Flori v Winter
[2023] QDC 110
•21 June 2023
DISTRICT COURT OF QUEENSLAND
CITATION:
Flori v Winter & Ors [2023] QDC 110
PARTIES:
RICKY ANTHONY FLORI
(plaintiff)
v
DAVID BRETT WINTER(first defendant)
PAUL DOYLE
(seventh defendant)
STATE OF QUEENSLAND
(ninth defendant)FILE NO/S:
BD1775/20
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
Brisbane
DELIVERED ON:
21 June 2023
DELIVERED AT:
Townsville
HEARING DATES:
20 and 21 February and 13 March 2023
JUDGE:
Jarro DCJ
ORDER:
1. The plaintiff’s claim is dismissed.
2. I will hear from the parties as to costs.
CATCHWORDS:
TORTS – STATUTORY REPRISAL – where the plaintiff claims damages for damage suffered from the reprisals by the first and seventh defendants – where the plaintiff claims protection under the Whistleblowers Protection Act 1994 (Qld) (repealed) for a public interest disclosure – where the plaintiff claims that the actions that constitute the acts of reprisal by the first and seventh defendants caused, or attempted to cause, the plaintiff detriment.
COMMUNICATIONS LAW – WHISTLEBLOWER PROTECTION AND PUBLIC INTEREST DISCLOSURE LEGISLATION – where the plaintiff sent a letter to the Crime and Misconduct Commission alleging conduct engaged in by two police officers – where the plaintiff contends the letter was a public interest disclosure under s 15 of the Whistleblowers Protection Act 1994 (Qld) (repealed) and therefore the Public Interest Disclosure Act 2010 (Qld) – whether the letter contained information about conduct which amounts to “official misconduct” under s 15 of the Crime and Misconduct Act 2001 (Qld).
Public Interest Disclosure Act 2010 (Qld) s 40, s 42, s 74
Whistleblowers Protection Act 1994 (Qld) (repealed) s 14, s 15, Sch 6Crime and Misconduct Act 2001 (Qld) s 14, s 15
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89
Enzed Holdings Limited v Wynthea Pty Limited (1984) 4 FCR 450
Flori v Winter [2019] QSC 106
Flori v Winter (2019) 3 QR 22George v Rocket (1990) 170 CLR 104
COUNSEL:
M Black for the plaintiff
SA McLeod KC and MA Wilkinson for the first, seventh and ninth defendants
SOLICITORS:
Gnech and Associates for the plaintiff
The Crown Solicitor for the first, seventh and ninth defendants
Mr Flori, a former police officer, is seeking damages for the statutory tort of reprisal against two higher ranked police officers and their employer under s 42 of the Public Interest Disclosure Act 2010 (Qld) (“PID Act”). The genesis of the tort has arisen because on 21 February 2010, Mr Flori penned a letter under someone else’s name and sent it to the then Crime and Misconduct Commission (“the February 2010 letter”). The letter, among other things, made allegations that a senior male police officer (“Senior Sergeant [A]”) and a junior female police officer (“Constable [B]”) had engaged in improper sexual conduct in a police car in the carpark of a fast-food premises at the Gold Coast.[1] The February 2010 letter ended with the name “Craig Mcgrath” and did not identify Mr Flori. Mr Flori later admitted that he wrote and sent the February 2010 letter to the Crime and Misconduct Commission (“CMC”) at a disciplinary interview in April 2012. The February 2010 letter was as follows:[2]
[1]The names of the officers alleged to have committed certain things have been redacted to prevent their identification. They are known in these reasons as Senior Sergeant [A] and Constable [B].
[2]Exhibit 2.
“21/2/10
CMC
GPO Box 3123
Brisbane Qld 4001This is something that I know about a supervisor on the Gold Coast it refers to Senior Sergeant [A] and Constable [B]. I have spoken to [A] but he denies everything.
In late 2009 [A] was seen at Red Rooster at Robina by Sgt Sean Miles and Sen Const Bec Lee with [B] in the Gold Coast District Duty Officer police car. It was obvious that [B] had her head in [A]’s lap giving him a head job.
In the last month in the early hours of the morning Const Sam Walsh and Sgt Gillies from Coomera found a car parked in the carpark of the shops in Cottonwood plaza at Oxenford by itself in the early hours of the morning. They checked and it was [B]’s car. A very short time later the Gold Coast District Duty Officer police car speed out from behind the shopping centre and left. [B] was in that car. [A] was spotted at Burleigh heads in plain clothes with Constable [B], both got out of the Gold Coast District Duty Officer police car. He was seen by an officer that was at the academy with him and knew him personally.
On nightwork [A] meets up with [B] to have coffee at the BP at Oxenford outside his district on a regular basis. He is working at the time and sometimes she comes with him, or just meets him there.
[B] is the officer involved in the stupid prank at Coomera some time ago where it was swept under the carpet by a District Duty Officer Greg Break. [B] has been seen in the Gold Coast District Duty Officer car on multiple other occasions off duty.
Southport Police believe that special attention is given to [B] by the Gold Coast District Duty Officers and we feel this is wrong by a person who is supposed to be supervising. I can see the headline. Senior police officer receives fellatio in police car.
Craig Mcgrath”
Background Matters
Mr Flori asserts three acts of reprisal, taken some two years after the February 2010 letter. Before identifying the three reprisals, it is necessary to give some further brief factual context. That is, in early 2012, the media obtained confidential Queensland Police Service closed circuit television footage which was unrelated to the issues canvassed in the February 2010 letter. It concerned the arrest of an individual on the Gold Coast on 29 January 2012 (“the CCTV footage”).
