Chapman v Assistant Commissioner Wilson and Anor

[2011] QCAT 529

CITATION: Chapman v Assistant Commissioner Wilson and Anor [2011] QCAT 529

PARTIES:	Stephen Wayne Chapman (Applicant)
v
Assistant Commissioner Paul Wilson Crime and Misconduct Commission (Respondents)

APPLICATION NUMBER:   OCR029-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: 5 September 2011

HEARD AT: Brisbane

DECISION OF: Hon James Thomas AM QC, Presiding Member
Richard Oliver, Senior Member.

DELIVERED ON: 20 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

[1]     The first respondent’s determination that matter one (untruthfulness) was substantiated against the applicant Stephen Wayne Chapman, and that it amounted to misconduct, is set aside;

[2]     It is determined that matter one is not substantiated;

[3]     The fine of $200 on matter one is set aside;

[4]     The first respondent’s determination that matter two (improper conduct in failing to comply with QPS policy regarding pursuits) was substantiated against the applicant Stephen Wayne Chapman, and that it amounted to misconduct, is confirmed.

CATCHWORDS: 

Police Discipline – distinction between “pursuit” and “urgent driving” discussed – admissibility of evidence in coronial inquiry where applicant claimed privilege considered – review of the respondents findings that the applicant was untruthful – meaning of “untruthfulness” in the context of formal interviews – where failure to disclose mobile phone calls in a formal interview – where failure to volunteer information about mobile phone calls must be considered in the context of the questioning in the interview and the circumstances generally – where no motive for untruthfulness established

Coroners Act 2003, ss 39(3), 51(2)

CMC v Barnett & Eaton [2011] QCAT 161

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Stephen Wayne Chapman represented by Mr P Smith of counsel instructed by Queensland Police Union of Employees

RESPONDENT:

Assistant Commissioner Paul Wilson represented by Mr S McLeod of counsel instructed by Ms Heffner, the Police Service Solicitor

Crime and Misconduct Commission represented by Mr T D Gardiner of counsel instructed by Ms Wood

REASONS FOR DECISION

Proceedings

1. This review is one of five that have been brought challenging findings by Assistant Commissioner Wilson in disciplinary proceedings against four police officers arising out of an incident in 2006.

1. On 16 June 2006, in the course of a police pursuit in the Gold Coast area, a motorcyclist died and his pillion passenger was seriously injured.  Disciplinary proceedings were commenced against the four policemen who were involved in the incident.  They were discontinued while a coronial inquiry was conducted.

1. Disciplinary proceedings were then recommenced, and on 2 February 2011 Deputy Commissioner Wilson delivered his findings in respect of the conduct of all four policemen.

1. The present applicant, Senior Constable Chapman, was found guilty of two charges of misconduct and fined $200 on each. 

2. The charges against the other three police officers, Senior Constable Buckley, Constable Webley and Sergeant McLoughlin were all found to be unsubstantiated.

1. In this proceeding in QCAT, Chapman seeks review of the finding that the first charge against him (untruthfulness) was substantiated.  Obviously no review is sought of the second charge to which he pleaded guilty.

1. The Crime and Misconduct Commission, in its watchdog role, has also brought proceedings in QCAT, seeking review of the acquittals of Buckley, Webley and McLoughlin.  It also seeks the imposition of sanctions against them, and an increase in the sanctions imposed on Chapman.

1. The current proceedings in QCAT are best summarised in the following table.

Number	Name	Charges	Findings	Appeal against
OCR025-11	CMC v Buckley & Wilson	Untruthful	Matter unsubstantiated	Finding of “not substantiated”
OCR029-11	Chapman v Wilson & CMC	(1)    Untruthful (2)   Wrongful pursuit	Fined $200 on each	Finding of “substantiated” on charge 2
OCR030-11	CMC v Chapman & Wilson	(1)    Untruthful (2)    Wrongful pursuit	Fined $200 on each	Inadequate sanctions
OCR032-11	CMC v Webley & Wilson	Untruthful	Unsubstantiated	Finding of “not substantiated”
OCR033-11	CMC v McLoughlin & Wilson	(1)    Failing to report Chapman (2)    Untruthful	Unsubstantiated	Findings of “not substantiated”

1. The two charges against Senior Constable Chapman are:

1. Between 16 June 2006 and 23 January 2010, your conduct was improper in that you were untruthful during a disciplinary interview.  (The main untruthfulness charge was based on his statement that he did not use his phone during the course of the chase.  A further particular alleged inconsistent statements about his attempts to call the police communications centre).

