Crime and Misconduct Commission v Deputy Commissioner Stewart and Anor (No 2) [2012] QCAT 382

CITATION: Crime and Misconduct Commission v Deputy Commissioner Stewart and Anor (No 2) [2012] QCAT 382 PARTIES: Crime and Misconduct Commission v Deputy Commissioner Ian Stewart Paul Dalton APPLICATION NUMBER: OCR201-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 18 June 2012 HEARD AT: Brisbane DECISION OF: Hon James Thomas, AM QC, Member Ms M Howard, Member DELIVERED ON: 30 July 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Deputy Commissioner Ian Stewart of 22 August 2011 that particulars four and five of the charge of negligent operational management were not substantiated is confirmed; 2. The sanction imposed by Deputy Commissioner Ian Stewart, on 22 August 2011, with respect to particulars one, two and three of the said charge, namely that the second respondent Paul Dalton's paypoint level be reduced from Sergeant paypoint 5 to Sergeant paypoint 1 for a period of 12 months, with accompanying directions, is confirmed. CATCHWORDS: Police discipline – use of prisoner as informant and in covert operation – no statutory authorisation sought – whether a "controlled operation” under Police Powers and Responsibilities Act 2000 – level of sanction – observations on role of decision-maker in reviews brought by CMC APPEARANCES and REPRESENTATION (if any): -- 1 of 12 -- 2 APPLICANT: Crime and Misconduct Commission represented by Mr T D Gardner (counsel) RESPONDENT: Deputy Commissioner, Queensland Police Service (QPS), Regional Operations represented by Ms C Heffner Mr Paul Dalton represented by Mr S Zillman SC REASONS FOR DECISION [1] The parties will be referred to respectively as the CMC, the decision-maker and Sergeant Dalton. [2] The CMC seeks a review of two determinations of the decision-maker – a) The decision-maker‟s finding that the charges relating to particulars 4 and 5 were not substantiated; and b) The sanction imposed by the decision-maker on the substantiated charges. [3] Our jurisdiction arises under sections 219BA(1), 219G and 219H of the Crime and Misconduct Act 2001, and sections 17-24 of the Queensland Civil and Administrative Act 2009. It is our duty to make up our own minds and conduct a fresh hearing on the merits consistently with the principles stated in Aldrich v Ross [2001] 2 Qd R 235. Background [4] The proceedings arise out of activity in which Sergeant Dalton, then a detective-sergeant in Rockhampton, engaged in 2004. His activity involved the use of a notorious criminal, Henderson, as a police informant, and Henderson‟s extraction from prison from time to time with a view to his use in a covert police operation. His superior officers were aware of Sergeant Dalton‟s activity and raised no objection. However Sergeant Dalton failed to comply with numerous procedural requirements laid down in relation to the conduct of such activities. [5] In 2008 Sergeant Dalton was charged with misconduct. Proceedings were adjourned pending resolution of criminal charges which had been brought against him. In late 2010 the criminal proceedings were terminated by the entry of a nolle prosequi in the District Court, and Sergeant Dalton returned to active duty. [6] The disciplinary hearing resumed in March 2011. [7] There was a single charge of misconduct, namely negligent operational management of the police informant Henderson, expressed as follows: “Between the 6th day of November 2003 and the 16th day of October 2004 at Rockhampton, or elsewhere, your conduct was improper in that you were … negligent in the operational management of the informant Lee Owen Henderson.” -- 2 of 12 -- 3 [8] Five separate particulars of the misconduct were specified which may be summarised as follows: 1. Failure to comply with Queensland Police Service policy and procedures concerning informant management, including failures to register Henderson as an informant, failure to record details and failure to provide case officer control forms. 2. Breach of Corrective Services conditions of approval concerning the release of Henderson. 3. Breach of operational procedures (no entries made in custody/search index). 4. On 28 July 2004, failure to obtain approval for a controlled operation involving use of Henderson. 5. On 28 July 2004, utilising an informant as a covert operative in a controlled operation without approval. [9] On 22 August 2011 the decision-maker found particulars 1, 2 and 3 to be substantiated, and that particulars 4 and 5 were not substantiated. [10] The sanction imposed with respect to matters 1, 2 and 3 was that Mr Dalton‟s paypoint level be reduced from Sergeant paypoint level 5 to Sergeant paypoint level 1 for a period of 12 months. [11] The CMC contends that the appropriate sanction in this case is dismissal from the Police Service. A Procedural Observation [12] The submissions of the legal officer for the first respondent (Deputy Commissioner Stewart) did not enter upon the merits of the decision, and were essentially limited to