The Queensland Police Service (“QPS”) suspected that Mr Flori had released the CCTV footage. So, on 14 March 2012, a search warrant was issued in relation to two alleged offences having been committed by Mr Flori, namely:
(a)misconduct in relation to public office pursuant to s 92A of the Criminal Code 1899; and,
(b)fraud pursuant to s 408C(1)(a)(i) of the Criminal Code 1899.
The search warrant was obtained by the first defendant, Mr Winter, who at the time, was a Senior Sergeant with the Internal Investigations Branch of the Ethical Standards Command of the QPS.
The search warrant was executed at Mr Flori’s house on 16 March 2012, by Mr Winter and other officers. Mr Flori’s computer was seized. The forensic analysis of Mr Flori’s seized computer revealed that the February 2010 letter was created, even though the letter had nothing to do with the search warrant because the grounds for the warrant related to an allegation surrounding the improper release of the CCTV footage to the media.
Later that evening, Mr Winter drafted an “Executive Briefing Note” regarding allegations of misconduct against Mr Flori surrounding the release of the CCTV footage. The purpose of the Executive Briefing Note was to brief the Deputy Commissioner (Regional Operations) about an allegation of misconduct against Mr Flori surrounding the unauthorised release of the CCTV footage.
Mr Flori was directed by Mr Winter to participate in a disciplinary interview on 19 April 2012 which was conducted by Mr Winter and his superior, Inspector Johnson.
The direction given by Mr Winter and Mr Flori’s response to that direction was as follows:
“[WINTER:] Pursuant to s 4.9 of the Police Service Administration Act 1990, the Commissioner has directed all members of the police service to truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an enquiry or investigation on behalf of the Commissioner into any matter, including an administrative or disciplinary complaint. That direction is located in s 18.2.4.4.9 of the Human Resource Management Manual. I remind you that you are bound by the direction. Should you refuse or fail to comply with the Commissioner’s direction, you commit a breach of s 9-1-c of the Police Service Discipline Regulations 1990. Failure to comply with a lawful direction of the Commissioner provides grounds for disciplinary action. Do you understand what I have just told you?
[FLORI:] Yes I do. I am aware of the provisions of the Police Service Administration Act which gives the Commissioner power to give lawful directions to police officers, staff members and other employees of the QPS. I am aware, aware the Commissioner has given a standing direction to police officers which require me to fully, promptly and truthfully answer all questions put to me by officers conducting a disciplinary, a discipline or administrative investigation. I understand I am bound by the Commissioner’s direction and if I do not answer I commit a serious disciplinary offence. I will not answer any questions voluntarily but will answer them under protest and duress.”
During the disciplinary interview, Mr Flori was asked questions by Mr Winter in relation to the release of the CCTV footage. It was during the course of the disciplinary interview that Mr Winter showed Mr Flori a copy of the February 2010 letter and asked Mr Flori what he had to say about that letter. Despite initially indicating that he had not written the February 2010 letter, Mr Flori subsequently said that he had. Initially Mr Flori told the investigators:
(a)“First time I’ve seen it”; and later,
(b)“Nothing to say about it”.
Then upon further questioning by Mr Winter, Mr Flori said that he “probably” wrote the February 2010 letter and then Mr Flori stated, “Yeah well I did write it”.[3]
[3]See Exhibit 10.
Mr Flori gave evidence that he thought he had “protections” in relation to the February 2010 letter and he “was conflicted” at the time because he “felt that [he] didn’t have to” tell the investigators that he wrote the letter.[4]
[4]T1-16, lines 35-40.
Mr Winter acknowledged that as part of the disciplinary interview there was what he described a “challenge phase” with Mr Flori which could be perceived as confrontational. He did not “recall any raising of voices” but accepted there would have been instances where he or the other interviewer “cut off” Mr Flori when speaking (albeit, he said that would not have been deliberate).[5]
[5]T2-8, lines 20-33.
First Act of Reprisal
The day after the disciplinary interview, on 20 April 2012, Mr Winter prepared an “Executive Briefing Note – Update One” (“the EBN Update”).[6] The EBN Update referred to the February 2010 letter and was distributed to a number of senior police officers.
[6]Exhibit 3.
Among other things, the EBN Update:
(a)summarised matters that forensic analysis of Mr Flori’s seized computers had revealed, including:
(i)in relation to the release of the CCTV footage and the “[email protected]” email account; and,
(ii)in relation to the February 2010 letter:
“A letter was created on 21 February 2010 addressed to the Crime and Misconduct Commission complaining of misconduct by Senior Sergeant [A], inaction by Senior Sergeant Greg Brake and the letter had been dishonestly and falsely signed by Senior Sergeant Craig McGrath”.
(b)referred to information provided by Mr Flori in the disciplinary interview, including:
(i)in relation to the “[email protected]” email account; and,
(ii)in relation to the February 2010 letter:
“Sergeant Flori admitted he authored a letter to the Crime and Misconduct Commission on 21 February 2010 where he made allegations against Senior Sergeants [A] and Greg Brake. Sergeant Flori admitted to typing the name Craig McGrath on the base of the letter to conceal Flori’s identity.”
(c)stated:
“Investigations established Sergeant Flori submitted a formal review of the promotions of Senior Sergeants [A], Brake, McGrath and Joachim. Sergeant Flori’s anonymous letter to the CMC dated 21 February 2010 specifically identifies Senior Sergeants [A], Brake and McGrath. The email to the media offering to release the Begic CCTV recordings emphasises the action of Joachim washing away blood and not the excessive force towards Mr Begic. Investigators are satisfied the actions of Sergeant Flori are malicious towards the Gold Coast District Duty Officers who were promoted over Sergeant Flori.”