1. On 16 June 2006 at Nerang, your conduct was improper in that you failed to comply with QPS policy regarding pursuits.

[10]  Chapman admitted his breach of pursuit policy, but contested the untruthfulness charge.

[11]  In the result he was fined $200 on each matter.  The adequacy of these sanctions is challenged by the CMC in proceeding OCR030-11.

[12]  Thus the only matter in contest in this particular application is whether the untruthfulness charge should have been found to have been substantiated.

Main Facts

[13]  The record upon which Assistant Commissioner Wilson based his decisions is contained in four volumes comprising 1,622 pages.  The collation of this information has been a complex and difficult task.  Doing the best we can, the following is a precis of the main events.

[14]  On the night of 16 June 2006, Chapman and Buckley were on patrol duty in car 972 (driven by Buckley) and McLoughlin and Webley were on patrol duty in car 973 (driven by McLoughlin).  Chapman was the senior officer in car 972 and McLoughlin the senior officer in car 973.

[15]  Towards 11:30pm a group of Odin’s Warriors motorcyclists were driving north near Tugun.  A police motorcyclist, Sergeant Newman, tried to intercept them, but two of the motorcyclists sped off, including one ridden by Craig Shepherd with pillion passenger Ms Delaney.

[16]  Sergeant Newman made a radio transmission including “bikies .. trying to do a runner”.  This would have been able to have been heard by police operatives throughout the district.

[17]  Car 972, which was on patrol in the area, then entered the northbound lanes of the Pacific Highway from the Robina Parkway at Mudgeeraba.  Chapman and Buckley noticed a motorcycle in the distance ahead, travelling at high speed.  They gave chase in an attempt to obtain the bike’s registration number.  Buckley activated the flashing lights but did not activate the police siren.  At one point he reached a speed of up to 160km per hour.

[18]  While this was happening, Constable Molloy (at 11:35pm) was driving the regional booze bus south along the Pacific motorway towards Mudgeeraba.  He saw the motorcycle that Shepherd was riding with a pillion passenger, and noticed a police vehicle about 800 metres behind, then in the vicinity of the Mudgeeraba police station.  He made a police radio call to the effect “993 to the police unit north bound at Mudgeeraba, that motorcycle is still in front of you heading northbound.”

[19]  Chapman replied on his car radio “Yeah thanks mate.  It’s Chappie and Hilly”.  It is probable that the police communication centre would have heard this communication.

[20]  While car 972 was still on the Motorway in the Robina area, car 973 (Webley and McLoughlin) was some distance to the north, on Brisbane Road somewhere between Helensvale and Harbour Town.  Their first indication of the relevant pursuit was a phone call from Constable Molloy who phoned McLoughlin to advise him of the motorcycle sighting further south, possibly because he was aware of McLoughlin’s special interest in outlaw motor cycle gangs.

[21]  McLoughlin was driving, and Webley in due course took over McLoughlin's mobile phone.

[22]  At this point Webley phoned Chapman querying the location and description of the motorcycle, no doubt to facilitate the possibility of their providing assistance in an intercept. 

[23]  This was the first of the two mobile phone calls which are said to have been covered up by the police officers concerned.

[24]  McLoughlin then drove his car (973) towards the action.  He moved from Brisbane Road on to the motorway and started to move south.  Car 972 was at that stage still on the motorway moving north.

[25]  A little later, Chapman and Buckley saw the motorcycle turn off the highway at Nerang (at Evers Street), move onto the Nerang Connection Road (at about 22.38pm) and, some distance further on, turn right into Price Street against a red light.

