Crime and Corruption Commission v Assistant Commissioner Brian Codd
[2017] QCAT 402
•21 November 2017
CITATION: | Crime and Corruption Commission v Assistant Commissioner Brian Codd and Anor [2017] QCAT 402 |
PARTIES: | Crime and Corruption Commission |
| v | |
| Assistant Commissioner Brian Codd Dean James Godfrey | |
APPLICATION NUMBER: | OCR101-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers decision |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
DELIVERED ON: | 21 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave is granted to adduce the new evidence detailed in the Application for miscellaneous matters received in the Tribunal on 11 September 2017. 2. The application to review the decision of Assistant Commissioner Brian Codd is to be listed for a directions hearing at a date to be advised. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether leave should be granted to adduce new evidence in review of police disciplinary decision – where police officer released photograph of defendant accused of stealing a motorcycle to complainant – where new evidence is a previous affidavit of officer regarding allegations that complainant was a member of another criminal motorcycle gang and that defendant’s family were in fear of retribution – whether evidence relevant to charges as particularised Crime and Corruption Act 2001 (Qld), s 219H |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REPRESENTATIVES: | |
APPLICANT: | represented by David Caughlin of the Crime and Corruption Commission |
FIRST RESPONDENT: | No submissions were made by the First Respondent |
SECOND RESPONDENT: | represented by Catherine Hartigan instructed by Gilshenan & Luton |
REASONS FOR DECISION
The Crime and Corruption Commission (the Commission) has applied for review of a decision by Assistant Commissioner Brian Codd (the Assistant Commissioner) that a charge of misconduct against Detective Sergeant Dean Godfrey of the Queensland Police Service was not substantiated.
The Commission seeks leave to adduce evidence that was not before the Assistant Commissioner. Detective Sergeant Godfrey opposes leave being granted. The Assistant Commissioner elected to make no submissions regarding the matter.
For the reasons that follow, I have decided to grant leave to adduce the new evidence.
Nature of review
Pursuant to s 219H(1) of the Crime and Corruption Act 2001 (Qld), the Tribunal’s review of the Assistant Commissioner’s decision that the charge was not substantiated “is by way of rehearing on the evidence (original evidence)” in the disciplinary proceeding before the Assistant Commissioner.
However, under s 219H(2), the Tribunal may “give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied:
(a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or
(b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.”
The charge
The charge against Detective Sergeant Godfrey was:
Matter 1
That on the 19th day of May 2014 at Beenleigh your conduct was improper in that you:
(a) Utilised [the QPS facility] QPrime to print a copy of a watchhouse photograph of [TF]; and
(b) Provided a copy of this photograph to [BG].
(Sections 1.4 and 10.1 of the Police Service Administration Act 1990; s 9(1)(f) of the Police Service (Discipline) Regulations 1990; s 16 (Improper Use of QPS Information) Standard of Practice Professional Conduct; s 4.13.5 (User responsibilities) Information Management Manual)
Further and better particularsInvestigations have identified that:
In relation to matter (a)
i. On 13 May 2014 BG reported his Harley Davidson motor cycle stolen from . . .
ii. The motor cycle was located, on 16 May 2014, in the possession of TF who was charged in relation to his possession of the vehicle.
iii. You were the corroborating officer in relation to the investigation and arrest of TF.iv. You spoke with BG at Beenleigh Police Station on 19 May 2014; and
v. You downloaded from QPrime and printed a copy of the watchhouse photograph of TF, while interacting with BG.In relation to matter 1(b)
i. You discussed with BG his concerns about TF or others returning to . . . to again steal the motorcycle or other property;
ii. BG asked you for a copy of the photograph of TF; and
iii. You provided BG with a copy of the watchhouse photograph of TF with a view to BG providing same to security personnel working at . . .
The new evidence
The new evidence the Commission seeks leave to adduce is an “Objection to Bail affidavit” sworn by Detective Sergeant Godfrey on 28 May 2014.