(d)stated:
“As a result of investigations ESC intend pursuing disciplinary action for official misconduct encompassing failure to comply with statutory obligations, misuse of equipment, misappropriation of official property, inappropriate access for personal gain, disclosing information to cause a detriment to Senior Sergeant Joachim, failing to adequately safeguard property and being untruthful to officers investigating disciplinary allegations.”
(e)recommended that stand down action be considered in respect of Mr Flori; and,
(f)was provided to or received by officers of the QPS, including an Acting Assistant Commissioner, Deputy Commissioner (Regional Operations) and Assistant Commissioner, South Eastern Region.
Mr Flori relies upon the action taken on 20 April 2012, through the EBN Update, as an act of reprisal in respect of what he says was a public interest disclosure (“PID”). It is, as stated, one of the three acts of reprisal. Mr Flori has asserted that due to the EBN Update, Mr Winter caused, or attempted to cause, detriment to him, in that the detriment caused or attempted to be caused was disadvantage or adverse treatment about his career as a police officer, damage to his reputation, including damage to his professional reputation, and an attempt to induce the Acting Assistant Commissioner to cause detriment to him by recommending that the Acting Assistant Commission approve disciplinary action against Mr Flori.
The defendants deny that the EBN Update and its distribution amounted to a reprisal under the PID Act.
Second Act of Reprisal
The second act of reprisal relied upon by Mr Flori is that on 31 August 2012, Mr Winter prepared a report arising out of his investigations regarding Mr Flori (“the Investigation Report”).[7] The Investigation Report raised five allegations against Mr Flori, including what was described as “Allegation 4” which stated:
“Allegation 4 – Untruthfulness other (278)
This complaint relates to Sergeant Flori creating a letter on his home computer, concerning misconduct by Senior Sergeant [A], and then dishonestly sending that letter under the assumed identity hand of Senior Sergeant McGrath to the Crime and Misconduct Commission (CMC)”.
[7]Exhibit 4.
The Investigation Report concluded that each of the allegations (including Allegation 4):
(a)were considered official misconduct as defined by the Crime and Misconduct Act 2001;
(b)were capable of being substantiated; and,
(c)recommended the matter may be suitable for disciplinary proceedings.
The Investigation Report was provided to a number of police officers.
Mr Flori relies upon the Investigation Report as the second act of reprisal. He has asserted that because of it, Mr Winter caused, or attempted to cause, detriment to him, in that the detriment caused or attempted to be caused was disadvantage or adverse treatment about his career as a police officer, damage to his reputation, including damage to his professional reputation, and an attempt to induce the Superintendent, Internal Investigations Branch, to cause detriment to him by recommending disciplinary proceedings.
The defendants deny that the Investigation Report and its distribution amounted to a reprisal under the PID Act.
Third Act of Reprisal
The third act of reprisal Mr Flori has relied upon relates to Mr Doyle’s involvement, being the seventh defendant, who was the Assistant Commissioner of the Ethical Standards Command. On 25 September 2012, Mr Doyle wrote to the CMC relevantly stating, inter alia, that he supported Mr Winter’s recommendation regarding “Allegation 4” being the “complaint alleged the subject member submitted a complaint to the CMC falsely using the name of another police officer” (“the Referral Letter”).[8] The Referral Letter attached a copy of the Investigation Report and recommended a referral for the commencement of disciplinary proceedings. It supported the recommendation that the allegation was official misconduct, was capable of being substantiated and recommended the matter be referred to South Eastern Region for the commencement of disciplinary proceedings at the level of Assistant Commissioner.
[8]Exhibit 5.
The Referral Letter was provided to a number of police officers.
It is asserted by Mr Flori that Mr Doyle caused, or attempted to cause, detriment to Mr Flori, being the disadvantage or adverse treatment about Mr Flori’s career as a police officer and damage to reputation, including damage to Mr Flori’s professional reputation.
The defendants deny that the Referral Letter and its distributions amounted to a reprisal under the PID Act.
After the Referral Letter, on 30 July 2013, a disciplinary hearing notice was issued to Mr Flori alleging misconduct in relation to the CCTV footage along with an allegation that he was untruthful in his disciplinary interview with Mr Winter.[9] As part of that allegation, the disciplinary notice included the following:
“A letter purporting to be written by Craig McGrath was received at the Crime and Misconduct Commission on 22 February 2010 alleging misconduct by a number of police officers in particular, Senior Sergeant [A] ”.[10]
[9]Exhibit 7, p 2.
[10]Exhibit 7, p 3.
At some point in 2013, Mr Flori was again transferred, unrequested, by the QPS to the Southport Watchhouse.[11]
[11]T1-18, lines 39-45.
In addition to the disciplinary proceeding, criminal proceedings in respect of the CCTV footage were pursued against Mr Flori. Mr Flori has not alleged that the laying of the criminal charge was a reprisal.
On or about 18 June 2015, Mr Flori was charged with the offence of misconduct in relation to public office under s 92A of the Criminal Code 1899.
Mr Flori was later acquitted of one of the criminal charges and found to have no case to answer on the other.
On 9 September 2015, the disciplinary notice against Mr Flori was withdrawn.[12] By about December 2015, Mr Flori took leave without pay. Mr Flori resigned from the QPS on 3 November 2017.
[12]Exhibit 8.