[26]  The second mobile phone call, a few minutes after the first, was made by Webley to Chapman, presumably to find out the location of the motorbike and of car 972.  Chapman advised him that car 972 was “heading towards the back… to Nerang”.

[27]  Although in ordinary language car 972 had been in pursuit of the motorcycle since its sighting at Robina, the term "pursuit" has a special meaning in police operations, as will be later explained.  One of the prescribed duties of a police officer when a pursuit is commenced is to give immediate notice of it to the local police communications centre ("Comms").

[28]  In our view formal pursuit of the motorcycle did not commence until car 972 was near a Mobil service station in Nerang, not far from a red light which the motorcyclist had ignored.  Car 972 slowed at the red light and immediately commenced full pursuit with flashing lights and police siren.

[29]  Price Street eventually becomes the Beaudesert-Nerang Road.  That road then becomes the Nerang-Murwillumbah Road.  Several kilometres further on there is a turn off to the right on to Beechmont Road. 

[30]  The speeds during the pursuit in the built up area were estimated at around 140-160kmh.

[31]  Chapman also claims that around the time of turning into Beechmont Road he decided to call off the pursuit, but curiously he did not actually do so.  The car continued to be driven at high speed with lights on high beam and with flashing lights still activated.  They were in direct view of the cycle when they saw sparks and a flash of lights as the motorcycle collided with a rocky cliff face as it failed to make a sharp left hand turn.  Chapman was close enough to be able to see the headlight of the bike twirl around as it hit the rock wall (Record 1146).  At that time they were probably a similar distance behind the cycle as that when they turned into Beechmont Road.

[32]  Despite Chapman’s stated intention to call off the pursuit, it only ended when the motorcycle crashed.

[33]  The distance from the attempted interception of the three motorcyclists at Tugun and the crash site was 40km.  However this is irrelevant so far as the participation of car 972 is concerned.  It became involved from the Robina parkway.  The distance from that point to the Evers Street Nerang turn off has been the subject of different estimates, but seems to be in the vicinity of 13km; there is further 1.62km to Price Street; and a further 7.66km from Price Street to the crash site.  The distance travelled by the vehicles along Beechmont Road before the crash was in the vicinity of 660 to 700 metres.  Overall, then, car 972 was involved in chase or pursuit for slightly more than 22km.

[34]  As earlier indicated the full pursuit commenced near the Mobil service station in Nerang.  However it was not until some time later, probably several kilometres further on, that any radio call from Chapman was heard by anyone in relation to notification of a pursuit.  This was a radio transmission by Chapman which could be construed as an attempt to notify Comms of the pursuit.  Chapman was unsure of the place where he called pursuit, but stated that it was on the Nerang-Murwillumbah Road some distance before the Beechmont Road turnoff.  In order to make that communication by police radio it was necessary to “cut in over” unit 280 which was at that time using radio transmission.

[35]  When first interviewed Chapman said that he had made attempts to radio Comms to advise them of the pursuit shortly after they exited the Pacific Motorway.  He also said that further attempts were made on the outskirts of Nerang, and again after they left Nerang in the vicinity of the Beaudesert turnoff.  In his second interview he clearly admitted that no serious attempt to call Comms had been made before the Beaudesert turnoff.  With assistance from his solicitor, when the difference between the two versions was identified, he said that his recollection of the first interview would be preferable.  However the later version (near the Beaudesert turnoff) was the one which he most firmly recollected, and we think that his clearest statements are admissions that this was his first serious attempt at notification. (Record 1218-1223, 1226-1227, 1236, 1242, 1243, 1275, 1277, 1279).

[36]  Immediately after Chapman and Buckley found the motorcycle and bodies at the rock face they tried to call Comms on their police radio.

[37]  Chapman had considerable difficulty in making contact.  Comms were apparently busy talking to other callers, and others were cutting over the top of him.  He was however heard on his fourth attempt, recorded at 23:43, “Ah 972 urgent .. just started chasing .. motorcycle.. and they have come off… request an ambulance”. (Record 1219-1221).