In the affidavit, Detective Sergeant Godfrey deposes that:
a)the motorcycle was “stolen from an alleged member of a [named criminal motorcycle gang]”; and
b)the defendant’s relatives, with whom he lived were “aware the motorcycle was stolen from the [criminal motorcycle gang] member and are in further fear of retribution as a result of the defendant’s offending”.
There is some potential inconsistency or at lack of completeness in the statements by Detective Sergeant Godfrey in a disciplinary interview on 27 July 2016 and his subsequent written submissions, and these statements in the 2014 affidavit. In the disciplinary documents, Detective Sergeant Godfrey stated that he was aware of a suggestion of BG being connected with another criminal motorcycle gang and gave his reasons for dismissing the suggestion, without mentioning the matters in the affidavit. However, the Commission does not contend that this is reflective of dishonesty and does not seek to adduce the evidence for that purpose.
Consideration
The Commission was not a party to the disciplinary proceeding before the Assistant Commissioner. Hence, the Commission says, and Detective Sergeant Godfrey does not seem to contest, that s 219H(2)(a) applies, in that the Commission “did not know, or could not reasonably be expected to have known, of its existence at the original proceeding”.[1]
[1]The Commission also submits that it would be unfair to not allow the evidence:It also seems to be agreed that it remains a matter of discretion whether leave should be granted to adduce the evidence. Further, that whether the evidence may be relevant to Detective Sergeant Godfrey’s conduct in releasing the photograph was for an official or improper purpose is central to the exercise of the discretion. It does not follow that all new evidence should attract a favourable exercise of the discretion provided it would be relevant evidence; all relevant circumstances must be taken into account including considerations of fairness or unfair prejudice to either party.
The Commission says that the evidence is relevant because it is evidence of Detective Sergeant Godfrey’s “state of knowledge” about a relevant matter.
Detective Sergeant Godfrey says that the evidence is irrelevant because knowledge of an allegation that BG was a member of a criminal motorcycle gang does not form part of the charges or the supporting particulars. Further, Detective Sergeant Godfrey submits that the evidence would not relevantly demonstrate his state of knowledge because the evidence relates to a mere allegation of BG’s membership of a criminal motorcycle gang and to the defendant’s family’s (not Detective Sergeant Godfrey’s) awareness.
The evidence would not support a finding that Detective Sergeant Godfrey knew that BG was a member of the named criminal motorcycle gang. However, findings that he was aware of allegations to that effect and of members of the defendant’s family being aware of the allegations and in fear of retribution would be findings as to Detective Sergeant Godfrey’s state of knowledge – his awareness - of the allegations and the family members’ concerns.
What weight would be given to the evidence would be a matter for the Tribunal at the hearing of the review, as would the significance of any such findings in determining whether the release of the photograph was for an official or improper purpose. However, if such findings were to be made, the Tribunal would properly take the findings into account as relevant context to the release of the photograph and whether the release was for an official or improper purpose. Further, the new evidence is Detective Sergeant Godfrey’s own affidavit evidence.
In those circumstances, and having regard to the matter outlined in the following paragraph, I would grant leave to adduce the new evidence. To refuse to do so would leave the Tribunal uninformed about a matter that touches directly upon the context that Detective Sergeant Godfrey stated, in documents given to the disciplinary hearing, informed his decision to release the photograph.
Detective Sergeant Godfrey submitted that, if the Tribunal were to grant leave to the adduce the new evidence, the review should be listed for a directions hearing to consider the progression of the matter, including with respect to receiving further evidence in response to the new evidence. While the new evidence is the form of Detective Sergeant Godfrey’s own affidavit, there may be other evidence that may not have been relevant for the purposes for which the affidavit was sworn and therefore not included in it, but which is relevant to his state of knowledge and that it would be unfair not to permit to be adduced. I accept Detective Sergeant Godfrey’s submission and will make directions according.
s 291H(2)(b). It is not necessary to consider this submission further.
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