Principal Issues for Consideration
To resolve Mr Flori’s claim that the EBN Update, the Investigation Report and the Referral Letter constituted an unlawful reprisal, the key issues to determine include:
(a)Whether the February 2010 letter constituted a public interest disclosure (having regard to the Whistleblowers Protection Act1994 in force at the time)? That issue requires the consideration of Mr Flori’s state of mind at the time he made the disclosure (as discussed by the Court of Appeal in Flori v Winter (2019) 3 QR 22).
(b)Did Mr Winter (via the EBN Update or the Investigation Report) cause or attempt to cause Mr Flori detriment because Mr Flori sent the February 2010 letter?
(c)Did Mr Doyle (via the Referral Letter) cause or attempt to cause Mr Flori detriment because Mr Flori sent the February 2010 letter?
If one or more reprisal is established, an assessment of the appropriate quantum of damages (including consideration as to whether aggravated or exemplary damages as sought by Mr Flori) should be made.
Witnesses’ Evidence
Mr Flori’s sole witness at trial was himself. Relevantly, Mr Flori gave evidence as to the sources of his information when writing the February 2010 letter and his reasons for submitting that letter to the CMC, including that he had grounds to consider the information he received was credible and reliable. On the other hand, the defendants called a number of witnesses who denied or could not recall having any discussions with Mr Flori or others about the matters which were contained in the February 2010 letter. Mr Flori also gave evidence that shortly after the disciplinary interview in 2012, he promptly requested whistle-blower protection on 26 April 2012. The defendants called Inspector Mick Stenner, who gave evidence as to the circumstances for Mr Flori’s request for whistle-blower protection. I will refer to that evidence later. In addition, Mr Flori gave evidence as to the detriment he experienced arising out of the actions of Messrs Winter and Doyle, including the distress and reputational harm which resulted in his eventual departure from the QPS.
Mr Flori’s Evidence
Although Mr Flori wrote the February 2010 letter, he did not identify himself in it. He attributed the author of that letter to “Craig Mcgrath” because, according to Mr Flori, Mr McGrath “was a relevant witness and [Mr Flori] thought he was pertinent because he’d actually spoken to [A] about it” Mr Flori considered Mr McGrath “had a good level of integrity”.[13] Mr Flori did not put his name forward because he thought it was of no value because he did not witness the allegations. He said “[he] couldn’t add anything” and he feared adverse consequences for reporting the conduct.[14] Immediately to me, that begs the question as to why he would proffer someone else’s name, but that is not a material factor to the determination of the principal issues.
[13]T1-14, lines 18-26.
[14]T1-14, lines 30-32 and 36-40.
When asked by his counsel what information he received from Craig McGrath, Mr Flori said:
“I spoke to him at Surfers Paradise [indistinct] on the fifth floor and asked him – asked him about what he knew about [A] and [B]. He knew – he said that he knew that they’d been meeting in both Gold Coast and Coomera, and he further went on to say that he was seeing her on The Esplanade at Burleigh getting out of the marked police vehicle in plain clothes and with some sort of picnic, and they wandered off and had a picnic. And I asked if he was sure, and he said yeah, Toby Wilkinson had seen him and Toby went through with [A] through the academy. He was quite confident. …
He – he also said that he’d – he’d confronted [A] and – and he said that he told him to eff off and it was none of his business.”[15]
[15]T1-13, line 44 to T1-14, line 7.
Regarding the other sources of information aside from Mr McGrath, Mr Flori said:
“So I overheard Bruce Pearce in Surfers Paradise Station in the charging area. He was holding court, for a better term, talking to constables, boasting about the goings on, the misconduct, really, that [A] was – was doing in terms of rendezvousing with [B], getting sexual favours from her…
Do you recall specifically what he said in terms of sexual favours?---Head – head jobs behind – actually, I think he might have mentioned the – behind – he used to meet at the BP as well, I think, and behind a shopping centre of Coomera. He didn’t provide, like, witness names or anything, though.”[16]
[16]T1-10, line 45 to T1-11, line 7.
Mr Flori viewed the allegations as accurate and was of the belief Senior Sergeant [A] may have been committing certain offences. He gave the following evidence:
“Mr Flori, did you form – when you learned this information from Senior Sergeant Pearce and Senior Sergeant Mcgrath, did you form any views about reliability of that information?---I was – I was confident that it was – that it was true. And coupled with other sources, I – the information, I was very confident that [A] had been – was committing crimes, in a way. A sexual crime, unlawful use of a motor vehicle, plus also misconduct, asserting influence over a junior constable for sexual favours. There was just nothing right about it. And, you know, I thought it was super serious. It was a little disappointing that the officers that told me this information hadn’t reported it, but I felt fairly – very obliged to do what I had to do.”[17]
[17]T1-14, lines 18-26.
As noted, by about December 2015, Mr Flori took leave without pay. He said:
“I didn’t return to work after that. And the relationship with the – my employer had just – was so – soured. The staff that I had to work with, the, you know, junior officers ignoring instructions, shunning me. Not even – not even personal hellos, you know. Just totally ignoring me. It was just difficult hard work mentally just to turn up every day, you know”.[18]
[18]T1-20, lines 36-41.
Both Mr McGrath and Mr Pearce gave evidence and neither recalled speaking with Mr Flori about the allegations.