[38]  When Comms sought details of the nature of the incident, Chapman asked them to call him on his phone, as he did not want to mention the details over the radio.  No one rang back.  He used his mobile phone to call Comms on three occasions, but on each occasion the phone answered and immediately hung up.  Chapman then used his radio again stating that he wanted to speak to Comms and to “tell him to answer his phone”.

[39]  Eventually contact was made and assistance was dispatched.

[40]  The evidence includes a tape of radio communications made during the night in question.  This is the basis of the details in the following paragraph.  However it hardly needs to be said that it does not contain details of any attempted communications that may have failed, and it cannot effectively record multiple communications at the same time.

[41]  The relevant radio transmissions were –

23:28  Sergeant Newman “bikies .. trying to do a runner”
23:35 Constable Molloy “motorcycle still continuing north”
23:35 (per Chapman) “yeah thanks mate it’s Chappy and Hilly”
23:38 “972 to 973” (Chapman calling McLoughlin) probably made as        car 972 was leaving Nerang

23:39 “973 to 972” (McLoughlin calling Chapman) – 1 minute 20 seconds after preceding call

23:43 Unit 972 cuts in over unit 280.  (This appears to be the first attempt to call pursuit, probably on the Nerang-Murwillumbah Road approaching the Beechmont Road turnoff).

23:43 “972 urgent .. ambulance ..”

[42]  As indicated above, there were two mobile phone calls between cars 972 and 973.  Mobile telephone communication between traffic branch police was common and routine.  It would seem that mobile telephone communications by police to and from Comms was not uncommon either.

[43]  The motorcyclist was obviously desperate to avoid interception by police.  He had an unenviable traffic record and was unlicensed and disqualified from holding a driver’s licence.  He was riding a 2300 cc Triumph Rocket III motorcycle which he had recently purchased.

The Interviews and Investigations

[44]  Chapman and Buckley remained at the scene until the early hours of the morning.  Some hours later, at 6:10am, Chapman was interviewed at the Nerang police station by Inspector Elloy.  The interview proceeded until just before midday.  A second “resumed” interview proceeded about three months later on 13 September 2006.

[45]  Matters moved slowly, but eventually the disciplinary authorities decided to charge Chapman with a breach of pursuit policy in that he failed to advise Comms of the pursuit.  A disciplinary hearing was started on 3 October 2007, but before any findings were made the authorities decided to discontinue the hearing in order to allow the State Coroner to examine the matter at an inquest.

[46]  The inquest did not make findings on the matter until 12 December 2008.  In the course of the inquest Chapman and the other officers were called to give evidence and were again interrogated at some length.

[47]  In his findings the Coroner was critical in some respects of the conduct of the police officers concerned and he referred “the conduct of the four officers to the QPS for the consideration of the taking of disciplinary action”.  That almost inevitably led to the consideration of fresh disciplinary proceedings.

[48]  Chapman was then further interviewed about the matter by Inspector Sheldon.

[49]  Eventually on 5 January 2011 Chapman was directed to attend a disciplinary hearing before Assistant Commissioner Wilson with respect to the current two charges and on 2 February 2011 both were found to be substantiated.

[50]  It is desirable to deal at this stage with some legal issues which were raised by the parties.

“Untruthful”

[51]  Counsel for the police officers referred to Blanchard v Deputy Commissioner Conder (TA 5 of 2005, 10 September 2006, a decision of the former Misconduct Tribunal).  At paragraph 69 of that case the view was expressed that it must be shown “that the person has deliberately lied in the sense that they knew the truth and consciously and knowingly gave a false or incorrect statement that was contrary to the truth”.

[52]  With respect, while that may often be so, as a general statement it is too narrow.  Just as there may be misrepresentation by silence, deliberate omissions which lead to the presentation of an untrue picture could found a charge of “untruthfulness” in the context of a police disciplinary matter.