submissions on the nature of the process, consistently with the observations made by member Thomas in Crime and Misconduct Commission v Assistant Commissioner Ross Barnett1 and the application of the Hardiman principle.2 The observations in Barnett about the role of the decision-maker in assisting the Tribunal in cases of this kind were provisional and it was indicated that further consideration might be warranted in due course after legal argument. [13] It is possible that the observations in Barnett are being interpreted too restrictively concerning the role of the decision-maker in these matters. The main purposes of the Hardiman principle would seem to be the avoidance of unnecessary duplication when there is already a contradictor, and avoidance of the spectacle of a decision-maker (in that case, a quasi- judicial officer) becoming a protagonist in his or her own cause. However in some merits review jurisdictions it has been held that the presence of a 1 [2010] QCAT 690 paras 9-11. 2 R v Australian Broadcasting Tribunal ex p Hardiman (1980) 144 CLR 13. -- 3 of 12 -- 4 contradictor does not preclude the decision-maker from playing an active role, or diminish the appropriateness of its doing so.3 [14] In proceedings of the present kind the role of the CMC is nearly always adverse to that of the decision-maker, on the basis that the decision-maker has failed to find a charge established or has failed to impose a severe enough penalty. The contradictor is the police officer whom the CMC perceives to have not been dealt with severely enough. It is true that the police officer (unless he or she brings their own appeal to be dealt with even more lightly) will seek to uphold the original decision. But the police officer‟s interests and perspectives certainly do not coincide with those of the decision-maker or the Commissioner of Police. [15] It is therefore important that decision-makers, who are bound by s 21 of the QCAT Act to use their best endeavours to help the Tribunal to perform its review, should engage in the proceeding in any respect in which the submissions on behalf of the other parties may be perceived as not adequately covering the perspective of the decision-maker and of the Queensland Police Service on whose behalf they perform their role. [16] We appreciate that there may be a fine line between the provision of further assistance and unnecessary duplication of the contradictor‟s submissions, and that the decision-maker‟s legal advisors may sometimes find it difficult to decide how far to go. However the purpose of these comments is to encourage decision-makers, through their legal advisors, to open the door a little further towards the provision of assistance to the Tribunal in these matters. The Main Issue [17] The main issue in particulars 4 and 5 is whether an investigation in which Sergeant Dalton proposed that Henderson would be used to obtain information had reached the stage of being a “controlled operation” under the Police Powers and Responsibilities Act 2000. If it was, Sergeant Dalton should have observed strict procedural requirements. It is common ground that he did not take those steps. His answer to the charges in particulars 4 and 5 is that he was at the relevant time using Henderson with a view to gathering intelligence, rather than as part of a controlled operation. As later discussion (paras [20] to [28]) will indicate, evidence gathering seems to be a necessary objective of a controlled operation. Another common feature is that the covert operative may be required to engage in what would be unlawful activity unless part of a controlled operation for which the proper approvals had been sought and obtained. In short, the defence is that a “controlled operation” was not conducted on 28 July 2004; Henderson‟s removal was to gather information or intelligence, and there was no intention that Henderson act illegally or become an accessory; and there was no requirement at that stage to seek authority for a controlled operation. Main facts 3 Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008)19 VR 422 (a decision of the full court of the Victorian Court of Appeal). -- 4 of 12 -- 5 [18] At material times in 2004 Henderson, a notorious criminal in prison for murder, was a registered police informant, and Sergeant Dalton acted as his handler or manager. In particular on 28 July 2004 he arranged for Henderson‟s release from prison and his attendance at the Villa Mar Colina Motel at Yeppoon so that Henderson could have face to face contact with target persons suspected of being involved in the importation of a large quantity of cannabis from Papua New Guinea. [19] The meeting took place on that date. It is common ground that Henderson took a dominant role in the conversations that occurred at the meeting and that in the course of those conversations he actually attempted to procure the commission of the offence of importation and/or supply of dangerous drugs. But there is no direct evidence that Sergeant Dalton knew