Mr Pearce’s Evidence
Mr Pearce, a current serving police officer since October 1998, was the District Duty Officer in the Gold Coast district from August 2009 until 2020. Mr Pearce did not recall speaking to Mr Flori about any allegations which contributed to the February 2010 letter.[19] Mr Pearce also, contrary to the evidence of Mr Flori, did not recall “boasting” at a police station with other officers about alleged sexual favours between [A] and [B].[20] In fact, under cross-examination, Mr Pearce denied that he was talking in the charging room to a number of constables and saying words to the effect that [A] “was getting head jobs” from [B].[21] He denied that he had been talking about [A] being “caught getting head jobs at the BP or shopping centre” from [B], despite Mr Flori’s evidence to the contrary.[22] Under cross-examination, it was suggested to Mr Pearce that the reason for his denials was to “avoid getting in trouble for failing to report it”. His candid response was, “I didn’t know about it”.[23] Mr Pearce also denied that any officers approached him with a suggestion that there was some sort of sexual relationship between [A] and [B]. His evidence was that he did not hear “unsubstantiated rumours about a sexual element” and did not hear any rumour about any incident “that I could say that they were involved with anything more than a friendship or some sort of different sort of relationship”.[24] Mr Pearce was aware of “gossip” but that did not include any suggestion that there was a sexual relationship between [A] and [B] during work time. As far as Mr Pearce knew, their relationship was “some sort of mentor relationship”.[25] I viewed Mr Pearce as a credible and reliable witness who has nothing to gain from the outcome of these proceedings.
[19]T1-54, lines 34-36.
[20]T1-54, lines 38-43.
[21]T1-58, lines 5-8.
[22]T1-58, lines 12-13.
[23]T1-57.
[24]T1-56, lines 28-32.
[25]T1-56, line 46.
Evidence of Mr McGrath
Detective Chief Inspector Craig McGrath was, at the time of the February 2010 letter, a Senior Sergeant District Duty Officer for the Gold Coast. In early March 2010, Mr McGrath recalled being contacted by an investigator with the CMC. The purpose of the contact was to discuss the February 2010 letter. Mr McGrath explained to that investigator that he, “had no idea what he was referring to” and informed the investigator that he had not sent the letter.[26] In August 2010, Mr McGrath was interviewed and, for the first time, saw a copy of the February 2010 letter. A further interview took place about 12 months later. During the interviews, Mr McGrath said that he did not have any knowledge about what was contained in the February 2010 letter, especially paragraph two. For ease of reference, the second paragraph read:
“In late 2009 [A] was seen at Red Rooster at Robina by Sgt Sean Miles and Sen Const Bec Lee with Constable [B] in the Gold Coast District Duty Officer police car. It was obvious that [B] had her head in [A]’s lap giving him a head job”.
[26]T2-38, lines 39-43.
Mr McGrath said that he had never spoken with Mr Flori prior to or after the letter. He also gave evidence that during late 2009 and early 2010, no officers approached him about a suggestion that Senior Sergeant [A] was in some form of relationship with [B]. He did not hear any discussions to that effect. He heard rumours and gossip to the effect that their “connection” or “association” was “different”.[27] The rumours extended to whilst Senior Sergeant [A] was on duty and Constable [B] off duty, they were spending time together, but he was not aware of any rumours that included them meeting up for coffee or having private discussions.[28] He recalled having a discussion with Senior Sergeant [A] when, during pick up and drop off, Constable [B] was in the vehicle in uniform. Mr McGrath said he asked [A], “what’s the situation here, at which time [he] was informed [B] was part of the – the QPS Mentoring Program of which [A] was a mentor”.[29] He had not heard any rumours to the effect that there were any inappropriate sexual relations going on between [A] and [B].[30]
[27]T2-42, lines 9-15.
[28]T2-42, lines 17-21.
[29]T2-42, lines 23-31.
[30]T2-43 and T2-44.
Contrary to Mr Flori’s evidence, Mr McGrath denied speaking with Mr Flori at the Surfers Paradise Police Complex and telling him words to the effect that:
(a)Senior Sergeant [A] and Constable [B] had been meeting up inappropriately whilst on duty at places at Coomera or the Esplanade at Burleigh;
(b)Senior Sergeant [A] and Constable [B] had been observed getting out of a marked police car in plain clothes;
(c)A police officer named Toby Wilkinson had seen Senior Sergeant [A] and Constable [B] meeting up; and,
(d)He had confronted Senior Sergeant [A] about it and that Senior Sergeant [A] had told Mr McGrath to “fuck off”.[31]
[31]T2-43, lines 27-41.
Like Mr Pearce, my impression of Mr McGarth was that he was a credible and reliable witness who had nothing to gain from the outcome of these proceedings.
It was highlighted on Mr Flori’s behalf that whilst Mr Pearce and Mr McGrath each denied having conveyed the relevant information to Mr Flori, it was clear from their evidence that they were at least aware of information of a similar nature of what Mr Flori had described in the February 2010 letter. It was contended that, regarding Mr Pearce’s evidence during evidence in chief, Mr Pearce did not deny, but could not “recall speaking to [Mr Flori] about any of these allegations” in the February 2010 letter and in cross-examination, he denied that he had a conversation described by Mr Flori as having knowledge of a sexual relationship between [A] and [B], but volunteered that their relationship appeared “odd”.[32] When asked if he recalled any other officers approaching him with a suggestion that there was some sort of sexual relationship between Senior Sergeant [A] and Constable [B], Mr Pearce’s response was highlighted to me, namely:
“It was – it was a bit odd. I understand there was some mentorship between Senior Sergeant [A] and Constable [B] – that I understood there was. I know they hung out quite a lot together, but I wasn’t advised of any actual sexual relationship”.
[32]T1-56.
It was also highlighted on Mr Flori’s behalf that Mr Pearce was aware of “unsubstantiated rumours” and “gossip” of a sexual relationship between Senior Sergeant [A] and Constable [B].[33] He did not think that a sexual relationship between a senior sergeant and a constable within this sphere of leadership would have been something that needed to be brought to the attention of management, but accepted that a sexual relationship occurring during work time would need to be reported.