[53]  It is worth noting that if questioning is not specific enough, many interpretations may be possible on the part of an interviewee, and if asked to give a version of an event, it may be reasonable to simply provide the main points.  To leave out a minor detail is not necessarily untruthful.  Forgetfulness may reflect poorly on a police officer, but it is not untruthfulness.

[54]  A person will not be guilty of untruthfulness through mere inaccuracy or honest mistake.  If a person believes a statement is correct at the time the person makes it, the person is not being untruthful.  In the context of police interviews we consider that an officer is “untruthful” if he or she knowingly misleads the interviewer (by act or omission) or knowingly makes a false statement.  

Use of Coroner’s findings

[55]  In the course of a detailed review of the incident the Coroner expressed some favourable findings concerning the conduct of the police, along with some critical findings and a recommendation for consideration of disciplinary action against all four police officers.

[56]  Counsel for the police officers sought to rely upon the favourable findings but objected to the unfavourable ones.

[57] The matter of reception of a coroner's comments is covered by section 51(2) of the Coroners Act 2003.  It states:

The record of the Coroners findings and comments is not evidence in any court or Tribunal of any fact asserted in the record.

[58]  Of course evidence received from the Coroner could be (and was in this case) tendered to the Tribunal.  But the Coroner’s findings and comments are not receivable evidence whether favourable or unfavourable.  This point was considered in CMC v Barnett and Eaton [2011] QCAT 161 where a similar conclusion was reached.

[59] There is however a detail which needs to be borne in mind. Two of the police officers, Chapman and Buckley, took objection to giving evidence at the inquest on the ground that the evidence might tend to incriminate them. They were then required by the Coroner to give evidence and did so. The consequence of this, under section 39(3) of the Coroners Act 2003 is that the evidence is not admissible against them in any other proceeding, other than a proceeding for perjury.  The disciplinary process was a “proceeding”, as is the present review in QCAT.  They are proceedings for “untruthfulness”, but they are not proceedings “for perjury” which is a specific offence known to the criminal law.

[60]  It follows that any evidence given by Chapman or Buckley to the coronial inquiry is not admissible against themselves in the present proceedings.  The evidence of each is however admissible against the other.

The term “pursuit” in police policy

[61]  “Pursuit” bears a special meaning in the present context.  Following a series of deaths in the course of police pursuits the Commissioner of Police, from around 2003, instituted a pursuit policy binding on all members of the force.  The policy has been developed to a considerable degree since 2006.  At the time of the present pursuit there was in force a series of directions in HRMM 14.23.5 and the relevant requirements are contained in circular number 17/2005, exhibit 3 in these proceedings.  They make a distinction between “urgent duty driving” and “pursuit driving.  The following are the definitions:

Pursuit means an attempt by an officer driving a police vehicle to intercept another vehicle where that officer believes on reasonable grounds that the other driver is avoiding interception.  An intercept is when an officer is endeavouring to stop another vehicle – a pursuit begins when the officer believes on reasonable grounds that the driver of the other vehicle is intentionally avoiding being intercepted.

Urgent duty driving means driving to perform a duty which justifies prompt action and may include driving a service vehicle in a manner that if not justified would ordinarily constitute an offence.

[62]  The policy requires officers undertaking a pursuit to apply a set of risk assessment criteria to determine whether it should be commenced.  The passenger in the pursuit car is required to contact the local radio communications room and describe the circumstances so that the pursuit can be overviewed by another officer who is kept informed of developments.  That officer has authority to direct the pursuers to terminate the pursuit.

[63]  The policy also deals with abandonment, requiring it to be abandoned immediately “if it creates an unacceptable risk to the safety of any person”.  There are then provisions concerning its abandonment.  These include the turning off of flashing lights and sirens, pulling the police vehicle over at the first available safe position, and advising the pursuit controller that the pursuit has been abandoned.

[64]  It is a complex policy, designed to reduce unacceptable risks to the public.  It is fair to say however that in the urgency and stress of a pursuit a police officer may have some very fine judgments to make in borderline situations, including the moments of commencement and termination of pursuit.

