BJB v Acting Deputy Commissioner Wright & CCC

Case [2021] QCAT 448

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448

PARTIES:

BJB

(applicant)

v

ACTING DEPUTY COMMISSIONER DA WRIGHT

CRIME AND CORRUPTION COMMISSION

(respondents)

APPLICATION NO:

OCR281-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 June 2021

HEARING DATE:

24 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

1.       The decision of Acting Deputy Commissioner Wright made on 10 July 2019 that the allegations of misconduct concerning Matters One, Two and Three are substantiated is set aside and substituted with a decision that Matters One, Two and Three are not substantiated.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCPLINE AND DISMISSAL FOR MISCONDUCT QUEENSLAND – general administrative review – where officer alleged to have exposed himself in the workplace in the context of banter about penis length – where alleged to have lied about the incident in subsequent interviews – where matters found to be substantiated in police disciplinary proceedings - where officer applied to review the findings of substantiation – whether the allegations of misconduct are proven to the requisite standard 

Crime and Corruption Act 2001 (Qld), s 219BA, s 219G, s 219H

Police Service Administration Act 1990 (Qld), s 1.4
Police Service (Discipline) Regulations 1990 (Qld), s 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21

Acting Senior Constable Wallis v Acting Deputy Commissioner Wright (No 2) [2020] QCAT 426

Aldrich v Ross [2001] 2 Qd R 235
Briginshaw v Briginshaw (1938) 60 CLR 336
Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564
Francis v Crime and Corruption Commission [2015] QCA 218
Murray v Deputy Commissioner Stewart [2011] QCAT 583
O’Keeffe v Rynders, Deputy Commissioner [2011] QCAT 119
R v Filippa [2008] QSC 39

Shields v Commissioner of Police [2008] VSC 2

APPEARANCES & REPRESENTATION:

Applicant:

T.E Schmidt instructed by Gilshenan & Luton

First Respondent:

S.A McLeod QC instructed by Queensland Police Service Legal Unit

Second Respondent:

DJ Coghlan instructed by the Crime and Corruption Commission

REASONS FOR DECISION

  1. On 10 July 2019 Acting Deputy Commissioner Wright (the respondent) made a decision that four matters, the subject of misconduct proceedings, had been substantiated.

  2. On 7 August 2019 BJB applied for review of the decision to substantiate the matters (OCR281-19) and contended that the respondent:

    a)Failed to take into account relevant evidence;

    b)Placed undue weight on certain evidence; and

    c)Made findings based on insufficient evidence.[1]

    [1]Application for Review filed on 7 August 2019, at 4.

  3. On 13 August 2019 the respondent delivered his decision regarding sanction. On 23 August 2019 the Crime and Corruption Commission (the CCC) filed an application to review the decision as to sanction (OCR288-19) on the grounds the sanction was inadequate; did not reflect the seriousness of BJB’s conduct and did not adequately meet the purpose of disciplinary proceedings. The CCC sought that BJB be dismissed from the police service. On 9 September 2019 BJB also applied to review the sanctions imposed…

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Details
AGLC
BJB v Acting Deputy Commissioner Wright & CCC [2021] QCAT 448
Case
[2021] QCAT 448
Decision Date

CaseChat Overview and Summary

In BJB v Acting Deputy Commissioner Wright & CCC, the dispute involves allegations of inappropriate conduct against BJB, a police officer, and the subsequent disciplinary proceedings. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the decision to dismiss BJB from the police service. The key legal issues the court had to address were the sufficiency of the evidence presented by the respondent to substantiate the allegations and whether the standard of proof was met. The court had to consider the credibility and reliability of the witnesses, the consistency of their statements, and the procedural fairness in the disciplinary process.

The court found that the evidence provided by the respondent's witnesses was problematic due to significant inconsistencies and the absence of cross-examination opportunities for BJB. The credibility of the witnesses was further undermined by indications of potential bias and motivation for retaliation. The court noted that while there were more witnesses on the respondent's side, the quality and reliability of the evidence did not meet the required standard of proof. The court held that the respondent had not discharged the onus of proof on the balance of probabilities. Consequently, the court concluded that the allegations were not substantiated, and the dismissal decision was set aside.

The court's reasoning was grounded in the need for high probity and reliability in evidence, especially given the severity of the sanction. The lack of opportunity for cross-examination and the conflicting accounts presented by the witnesses led the court to doubt the accuracy and reliability of the evidence. The court emphasised the importance of observing witnesses and allowing for the testing of their accounts through cross-examination.

