with complaints by subdivision 3, although it must be said that that subdivision covers more than dealing with complaints. Section 45, the beginning of subdivision 3, provides that the Commission has the primary responsibility for dealing with complaints about or information or matter involving official misconduct. Section 46 provides that the Commission deals with such things by expeditiously assessing each complaint and taking action considered most appropriate in the circumstances having regard to the principles set out in s 34. The actions which may be taken under s 46 are set out in sub-s 46(2) and they include referring a complaint about official misconduct to, in effect, the Commissioner of Police and in a case to which s 49 applies, charging a person with official misconduct by way of a disciplinary charge under s 50. It is material to set out the whole of that section. -- 5 of 13 -- 6 ORDER 1 10 20 30 40 50 60 "Crime and Misconduct Act 2001 (Qld) 50 Commission may prosecute official misconduct (1) This section applies if the commission reports to the chief executive officer of a unit of public administration under section 49 11 that- (a) a complaint, matter or information involves, or may involve, official misconduct by a prescribed person in the unit; and (b) there is evidence supporting a charge of a disciplinary nature of official misconduct against the prescribed person. (2) The commission may charge the prescribed person with the relevant official misconduct by way of a disciplinary charge. (3) The charge may be dealt with only by a misconduct tribunal. (4) For the definition prescribed person, paragraph (b), a regulation may not declare a court or the police service to be a unit of public administration that is subject to the jurisdiction of a misconduct tribunal. (5) In this section- prescribed person means- (a) a member of the police service; or (b) a person (other than a judge or holder of judicial office or a member of the police service) who holds an appointment in a unit of public administration, which appointment or unit is declared by regulation to be subject to the jurisdiction of a misconduct tribunal. 11 Section 49 (Reports about complaints dealt with by the commission ) Section 51 provides that nothing in Part 3 limits the action which may lawfully be taken by the Commission or a unit of public administration to discipline or otherwise deal with a person for misconduct. In the present case, there is no doubt that the respondent was a police officer and that what he was charged with by the -- 6 of 13 -- 7 ORDER 1 10 20 30 40 50 60 Commission before the Tribunal amounted if proved to official misconduct. So much was common ground. The point taken both below and before me and upon which the Tribunal found in favour of the respondent was whether the opening words of s 50 were satisfied. It was submitted before me that the words, "under section 49" required strict adherence by the Commission to the detailed requirements of that section and that a failure by the Commission so to comply would mean that it was deprived of power under s 50(2) to bring the charges. It was conceded on behalf of the respondent that if that construction was not correct, the requirements of paragraphs (a) and (b) of s 50(1) were met. In my view, the reading which the Tribunal and the respondent attribute to s 50 is not correct as a matter of law. I do not think the words "under section 49" are apt to condition the power of the Commission conferred specifically by s 50(2) is limited by the need to adhere precisely in every detail to the requirements of s 49. In the present case, the Commission wrote a letter to the Commissioner of Police, who was the relevant Chief Executive Officer of the Police Force which was a unit of public administration and the letter as conceded by Mr Byrne QC on behalf of the respondent set out the matters referred to in s 50(1). -- 7 of 13 -- 8 ORDER 1 10 20 30 40 50 60 Section 49 makes provision by sub-s 2(f) for the Commission to report on an investigation to the Chief Executive Officer of the relevant unit, in the present case, the Commissioner of Police, for the purpose of taking disciplinary action. That is a discretionary matter. The primary responsibility, however, for dealing with matters involving official misconduct rests with the Commission - see s 45. In my judgment a report is required to the Chief Executive as a condition of bringing a charge under s 50, but I do not think that a non-compliance with the precise requirements of s 49(3) prevents the requirements of s 50(1) being complied with. In other words, some insufficiency under s 49(3) does not necessarily mean that the report cannot be one which answers the requirements of s 50. Mr Daubney SC for the Commission submitted that there was power to initiate disciplinary proceedings without resort to s 50. He submitted that s 49(2) is discretionary and that a report under para (f) of that subsection is for the purpose of taking disciplinary action. However, para (f) does not limit itself to disciplinary action by the Chief Executive Officer. I see no incongruity in holding that for the purposes of taking disciplinary action itself the Commission must report to the Chief Executive Officer save perhaps in the case where the Chief Executive Officer is the potential target of the disciplinary action. It was not argued before me that that no doubt unusual possibility informed the construction of the Act. -- 8 of 13 -- 9 ORDER 1 10 20 30 40 50 60 Mr Daubney based his submission on s 17 of the Misconduct Tribunals Act 1997. That section, he submitted, conferred adequate and specific power upon the Commission to commence proceedings for official misconduct. Section 50 was simply a particular example of that conferral of power. It seems to me, however, that that is not the function which s 17 performs. The Misconduct Tribunals Act essentially focuses on the Tribunal, not the Commission. Part 4, in which s 17 is the first section, deals with proceedings and division 1 with starting proceedings. Section 17 is concerned to describe the manner in which proceedings are to be commenced. It is true that it is implicit in the section that the Commission has power at least in some circumstances