[65]  For reasons that are more fully stated in the other case involving Chapman (OCR030-11), we have concluded that no formal pursuit was undertaken by the occupants of the car 972 along the Pacific Motorway.  We think that that section of their journey should be characterised as urgent duty driving.

[66]  The formal pursuit should be regarded as having commenced at the Mobil service station in Nerang.

[67]  This view is supported by the fact that at no stage while it travelled along the Pacific Motorway did car 972 activate its siren.  In a full pursuit along that motorway even late at night one would expect maximum warning to be given to any traffic on the motorway of the emergency situation.  Furthermore, car 972 would not seem to have been driven at anything like its maximum speed. 

[68]  We have also concluded that the formal pursuit commenced near the Mobil service station in Nerang, and that no serious attempt was made by Chapman to call pursuit until several kilometres further along the Nerang-Murwillumbah Road.

Main Allegation of Untruthfulness (the first particular)

[69]  During their first interviews, none of the four police officers mentioned anything about the two mobile phone calls that were made during the operation. 

[70]  The main issue in all of these cases is whether that omission was deliberately deceptive.  The main basis of the first particular is Chapman’s statement during his first interview that he had not used his phone during the course of the chase.

[71]  During the first interview Inspector Elloy asked a series of questions concerning Chapman’s ringing Comco on his mobile phone after the chase.  Chapman’s denial of using his mobile phone arose in the following context.

ELLOY:         So you’ve called Comms, Broadbeach Comms?

CHAPMAN:   Yep

ELLOY:         On no less than three occasions after the incident?

CHAPMAN:   I’m pretty sure it was three.

ELLOY:         Okay.

CHAPMAN:   Because I was getting pretty frustrated-

ELLOY:         Alright

CHAPMAN:   - at that stage.

ELLOY:         What about during the course of the, of the chase?

CHAPMAN:No I didn’t use my phone during the course of the chase, no.

[72]  Counsel for the decision-maker correctly points out that answer was unqualified.  However its context is in a conversation concerning calls on his mobile phone to Comco.  That was the context, not only in the quoted passage, but in the two pages preceding it, which are summarised in the following paragraph. 

[73]  Having been asked what happened when he reached the scene, he mentioned attempts “to call comms” on the police radio, and finding other transmissions cutting over the top and that this was a poor radio communication area.  “I .. again called comms and asked them to .. ring me and no one rang.. I called them again .. we need an ambulance .. there’s been .. an incident .. then they started calling some other units and they said we’re going to get further details from you and due to the .. nature of the incident I didn’t want to explain to them over the radio what had been occurring.. I asked them to ring me.. No one rang me so I rang the comco on not less than three occasions.  The phone answered and then hung up again so I’ve got on the radio again and said I want to speak to the comco and tell him to answer his phone because-..”  The interviewer then interrupted him to obtain his mobile phone number and then proceeded to the original passage quoted above commencing “so you’ve called comms, Broadbeach comms?”

[74]  The submission for Chapman is that the entire context was concerning the use of his mobile phone to ring Comms during and after the chase.  We agree.  This explanation and his answer can not reasonably be excluded.  It may be further noted that immediately following that answer he was asked about the use of the radio during the chase, and once again Chapman speaks about his attempts to make radio contact with Comms during the chase. 

[75]  This interpretation of the conversation is strengthened by the fact that no satisfactory motive for telling such a lie has been suggested by counsel for the decision-maker.  It is also noteworthy that very early during the second interview Chapman voluntarily disclosed the mobile telephone contact that was made between cars 972 and 973 during the chase.  We do not think that this disclosure is any way weakened by the fact that after this disclosure Chapman asked the interviewer whether he was in possession of his mobile telephone records.

[76]  We do not consider that the evidence justifies an adverse finding against Chapman on the first particular.

The second particular

[77]  The second particular is that during the interviews Chapman “gave a variety of versions as to (his) contact, or attempts to contact, the police communications centre that were contradictory”.

[78]  Some degree of vacillation on Chapman’s part can be seen on this issue in the course of the three lengthy interviews to which he was subjected over a period of three and a half years.