Henderson would do so. An issue arises as to whether it should be inferred that he must have known that Henderson would act as he did. Issues also arise as to whether it should be inferred that the operation had reached the evidence-gathering stage. Need for authorisation of “controlled operations” [20] Particulars 4 and 5 are in the following terms: 4. Without approval pursuant to chapter 5 of the Police Powers and Responsibilities Act 2000 [Dalton] conducted an unauthorised controlled operation of the 28th day of July 2004. It is further alleged that Dalton: a) Did not obtain legislative approval for the controlled operation utilising the informant Lee Owen Henderson acting as a civilian participant and the suspect at the Villa Mar Colina Motel at Yeppoon on the 28th day of July 2004. 5. Utilised informant Lee Owen Henderson as a covert operative on the 28th day of July 2004 without approval pursuant to chapter 5 of the Police Powers and Responsibilities Act 2000. It is further alleged that Dalton: b) Did not obtain legislative approval to use Lee Owen Henderson as a covert operative in relation to the suspect at the Villa Mar Colina Motel at Yeppoon on the 28th day of July 2004. [21] The relevant legislation is the Police Powers and Responsibilities Act 2000 (“the PPR Act”) as it was in force on 5 July 2004. Substantial amendments have been made since then. The relevant Act for present purposes is found in reprint 3N. [22] The definition of “controlled operation” (in schedule 4) simply states, “see section 173”. [23] Relevantly section 173(1) provides that a Police Officer may apply for approval to conduct a controlled operation. The term was not otherwise explicitly defined, but its meaning is to some extent further indicated by section 172(2) which provides that that statutory committee appointed to approve such operations may only do so if satisfied: -- 5 of 12 -- 6 “Having regard to the nature and seriousness of the offence being or to be investigated, it is appropriate for persons to engage in otherwise unlawful activities for the purposes of gathering evidence that may lead to the conviction of a person for the offence.” (Our emphasis and underlining). [24] This aspect is further mentioned in section 177(3) which states that the approving officer must not approve the application unless satisfied that the purpose of the proposed controlled operation is to gather evidence of chapter 5 criminal activity. [25] It is not necessary to set out further details of the statutory scheme which is contained in chapter 5 of the PPR Act (ie sections 163 to 197). It is sufficient to note that there are stringent procedural requirements laid down for any police officer who elects to seek to gather evidence by the use of covert operatives in a fashion which may involve the operative or the police officer in illegal activity. Such activities run the risk of the covert agent being seen as aiding and abetting or otherwise becoming a party to the commission of a criminal offence. Substantial details are needed to be disclosed so that they may be reviewed both by senior police officers and by a special statutory committee which may authorise the conduct of such operations. [26] Section 173(5) of the Act requires many details to be stated in order for approval to be obtained, including a description of the criminal activity in relation to which it is proposed to conduct the operation, and a description of each otherwise unlawful activity a covert operative who is not a police officer or a CMC officer may be required to engage in as part of the operation. [27] The object of the legislation is stated in section 163 as “to ensure the effective investigation” of specified offences and organised crime. It contemplates that particular officers will approve the conduct of controlled operations that may involve particular police officers and others engaging in activities that may be unlawful as part of the investigation of specified offences; it aims to ensure that approval or authorisation is only given “in appropriate circumstances”; it aims to ensure, as far as practicable, that only appropriately trained persons act as covert operatives; it also aims to provide "appropriate protection from civil and criminal liability for persons acting in accordance with the legislation” and “to clarify the status of evidence obtained by persons who engage in controlled operations or controlled activities under this chapter”. [28] Under the legislation then in force, it seems to us that a controlled operation should be regarded as a police procedure which would attempt to gather evidence in circumstances where police or their operative might become involved in illegality. The main purpose of the legislation appears to have been (and still is) to insulate the police from criminal liability when they gather evidence in operations that might suggest complicity or involvement on their part in illegality, and to remove the taint of illegality from such evidence as is gathered if and