[33]T1-56.
It was also highlighted on Mr Flori’s behalf that Mr McGrath’s evidence was of similar effect in that although each denied having conveyed the relevant information to Mr Flori, it was clear from his evidence that he was at least aware of information of a similar nature to what Mr Flori described in it. For instance, Mr McGrath said he was aware of “potentially … one occasion” when “[B], whilst off duty might have been spending time with [A] whilst he was on duty”.[34] When asked whether he confronted or spoke to [A] about [A]’s association with [B], Mr McGrath said “I had spoken to him, yes”.[35] It was submitted that Mr McGrath was moved to approach [A] about this issue because he had seen [B] (in uniform) in the District Duty Officer vehicle with [A]. Regarding the mentoring program, Mr McGrath disavowed, it was highlighted, being “aware of what the mentoring involved”.[36]
[34]T2-42, lines 39-43.
[35]T2-42, lines 23-24.
[36]T2-43, lines 4-6.
It was also highlighted on Mr Flori’s behalf that several significant features emerged from the evidence of Messrs Pearce and McGrath, namely:
(a)there were rumours about Senior Sergeant [A] and Constable [B] being in a sexual relationship;
(b)the relationship between Senior Sergeant [A] and Constable [B] was seen as “odd” or “different” by other senior sergeants/District Duty Officers;
(c)Mr Pearce knew that Senior Sergeant [A] and Constable [B] “hung out quite a lot together”;
(d)Mr McGrath was at least aware of one occasion when Constable [B], whilst off duty, was spending time with Senior Sergeant [A] whilst he was on duty; and,
(e)on another occasion, Mr McGrath had cause to speak directly with Senior Sergeant [A] about [A]’s association with Constable [B] (after seeing [B] in the District Duty Officer vehicle).
It was submitted on Mr Flori’s behalf that because of these matters, there was a degree of support for Mr Flori’s version of events. It was submitted that Mr Flori’s account of what he heard from Mr Pearce and Mr McGrath should be accepted. It was said that his account “rings true in the context of situation where there was clearly enough to put both Mr Pearce and Mr McGrath on notice of something unusual going on between Mr [A] and Ms [B] (something “odd” or something “different”)”. Whilst both Mr Pearce and Mr McGrath denied having known more about [A]’s situation, they were in the very difficult position of seeking to recall conversations from over a decade ago where, if they admitted to having known more about the issue at that time, they could be in trouble for not reporting it back then. The submission was made that that may explain their reticence.
It was also submitted that support for Mr Flori’s version of events could be demonstrated because the CMC referred the February 2010 letter to the QPS for investigation, whereupon disciplinary proceedings were taken against [A], for an allegation, inter alia, that was substantiated against [A] who was on-duty, and he had “inappropriately associated” with [B] who was off-duty. [A] was sanctioned by way of a reduction in salary for this misconduct (and demoted in rank in relation to other misconduct).[37] It was contended that whilst not all of the allegations in the February 2010 letter were prosecuted or substantiated against [A], Mr Flori’s decision to give the information to the CMC achieved an obvious public good – it brought misconduct of a QPS Senior Sergeant to light to be dealt with. Notably, it did so in circumstances where other police officers had been aware of [A]’s misconduct, yet none of them reported that misconduct.
[37]Exhibit 13.
I return back to the facts. On 25 April 2012, Mr Flori wrote to Mr Winter advising him, inter alia, that he wished to claim whistle-blower protection for the February 2010 letter. He emailed Mr Winter as follows:
“Hi Senior,
The CD arrived yesterday, thank you.
Can I advise you that I want to claim Whistleblowers’ protection for the letters on my computer.
Regards,Rick Flori”[38][38]Exhibit 6.
Mr Winter’s Evidence
Mr Winter gave evidence that following receipt of the email, he referred it to Mr Mick Stenner who was an inspector with the Ethical Standards Command Internal Witness Support Unit. Mr Flori said that he was concerned at the time about the investigators’ attitude about the February 2010 letter, concerned about some information that had been released to the media, and believed there was going to be a problem.[39] He gave evidence that the purpose of the email was to “prompt” Mr Winter to “look at the – the appropriate legislation and provide the protections that [Mr Flori] thought [he] was entitled to”.[40]
[39]T1-17, lines 9-19.
[40]T1-17, lines 21-22.
Mr Stenner’s Evidence
Mr Stenner gave evidence that he recalled telephoning Mr Flori shortly after receiving the email from Mr Winter. Mr Stenner’s evidence was that Mr Flori “wasn’t very interested in, you know, the support I could provide him at the time”.[41] Inspector Stenner also made a diary entry which revealed:
“Spoke to Rick Flori on home number. He stated he did not want assistance and he did not think there was much we could do to assist him. Advised him that we could provide assistance and if he experiences any reprisal or needed support”.[42]
[41]T2-46, lines 14-29.
[42]Exhibit 12.
In a July 2015 court brief for the criminal proceedings concerning the offence of misconduct in relation to public office under s 92A of the Criminal Code 1899, Mr Winter specifically included the February 2010 letter as evidence supporting the charge.[43] Mr Winter thought the February 2010 letter could be used in the criminal proceedings to show what he thought was Mr Flori’s “tendency towards dishonesty”.[44]
[43]Exhibit 11, p 3.
[44]T2-12, lines 7-8.
Was There a Reprisal?
In accordance with s 42 of the PID Act, a reprisal is a tort and a person who takes a reprisal is liable in damages to any person who suffers detriment as a result. Section 40 of the PID Act states:
“40 Reprisal and grounds for reprisal
(1)A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that—
(a)the other person or someone else has made, or intends to make, a public interest disclosure; or
(b)the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.