The final orders of the court were that the decision to dismiss BJB made on 10 July 2019 was set aside, and a new decision was substituted, stating that matters one, two, and three were not substantiated. This ruling highlights the critical importance of procedural fairness and the quality of evidence in disciplinary proceedings within the police service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I note, despite repeated requests by BJB’s barrister to the Acting Deputy Commissioner,[22] no cross examination of any of the witnesses in the initial disciplinary hearing was permitted. Further, there was no application at the hearing to call or cross-examine witnesses.[23] Accordingly, although this is a matter in which the credit and reliability of certain key witnesses is crucial,[24] I am limited to relying on written statements and the transcripts of interviews conducted by internal investigators of those witnesses. The evidence and observations about the evidence [22]Letter from Mr T Schmidt to A/Deputy Commissioner of 31 July 2018 and 26 November 2018.[23]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 95 (‘QCAT Act’).[24]Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 at [16]-[19]; O’Keeffe v Rynders, Deputy Commissioner [2011] QCAT 119 at [11]-[12].S S is the reporting officer and initial preliminary investigator. He was the officer with whom B first raised the issue, some four months after it allegedly occurred. S made detailed handwritten notes of their conversation immediately after the disclosure and further notes over the course of the next three days after speaking separately to Sergeant F and Senior Sergeant A.[25] [25]Transcript of Interview of Sgt S of 14 October 2018 at 18: SOR 366. The handwritten notes are at SOR at 388 – 389. B first mentioned the incident to S in the course of a ‘rant’ about BJB, having heard that BJB had reported him in relation to an ‘evade/pursuit matter’.[26] The disclosure occurred during a Friday night shift on 18 August 2017. S said that he had walked into the office when B was half-way through ‘a vent’ with other officers present about BJB. S described B as being very annoyed, walking around the office ‘with the shits’.[27] [26]Transcript of Interview of Sgt S of 14 October 2018 at 8: SOR 356.[27]Ibid at 7: SOR 355. S said that B had said openly in front of the other officers present, namely, C, D and G, that he was upset BJB had done a ‘465’ in relation to an evade/pursuit matter but that he was more upset at BJB’s double standards. In particular, B said that he was upset with the way BJB drove a car, rode his police bike and conducted himself.[28] When pressed by S, B added that it wasn’t just that, that there was: a whole bunch of other things. Um he gets his cock out at work... the other week I was sitting at my desk and he’s come over and stood over me and got his dick out.[29] (emphasis added)[28]Ibid at 8: SOR at 356.[29]Ibid at 17: SOR at 365. S said that he asked him to stop at that point and to explain what he meant. S describes what B said to him about the alleged incident in the following terms:He goes, well he gets his cock out at work. He goes, the other week I was sitting at my desk and he’s come over and stood over me and got his dick out. And I said hang on a minute. I said, this makes no sense. What do you mean he got his dick out? And he said the four of them were sitting there. He was at his desk. They were giving each other banter about their cock size and for some reason [BJB] decided to get up, walk across from his desk and stand over [B] and get his dick out. I said, what’d you do? And he says, I fucking turned away immediately and yeah, told him put your fucking dick away. And he goes that’s caused [C] and [D] to have a look, turn around and see.

Decision

Reasons for decision

There is evidence of a motive for the conduct of the respondent’s key witnesses, that is, that their conduct was motivated by retaliation for complaints made against each of them by BJB and as a culmination of feelings of resentment they have towards BJB and his management style in general. There is also significant professional jealousy by B towards BJB, who feels aggrieved at not having had the same career path as BJB.Conclusion For all the reasons above, I do not consider the respondent has discharged its onus of proof. I cannot be satisfied, on the available evidence and to the requisite standard that matter one as particularised occurred. It follows that matters two and three are not substantiated. The correct and preferable decision is that the decision of the respondent made on 10 July 2019 is set aside and substituted with a decision that matters one, two and three are not substantiated. I order accordingly.

Ratio Decidendi

Legal Principle Established

On a date in December 2017 E said she had a conversation with Senior Sergeant A, one of the officers investigating the incident and who ultimately wrote the final report, who said it had been brought to his attention that the incident occurred on a shift when she had been working. E said that she told Senior Sergeant A that she did not have any recollection of any incident.[44][44]Statement of D 1: SOR 165.Consideration The respondent bears the onus of proving on the balance of probabilities that the matters occurred. Due to the severity of the potential sanction, being dismissal from the police service, the probity and reliability of the evidence required to meet that standard is high. The accounts of BJB on the one hand, and B and C on the other, are diametrically opposed. Notwithstanding the requests made by BJB’s legal representative that the respondent make its witnesses available for cross-examination at the police disciplinary hearing, the respondent declined. No witnesses for the respondent or BJB were called to give evidence at the Tribunal hearing. This makes assessment of the respective accounts of what occurred on that day very difficult. I have not had the opportunity to observe the witnesses nor to have the competing accounts put to them. There are, of course, more witnesses who have given accounts of what occurred that day on the respondent’s case than there are on BJB’s but that is not sufficient alone, in my view, to discharge the relevant onus in the particular circumstances of this case. There are a number of matters which cause me concern about the evidence given by the respondent’s witnesses. I deal with those matters below. For the reasons which follow, I am not satisfied to the requisite Briginshaw standard that the case for the respondent has been made out.Conflicting accounts given by B There are fundamental inconsistencies in the versions of the alleged incident given by B. In saying that, I am conscious that my impression of B’s evidence is different to that of Senior Sergeant A, who concluded that he was ‘swayed by the consistency and veracity of [B’s] claim’.[45] [45]Internal Investigation Group Investigation Report by S/Sgt A at 3: SOR 145. B describes the event very differently when he first discloses it to S in the course of a rant about BJB and his supposed double-standards. In short, B says that he was seated at the time, that BJB came up to his desk, stood over him, and that when B looked up, ‘there it was’. There is no mention of a preceding conversation, joke or banter between B and BJB about penis size. I note also that the details are drawn out of B by a persistent S at the time and that B is very reluctant for the matter to go any further. By the time of the interview B describes a situation involving all three of them, namely, himself, BJB and C which began with them all having a joke about penis size. B says that they were standing in a triangle formation and that he, B, was standing up facing BJB, a few metres from him. Rather than being at his desk, becoming aware of something, looking up and seeing an exposed penis, B later describes watching the incident unfold in the course of a joke about penis size, and in that context, watches BJB to see what he is doing, not believing that he will actually undo his fly and expose himself. Consistently with that version, in his statement of 25 August 2017, B says they were all standing and that he looked down to see BJB’s exposed penis.