when a court might be called upon to determine whether such evidence should be received. Submissions -- 6 of 12 -- 7 [29] The CMC submits that the decision-maker erred in failing to be satisfied to the required standard that Henderson was used as a covert operative, that the meeting of 20 July 2004 was a controlled operation, and that Sergeant Dalton must have known this. [30] The main source of evidence indicating the nature of the planned operation consists of two documents prepared by Sergeant Dalton, firstly his written report to his officer in charge dated 19 June 2004, and secondly, an “operational order” dated 18 July 2004. Each of these indicates the information that Sergeant Dalton had gathered to that stage and the manner in which he was proposing to use Henderson. [31] Sergeant Dalton openly shared his information with his superiors, discussed it with them, reported progress and sought the assistance of other arms of the QPS to facilitate and protect the proposed operation. There was nothing underhand about his activity so far as the relevant police work was concerned. None of his superiors suggested that the stage had been reached where special authorisation would be required for a controlled operation. That of course does not excuse Sergeant Dalton from personal responsibility if in fact it had reached that stage, because he was the active agent guiding the operation. [32] Counsel for the CMC, Mr Gardiner, submitted that it must be inferred that Sergeant Dalton believed that Henderson would involve himself in the proposed importation. Dalton‟s report of 19 June 2004 mentions that there had already been a meeting between Henderson and the three targets at the Keppel Bay Sailing Club, Yeppoon, on 27 May 2004, which had been monitored by police, and during which one of the targets had stated that he was in the process of importing 20 tonnes of cannabis from Papua New Guinea, and that the operation was being organised and financed by a named person in Victoria. In that report Dalton recommended that approval be given for a further meeting between Henderson and two of the informants “as a means to gather intelligence in relation to the alleged drug importation”4. His report ended with the following statement – “These recommendations are only general in nature. More detailed recommendations can be given once the proposed meeting between the informant (P) and (J) has taken place and the exact nature of the alleged offence is known.” [33] In the CMC‟s submission the following circumstances were listed as clear indicators that applications should have been made for the undertaking of a controlled operation. a) Sergeant Dalton had asked for the exercise to be given “operation status”, and it was given the codename Charlie Zita. b) He already had substantial information which is contained in the operational order he prepared on 18 July 2004 in preparation for the meeting. 4 See record part B page 139. -- 7 of 12 -- 8 c) At the meeting Henderson was the dominant participant and actively sought to advance or procure the offence of importation and or supply of dangerous drugs. d) Alcohol was purchased for and consumed by Henderson at the meeting. e) Henderson paid the targets‟ airfare to Yeppoon for the meeting, Sergeant Dalton having requisitioned money on 27 July 2004. f) Sergeant Dalton had secured assistance from the special emergency response team (SERT) for the meeting. g) He also requested and secured tactical assistance for listening and recording devices. h) The Australian Federal Police had by this time deregistered Henderson as an informant. [34] It was submitted for the CMC that Henderson would not have been able to gather either information or evidence without assuming some role in advancing the illegal enterprise, and that Sergeant Dalton must have known this. [35] Counsel for Sergeant Dalton, Mr Zillman, however submitted that there were many ways in which Henderson might behave or might be expected to behave short of becoming a party to the enterprise. It is true that in order to obtain any intelligence from the suspects he would need to earn their trust and in some way ingratiate himself with them, and that during the earlier meeting of 27 May 2004, one of the targets had informed Henderson that he was seeking his assistance “in relation to the security of this operation and the eventual collection and transportation of the cannabis once it arrives in Queensland.”5 There is however no evidence that at the time when Sergeant Dalton made arrangements for the further meeting that Henderson had agreed to do so. [36] Henderson (under a different name) already had a reputation as a useful person in the underworld, and had originally been sought out by one of the targets. It is conceivable that he would be seen as offering or providing “security” to the operation, which, as Mr Zillman submitted, can mean many things. He could for example offer advice on avoiding detection, or direct targets to other corrupt persons who might be able