(2)An attempt to cause detriment includes an attempt to induce a person to cause detriment.
(3)A contravention of subsection (1) is a reprisal or the taking of a reprisal.
(4)A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
(5)For the contravention mentioned in subsection (3) to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.”
The PID Act did not commence until 1 January 2011, which was after the February 2010 letter. However, s 74 of the PID Act provides that a PID made under the Whistleblowers Protection Act 1994 (“WPA”) is taken, from the commencement of the PID Act, to be a PID under the PID Act. I was therefore directed to the provisions of the WPA to identify a PID. Whether Mr Flori made a PID is to be assessed against the requirements of the WPA and not the PID Act. Schedule 6 of the WPA defined a PID as follows:
“public interest disclosure means a disclosure of information specified in sections 15 to 20 of the Act made to an appropriate entity and includes all information and help given by the discloser to an appropriate entity”.
The appropriate entity in this matter is the CMC.
Mr Flori relies on having disclosed information as specified in s 15 of the WPA. Relevantly, s 15 of the WPA provides:
“A public officer may make a public interest disclosure about someone else’s conduct if—
(a)the officer has information about the conduct; and
(b)the conduct is official misconduct.”
A police officer is a “public officer” for the purposes of the WPA.[45] There is no dispute that Mr Flori was a “public officer” as defined in the WPA.
[45]See s 2 and Sch 5 and 6.
Section 14 of the WPA relevantly provided:
“(2)A person has information about conduct or danger specified in sections 15 to 20 if the person honestly believes on reasonable grounds that the person has information that tends to show the conduct or danger.
…
(5)The information need not be in a form that would make it admissible evidence in a court proceeding.
Example—
The information may take the form of hearsay.”
Returning for the moment back to s 15 of the WPA, this section refers to both “conduct” and “misconduct”. Whilst the word “conduct” is not defined in the WPA, “official misconduct” is defined to have the same meaning as in the Crime and Misconduct Act 2001 (Qld) (“CM Act”). Relevantly the CM Act (as it was in force at February 2010) included the following provisions:
(a)section 15 provided that “official misconduct is conduct that could, if proved, be… a criminal offence” or “a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or was the holder of an appointment”.
(b)“conduct” by virtue of s 14(b) is conduct of the holder of an appointment (relevantly including a police officer) that involved “a breach of the trust placed in the person as the holder of the appointment” or “misuse of information on material acquired in or in connection with the performance of the persons functions as the holder of the appointment”. Section 14(b) of the CM Act stated:
“14 Definitions for div 2
In this division—
“conduct” means
…
(b)for a person who holds or held an appointment—conduct, or a conspiracy or attempt to engage in conduct, of or by the person that is or involves—
(i)the performance of the person’s functions or the exercise of the person’s powers, as the holder of the appointment, in a way that is not honest or is not impartial; or
(ii)a breach of the trust placed in the person as the holder of the appointment; or
(iii)a misuse of information or material acquired in or in connection with the performance of the person’s functions as the holder of the appointment, whether the misuse is for the person’s benefit or the benefit of someone else.”
I was referred by the parties to the decision of Flori v Winter (2019) 3 QR 22, which involved a hearing about a special question of construction concerning the WPA. The decision was not required to address whether Mr Flori had the requisite honest belief on reasonable grounds. There, the Court of Appeal (Fraser JA, with whom Buss AJA and Henry J agreed) held that the meaning of s 15 of the WPA, read together with s 14(2), “is that a public officer may make a public interest disclosure about what the public officer honestly believes, on reasonable grounds, is information that tends to show the official misconduct”.[46] The Court of Appeal decision is binding authority on the proper construction of ss 14 and 15 of the WPA, which held that, on proper construction of ss 14 and 15, a court must consider whether Mr Flori held an honest belief on reasonable grounds that he had information that tended to show that the other person’s conduct was “official misconduct” (as defined in the CM Act).[47] Fraser JA stated:
“The effect of ss 8(1) and 15, read with ss 14(1) and 14(2), is to authorise a public officer who has information about someone else’s ‘conduct’ to make a public interest disclosure in respect of that information if the public officer honestly believes, on reasonable grounds, that the public officer has information that tends to show that the other person’s ‘conduct’ is ‘official misconduct’.”
[46][12], [20] and [49].
[47][33].
It was highlighted to me on Mr Flori’s behalf that the background to the enactment of the WPA involved the Electoral and Administrative Review Commission’s Report on Protection of Whistleblowers, dated October 1991 (“the EARC report”).[48] The EARC report referred to what eventually became s 15 of the WPA and stated:
“This is basically an objective test requiring that the information disclosed be objectively capable of giving rise to an honest belief that the information provides evidence of a matter falling within the recommended categories of public interest disclosure. The test also imports a subjective element, that an honest belief …”[49]
[48]See generally Flori v Winter (2019) 3 QR 22, [37] ff.
[49]At [7.33].
Further, the principal object of the WPA in s 3 is to “promote the public interest by protecting persons who disclosed… unlawful, negligent or improper conduct affecting the public service”. In that context, it was submitted that the definition of public interest disclosure in Schedule 6 of the WPA ought to be beneficially construed and given the fullest scope that its language will reasonably allow.[50]
[50]See for example Paxus Services Limited v People Bank Pty Ltd (1990) 99 ALR 728, 733.
I therefore return back to consider whether the February 2010 letter was a public interest disclosure.
Belief Honestly Held on Reasonable Grounds?