[79]  During the first interview he said that he only “tried to get on to comms .. when we first started to try and catch the bike”.  He mentioned a radio conversation with another vehicle while he was on the motorway that informed him that the motorcycle was still proceeding north.  He stated that when they got into “Nerang proper” he attempted to try to talk on the radio “but it was just busy”.  He then stated that the first time he attempted to contact the regional communications centre was on the outskirts of Nerang, about the time he activated the siren.

[80]  During his second interview Chapman confirmed that he did not “call the pursuit” until a point after the Beaudesert turn off.  That is consistent with his having failed to make contact when he earlier attempted to do so in Nerang.  His actual call of the pursuit was described as “cutting over” the top of another caller, number 280.  Later in that interview he observed that in relation to radio communications his memory would have been better during the first interview than now.

[81]  Significantly, during his second interview, Chapman admitted “the traffic branch generally stick together through the night.  If I needed VKR’s assistance well I’d call him straight away”.  This of course shows a clear misunderstanding of QPS pursuit policy.  Notification of VKR is mandatory at the very outset of a pursuit, to provide necessary supervision, not something to be called in aide if the police officer believes he needs them.  Chapman further admitted that in hindsight that he probably should have called VKR earlier in the pursuit.

[82]  Some time after the second interview the coronial inquiry was conducted, and evidence was produced showing that the radio equipment on car 972 at the relevant time was defective.

[83]  During the third interview (on 22 January 2010), when accused of failing to contact the communications centre, he stated “I did make attempts to contact comms .. I don’t know how long that was .. attempts were made but .. on a few occasions I’ve cut over people.”  He said that he had made a number of attempts to contact communications but “it did not happen because of people talking over one another”.  This and other passages (record pages 1310-1311) were relied on by the decision-maker as showing a change of ground on Chapman’s part, but a perusal of those passages makes it quite clear that he was only referring to “the actual pursuit itself” which relates to a time after they had left the motorway.  He also referred to the lack of serviceability of the radio (page 1311) but that is hardly surprising considering the extra information that was by then available on this point.

[84]  It is true that many parts of these interviews are confused and vague, and that his recollections have varied.  That may make him an unsatisfactory informant but it does not necessarily prove untruthfulness.  The circumstances include the stress of the incident and its aftermath.  Furthermore the poor condition of the radio transmission equipment is consistent with there having been periods of failure, along with intermittent occasions when communications were successful, making it difficult to remember such events in sequence.

[85]  The inconsistency in responses by Chapman on this subject may well have been the product of uncertainty and confusion rather than of intention to deceive.  We do not think that deliberate untruthfulness has been established to the required standard.

[86]  We do not consider that the second particular of charge number one has been made out.

Summary of principal findings

[87]  The driving of car 972 along the motorway was not a formal pursuit, and may be characterised as urgent duty driving.

[88]  Formal pursuit commenced near the Mobil service station in Nerang.

[89]  Chapman’s first serious attempt to notify Comms of the pursuit occurred several kilometres after it had commenced.

[90]  Although Chapman claims to have decided to call off the pursuit when the police car entered Beechmont Road, the pursuit actually continued until the accident occurred.

[91]  The details of Chapman’s breach of pursuit policy are addressed in the reasons in OCR030-11 published today, and it is unnecessary to repeat them here.

[92]  We are not satisfied to the required standard that Senior Constable Chapman was untruthful when he denied mobile telephone contact during the chase.  In its context it was a denial of telephone contact with the communications centre.

[93]  We are not satisfied that the versions given by Chapman as to his contact or attempts to contact the police communications centre were untruthful.  They were confused and inconsistent, but they do not suggest any dishonest purpose or intention to mislead.

Conclusion

1. The respondent’s findings of misconduct on matter one (“untruthfulness”) should be set aside.

1. It is determined that matter one is not substantiated.

1. The respondent’s determination of matter two, (improper conduct in failing to comply with QPS policy regarding pursuits) is confirmed.