to assist. In short it would be quite possible for Henderson to help to elicit useful information from the targets without becoming a party to the enterprise. [37] In our view the operational order prepared by Sergeant Dalton is consistent with the defence he offered to the charges number 4 and 5. During the earlier meeting of 27 May 2004, it had been proposed that Henderson would assist with the transportation of the cannabis once it arrived in Queensland. It had therefore reached the status of a proposal. Perhaps it was foreseeable that Henderson would go further if a further meeting was arranged, or tell lies about the provision of assistance that he would never be able to give. But this is quite speculative, and there is no evidence that 5 Part B page 1376. -- 8 of 12 -- 9 Sergeant Dalton knew or suspected that Henderson would become as proactive as he did when the meeting actually took place. Indeed, the investigation produced very little evidence of relevant dealings between Sergeant Dalton and Henderson. [38] The “operational order” contains Sergeant Dalton's proposal for the meeting of 28 July 2004. It is a contemporaneous document, and there is no reason to suspect that he was at that stage dissembling or misstating his plans and objectives. [39] In its explanatory section, under the heading “Situation" he stated that "a meeting has been arranged on 28/7/04 at the Villa Mar Colina Units, Adelaide Street Yeppoon between the informant, [P], [S] and [J] where the informant will be provided with further information in relation to this offence. This meeting will be monitored by investigating officers with the assistance of TSU (Technical Support Unit).”6 [40] The “Mission” of the exercise was said to be “to provide an appropriate police response to ensure the safety and security of the informant and to obtain intelligence as to the commission of any criminal offences.”7 [41] Under the heading “Assumptions” it was stated: “It can be assumed that the targets will attend to this meeting and provide information as to a drug importation from PNG to Queensland.” [42] In short, information gathering was proposed as the purpose of the meeting, and there is insufficient evidence to justify a contrary inference. The factors relied on by counsel for the CMC (listed in para [28]) above do not in our view lead to any contrary conclusion. [43] The decision-maker correctly observed that, “there is a fine line between the actions performed by the informant and police officers on this date and the legislative requirements to obtain authorisation to legitimise such actions.”8 It seems clear however that the information which had been gathered up to that time about the proposed importation was very general, and lacking in detail concerning actual participants, arrivals and other factual data. The slow but steadily increasing information gathered by Sergeant Dalton can be seen from the preliminary information in his letter of 19 June 2004, and the extent to which it was repeated and enlarged in the operational order prepared for the purposes of obtaining necessary police support in the further meeting that was arranged for 28 July 2004 at Yeppoon. The investigation was obviously still in a preliminary stage. [44] The distinction between gathering intelligence and gathering evidence is not specifically referred to in the legislation governing controlled operations. It is however a recognised distinction in police work as recognised by Deputy Commissioner Ian Stewart in his reasons for decision. To some extent it reflects the distinction between questions which are directly relevant to an issue and questions which may lead to a line of enquiry on a relevant issue, 6 See record part B page 1407. 7 Record part B page 1410. 8 Record part A page 205. -- 9 of 12 -- 10 which formerly dominated the law concerning interrogatories and discovery. The extent to which this distinction is currently recognised within the police force would be better known to a specialist tribunal such as the decision- maker than it is to us. However we accept that there is such a distinction, and counsel did not suggest otherwise. [45] This distinction was consistently made by Sergeant Dalton during his interviews in the belated disciplinary investigation. For example during his interview of 10 December 2007, when asked what was intended to take place during the meeting he responded, “just to corroborate and gather some intelligence, basically to ascertain what Henderson was telling us was correct.” [46] The same distinction was made by Inspector Weightman (Sergeant Dalton‟s superior officer) when he was interviewed. He described relevant parts of the operation that he knew Sergeant Dalton to be conducting as “intelligence gathering purposes” and “gathering information.” [47] We do not suggest that the choice of Henderson as an informant/information-gatherer was anything other than outrageous, but that is not the basis of the charge. The question is, “Given that Henderson was being used