to commence proceedings for official misconduct, but I do not think the section should be construed as implying a general or unlimited power when the Crime and Misconduct Act has gone to some trouble to define specific powers of the Commission. The Member of the Tribunal approached the matter in a slightly different way. He held that s 17 was no more than a general jurisdictional provision of the sort dealt with in De Lacey v. Juunyjuwarra People. I would not be happy with the use of the word "jurisdictional" in this context. As I have said, it seems to me that s 17 is a procedural provision and that the specific power in s 50 is the source of the Commission's power to begin proceedings. Moreover it is inappropriate to -- 9 of 13 -- 10 ORDER 1 10 20 30 40 50 60 describe the existence or otherwise of a power in the Commission as affecting the jurisdiction of a Tribunal. I do not think that the general power conferred on the Commission by s 174 of the Crime and Misconduct Act, even when that section is read with s 33, has the capacity to impliedly give rise to an unconditional power to commence proceedings in the teeth of the specific provision set out in s 50. It follows in my judgment it is necessary for the appellant to bring itself within s 50 or fail. The Commission relied upon a letter dated 31st March 2004 from the Commission to the Assistant Commissioner of Police. The Assistant Commissioner in question was apparently in charge of the Ethical Standards Command. No issue was raised before me that this was not a sufficient compliance with the requirement to report to the Commissioner because the addressee of the letter was an inappropriate addressee. The Tribunal held that the letter was defective in that it failed to identify any particular complaint or information. The Tribunal held that the letter did not expressly: (a) identify any particular complaint matter or information, (b) state that any particular complaint matter or information involved or may involve official misconduct and, (c) state that there was evidence supporting a charge of a disciplinary nature of official misconduct against the prescribed person. -- 10 of 13 -- 11 ORDER 1 10 20 30 40 50 60 It is true that the letter in question does not do all of those things precisely and expressly. However whether it complies precisely with s 49 of the Crime and Misconduct Act is, for the reasons I have already discussed, beside the point, because precise compliance with that section, let alone precise express compliance, is unnecessary. There is, in my judgment a sufficient compliance to satisfy the terms of s 50(1) of the Crime and Misconduct Act. For that reason I think the Commission had power to begin the proceedings and the Tribunal ought to have dealt with them. The finding that the Tribunal lacked jurisdiction was wrong. The evidence before the Tribunal has not been placed before me. The Commission argued that I ought to proceed on the basis that the Tribunal made a finding adverse to the respondent on one charge and that consequently I ought to order that the respondent be dismissed. However, it seems to me that the question of what would be the proper course is one which ought to be decided in the Tribunal. That leaves the question of what I ought to do. I have some sympathy for the view that the findings of the Tribunal adverse to the respondent should stand, since any other course would require the complainant in those proceedings, if there was one (it has not been shown before me that there was a complaint), to give evidence (or again give evidence if she gave evidence before the Tribunal originally), on matters which no doubt are not pleasant. -- 11 of 13 -- 12 ORDER 1 10 20 30 40 50 60 However looking at the matter overall I think that the total picture will be lost if the matter is reheard only in relation to one of the two complaints. That is particularly so since in any event the Commission relies upon each of the complaints in support of the other. In other words, it argues that evidence of the commission of one of the disciplinary offences is admissible to prove the commission of the other. The proper test for the admissibility of similar fact evidence is always difficult and even if the test were not itself subject of some uncertainty, its application cannot be decided by me in these proceedings because the evidence has not been placed before me. Mr Daubney SC spent some time submitting that the Member of the Tribunal below applied a wrong test in determining whether or not the evidence could be used as similar fact evidence. In particular, he criticised the sentence in the reasons for judgment where the Member said, after his consideration of the relevant evidence and the similarities and differences within it: "In my opinion, the accounts given by [each complainant] are not accounts that are strikingly similar and I would not and I do not proceed on the basis that one is admissible in respect of the other." I accept that if the Tribunal meant that it was necessary for the prosecutor to demonstrate striking similarity between the two accounts in order that they be admissible, the one in respect of the other, that would, as the law is presently -- 12 of 13 -- 30012006 T22/JLP15 M/T 3/2006 (Fryberg J) 13 ORDER 1 10 20 30 40 50 60 understood, constitute a mis-statement of the appropriate test. I am, however, far from persuaded that that was what the Member of the Tribunal had in mind. It is unnecessary for me to say any more about that point as I have no assurance that whatever evidence was before the Tribunal will be the same next time around. It is a matter for whoever constitutes the Tribunal next time to examine the evidence before the Tribunal and to reach a conclusion on the reciprocal applicability of the evidence having regard to the authorities including Pfennig, BAR and Purnell. In my view, the appeal should be allowed. The decision and orders of the Tribunal should be set aside and the matter remitted to the Tribunal to be re-heard by a different Member. ... HIS HONOUR: The respondent is ordered to pay the costs of the appeal to be assessed. ... HIS HONOUR: Leave to the respondent to make written submissions re Appeal Costs Fund Act within 48 hours. ----- -- 13 of 13 --