Crime & Corruption Commission v Newman

Case [2022] QCATA 82

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Crime & Corruption Commission v Newman & Anor. [2021] QCATA 82
PARTIES: CRIME AND CORRUPTION COMMISSION

(applicant/appellant)

v
HELEN NEWMAN
DEPUTY COMMISSIONER TRACY LINFORD

(respondent)

APPLICATION NO:

APL288-20

ORIGINATING APPLICATION NO/S:

OCR246-19
OCR247-19

MATTER TYPE:

Appeals

DELIVERED ON:

30 May 2022

HEARING DATE:

24 June 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1.   The appeal is dismissed.

CATCHWORDS:

APPEALS – OCCUPATIONAL REGULATION – POLICE OFFICERS – DISCIPLINE – appeal of disciplinary sanction of demotion – whether sanction inadequate – whether Tribunal took into account irrelevant considerations – whether Tribunal made findings of fact unsupported by evidence.

Police Service Administration Act 1990 (Qld) s 7A.2

Crime and Corruption Act 2001 (Qld) s 219Q(1) s 219Q(2)

Anderson v Crime and Corruption Commission & Anor [2021] QCATA 68

Beaven v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542.

Briginshaw v Briginshaw (1938) 60 CLR 336
Caesar v Deputy Commissioner Brett Pointing [2017]
QCAT 169     

Chairman, National Crime Authority v Flack (1988) FCR 16

Deputy Commissioner StewartvDark [2012] QCA 228

Ericson v Queensland Building Services Authority [2013] QCA 391

Flack  v Chairperson, National Crime Authority (1997) 80 FCR 137
CCC v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510

Flegg v Crime and Misconduct Commission [2014] QCA 42
Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61
Jones v Dunkel (1959) 101 CLR 298
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lee v CCC & Anor [2014] QCATA 326

Lee v Crime and Corruption Commission [2020] QCA 201

Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55

Newman v Deputy Commissioner Linford APM & Anor (No 2) [2020] QCAT 328
Re Bowen [1996] 2 Qd R 8

APPEARANCES & REPRESENTATION:

Applicant:

Gorry, JL counsel for the Crime and Corruption Commission

1st Respondent:

Hollands, S counsel instructed by Gilshenan & Luton

2nd Respondent:

Nicolson, MD counsel instructed by the Queensland Police Service Legal Unit

REASONS FOR DECISION

  1. Ms Newman, a former Sergeant in the Queensland Police Service (‘QPS’), faced an allegation of misconduct in respect of providing false and misleading information to a Superintendent and ESC investigators between 15 October 2017 and 20 March 2018. Deputy Commissioner Linford found the allegation of misconduct substantiated and issued a disciplinary declaration having concluded that (had Ms Newman not earlier resigned) a sanction of demotion to Senior Constable would have been imposed.

  2. Ms Newman applied to QCAT for review of the Deputy Commissioner’s decision. On review, the Tribunal confirmed the Deputy Commissioner’s decisions substantiating the allegation of misconduct in its decision dated 20 May 2020 (the substantiation decision) and sanction in its decision dated 31 August 2020 (the sanction decision).

  3. The Crime and Corruption Commission (CCC) appeals the Tribunal’s sanction decision only. It ultimately submits that the Tribunal erred in determining the correct and preferable decision in not finding that Ms Newman would have been dismissed…

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Details
AGLC
Crime & Corruption Commission v Newman [2021] QCATA 82
Case
[2022] QCATA 82
Decision Date

CaseChat Overview and Summary

In the matter of Crime & Corruption Commission v Newman, the Queensland Civil and Administrative Tribunal (QCAT) considered an appeal against a disciplinary sanction imposed on Ms. Newman, a former member of the Queensland Police Service (QPS). The primary issue was whether the sanction of demotion was inadequate, and whether the Tribunal had considered irrelevant factors or made findings unsupported by evidence. The appeal centred on the Tribunal’s handling of the disciplinary matter, specifically whether Ms. Newman provided false and misleading information regarding the whereabouts of Detective Inspector Colfs’ official police diaries.

The court was tasked with determining if the Tribunal erred in its findings regarding the adequacy of the disciplinary sanction and whether it improperly considered extraneous factors or made factual determinations without sufficient evidence. The grounds for appeal included the assertion that the Tribunal failed to adequately consider the adequacy of the disciplinary sanction, that it took into account irrelevant considerations, and that it made findings of fact unsupported by evidence.

The court found that if any of the grounds for appeal involved questions of fact or mixed law and fact, leave to appeal would be refused as no material error was identified, and an appeal was not necessary to correct a substantial injustice. The court reasoned that the Tribunal had carefully considered the evidence and made its findings on the basis of the material presented. The appeal was dismissed, affirming the Tribunal’s decision as correct.

The orders of the court were that the appeal be dismissed, thereby upholding the Tribunal’s decision on the disciplinary sanction imposed on Ms. Newman.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

If I am wrong, and any of the grounds involves a question of fact or mixed law and fact, I would refuse leave to appeal as no material error is identified and an appeal is not necessary to correct a substantial injustice for the reasons explained below. The Tribunal’s decisionBackground To provide the context, some details from the substantiation decision are set out. In its substantiation decision, the Tribunal confirmed the one matter of misconduct (or ‘the disciplinary matter’) alleged was substantiated. The disciplinary matter alleged that between 15 October 2017 and 20 March 2018, Ms Newman’s conduct was improper in that she provided false and misleading information to Superintendent McNab (‘McNab’) and QPS investigators attached to Ethical Standards Command (‘ESC’), on the basis of specified particulars, numbered 1-8. The particulars set out the dates of conversations, emails and extracts from the transcripts of disciplinary interviews, concerning Detective Inspector Colfs’ (‘Colfs’) official police diaries and a lawfully intercepted telephone conversation between Ms Newman and Colfs on 5 December 2017 (the intercept). The Tribunal set out a helpful background summary.[6] Relevantly, on 24 August 2017, ESC commenced an investigation about Colfs, with whom Ms Newman had worked. On 13 October, Colfs was suspended from duty, and her office was searched by officers including Superintendent McNab. No QPS official diaries were located during the search. The office remained unlocked. Colf’s office was again searched on 16 October 2017 and no diaries located. McNab asked Ms Newman if she’d seen any of Colf’s diaries. Ms Newman replied that she ‘hadn’t.’ [6]Newman v Deputy Commissioner Linford APM & Anor [2020] QCAT 179 [8]. On 23 October 2017, Ms Newman packed up Colf’s drawers and bookshelves from her office and relocated them to her office. She later told ESC investigators that the contents included ‘big blue books’. A telephone call between Ms Newman and Colfs on 5 December 2017 was lawfully intercepted. During the intercept, when Colfs asked if she had packed her office drawers, Ms Newman told Colfs, ‘…I have some diaries.’ By text message on 12 December 2017, Ms Newman replied to Colfs that she has her ‘scanner and reading glasses and the notebook.’ On 7 February 2018, Detective Acting Inspector Herpich emailed Ms Newman stating that he required Colfs’ work diaries. Ms Newman stated that , ‘… there are no diaries in the office to provide.’ In an ESC interview on 19 February 2018, Ms Newman was asked whether she ‘.. got any diaries out of Colfs’ office at all?’. Ms Newman said, ‘No.’. A second ESC interview later took place on 19 March 2018 during which Ms Newman stated that she had ‘not that I can remember’ had a conversation with Colfs in relation to her diaries since she was stood down. On 14 August 2018, Ms Newman was stood down from duty. On 9 November 2018, Ms Newman separated from the QPS.

Ratio Decidendi

Legal Principle Established

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