to gather information, had the stage been reached where authorisation of a „controlled operation‟ was required under the Police Powers and Responsibilities Act?” [48] In our view the decision maker was correct in declining to find particulars 4 and 5 substantiated to the prescribed standard. We have independently come to the same conclusion upon this review. Sanction [49] Sergeant Dalton was found guilty of negligent operational management of an informant in 3 separate particulars. These reveal a widespread failure to observe procedural requirements in a range of operational procedures including informant management and removal of prisoners from custody. [50] As earlier indicated, the following order was made: “I order that your current level of salary being Sergeant paypoint level 5 be reduced to that of Sergeant paypoint level 1 for a period of 12 months from today’s date. At the end of this 12 month period, you are entitled to progress to the next pay level in compliance with relevant human resource management policy. I further order that if you were to obtain an advanced position on merit, this sanction will not act as an automatic bar to any such promotion or transfer.” [51] The primary submission of the CMC is that the appropriate sanction is dismissal, or at the very least that there should have been a demotion. [52] The conduct in question involved the following: a) Non-compliance with Commissioner‟s directions concerning dealing with informants and removing and handling a person in custody. -- 10 of 12 -- 11 b) As a result, Henderson, a dangerous person, was at no time evaluated as required by the policy with a view to managing his use. c) Failure to comply with SIMS policy resulting in no risk management of Henderson. d) Failing to submit contact reports recording conversations and client intelligence reports. e) Non-compliance with the conditions of the removal orders concerning Henderson. f) Failing to make entries in the custody/search index on at least 6 occasions. g) Persistence in breaches of such requirements over an extended period, principally May to July 2004, but also including November 2003 to October 2004 in some respects. [53] It is noted that the charges are based upon negligent operational management. [54] The present order provides for a very substantial financial detriment, namely a reduction in gross pay of approximately $250 per fortnight during the stated 12 month period. Thereafter, Sergeant Dalton has continued and will continue to experience an ongoing (albeit reducing) loss of pay until August 2015, which is the time when he would finally return to pay level 3.5. The quantification of this loss was once again the subject of contention between counsel. However, on any view, the net loss suffered through imposition of the present penalty, including some loss of superannuation and other benefits, is at least $21,000; and net benefits that were lost from the impact of the investigation period are of the order of at least a further $5,000. [55] There are a number of mitigating factors including: a) There is no evidence of or suggestion of any personal gain for Sergeant Dalton from the actions with which he was charged. Indeed they were the actions of a police officer actively engaged in the detection of serious criminal offences. b) It may be inferred that he was operating without adequate supervision and that at least in some respects his activities with Henderson were known by superior offices and condoned. However, as the proactive officer in the operation, he had a duty to obey fundamental requirements. c) Although we think the active use of Henderson in the given circumstances was outrageous, and clearly Sergeant Dalton's actions carried a potential for public harm and outrage, there was no actual harm to any member of the public. In short, the potential for harm was not in fact realized. However, the operations of the kind in which he was involved did eventually cause public concern, and a consequential CMC Inquiry produced a report aptly titled "Dangerous Liaisons." This exposed the dangerous practices that had developed. In this respect it is true that Sergeant Dalton's actions -- 11 of 12 -- 12 contributed to an adverse image of the police force in the eyes of the public, which is a relevant matter. We do not however think it is an overwhelming factor in the present case. d) A very long delay occurred before Sergeant Dalton was dealt with on the present matters. e) His service record is exemplary and now spans 22 years. There are no substantiated complaints of any sort against him prior to the present matters. References provided at the disciplinary hearing, and to us, are extremely good. Also to his credit is the fact that despite the cloud cast by the present matters and a long delay in resolution of his status, he has continued to serve effectively. [56] In the above circumstances we think that the sanction which was imposed by the decision maker was correct and it should be confirmed. -- 12 of 12 --