It was submitted on Mr Flori’s behalf that the information Mr Flori had (and which was included in the February 2010 letter) tended to show that:
(a)[A] had engaged in a sexual act in a police vehicle in a public place – a potential criminal offence under s 227 of the Criminal Code.
(b)[A] had used a police vehicle for private purposes – a potential criminal offence under s 408A of the Criminal Code or s 135 of the Transport Operations (Road Use Management) Act 1995.
(c)[A] had been in dereliction of his duties as a police officer in spending time (in public places) with [B] instead of fulfilling his duties – a disciplinary breach that would have provided reasonable grounds for terminating [A]’s employment as a police officer.
I accept Mr Flori subjectively formed the belief that the information was suggestive of evidence of a matter falling within the realms of official misconduct. However, objectively, I am not persuaded that the belief was honestly held on reasonable grounds, nor would the conduct be demonstrative of official misconduct. Some of the paragraphs of the February 2010 letter describe conduct, whereas other paragraphs do not describe conduct and are instead in the nature of allegations of the belief of “Southport police” and the author’s opinion which purports to encompass the belief of other officers.[51] Further, not every type of “conduct” described in the February 2010 letter is capable of being “official misconduct” within the meaning of the CM Act. “Official misconduct” is “conduct” that could, if proved, be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is, or was, the holder of an appointment.[52] The other conduct, in my view, could not amount to “official misconduct”, because I am unable to see how a criminal offence or a disciplinary breach providing reasonable grounds for termination could be found. It therefore follows that it is not possible for Mr Flori to make a PID about the conduct described in those paragraphs of the February 2010 letter.
[51]See sixth paragraph of letter.
[52]As defined in s 14(b) of the CM Act.
The reference to the conduct concerning the oral sex at Red Rooster at Robina could, if proved, be a criminal offence. So much is so from the admission given on the defendants’ behalf in the pleadings, as well as the observations of the learned primary judge in Flori v Winter [2019] QSC 106, together with Fraser JA (with whom Buss AJ and Henry J agreed) in the appeal decision of Flori. That is because it was an indecent act in a place to which the public were permitted to have access. The offending was observed by two members of the public who were police officers, and the conduct involved using a police car apparently entrusted to the officer in the discharge of his duties as a senior police officer.[53]
[53]At [59].
In my assessment, the difficulty for Mr Flori is that, although he possessed second hand information which is permissible, none of the witnesses called at trial possessed such knowledge, or were aware or observed the alleged conduct. The conduct extended not only to that specific incident, but also other conduct which, in my view, falls short of ss 14(b) and 15 of the CM Act. In other words, the other conduct asserted in the February 2010 letter is not, in my view, “official misconduct”. This approach also informs my assessment as to whether, objectively, there was an honest belief that the information provided evidence of a matter falling within the recommended categories of a public interest disclosure. I have not been satisfied that there were reasonable grounds, in circumstances where witnesses were called at trial (whom Mr Flori attributed were his sources of information) and yet those witnesses (Mr Pearce and Mr McGrath) had no knowledge, or denied ever speaking or participating in any conversations, about the alleged conduct. There was no evidence, apart from Mr Flori’s own evidence, which I am not prepared to act upon in the absence of other independent supporting evidence, to demonstrate to the requisite standard, evidence of allegations said to amount to “official misconduct”. I am not inclined to act upon Mr Flori’s evidence on its own because, at trial, my impression of him was that many of his responses were overly self-serving, evasive, equivocal and at times, dismissive. For example, Mr Flori’s responses included the following:
(a)“It is a little disappointing that the officers that told me this information hadn’t reported it, but I felt fairly – very obliged to do what I had to do”.[54] (Emphasis added).
[54]T1-14, lines 25 and 26.
(b)“No, after the search warrant was executed, I was shifted to communications at Beenleigh. Unrequested.”[55] (Emphasis added).
[55]T1-16, lines 9 and 10.
(c)The following exchange between Mr Flori and his counsel:
“Were you asked questions about it?---Some questions, yes, some nine and a-half hours into the – into the interview.
And did you tell the investigators that you wrote the letter?---I did, yeah. Initially – I’d initially didn’t. I mean, in my mind, at the time, I thought I had protections there. I – it was anonymous. Complied with everything, I thought. I actually was conflicted because I felt that I didn’t have to, and they were pushing me for it, so I – I denied it initially, and then I said – I just gave in and said yes, I did. Which I did. I wrote – wrote the letter.”[56](Emphasis added).
[56]T1-16, lines 32-40.
(d)“Because I had – was reflecting on the [disciplinary] interview, and if you listen to the audio of the interview, it’s pretty disgraceful the attitude about that – that letter. The – they weren’t – they were not – put it nicely, they weren’t very happy I reported that official misconduct and particularly weren’t happy that I did it anonymously.”[57] (Emphasis added).
[57]T1-17, lines 9-13.
(e)Another exchange between Mr Flori and his counsel:
“Where did you go – or where were you sent after that?---Well, at some point, I was sent to the Southport watch-house by the chief superintendent, unrequested, unannounced.”[58] (Emphasis added).
[58]T1-18, lines 43-45.
(f)Immediately under cross-examination:
“Mr Flori, you gave some evidence about recalling participating in a disciplinary record of interview, and I think you said it went for about nine and a-half hours in a day?---Nine and a-half hours.
Or there - - -?---When I was asked about the letter it was like 10, 10 and a-half - - -
Sure?--- - - - or something like that.
And that took - - -?---I’m not sure.
Sorry?---I don’t know the exact time.
No, no. But it was a lengthy interview?---Yes.”[59]
(Emphasis added).[59]T1-21, lines 26-32.
(g)Another response in cross-examination:
“And again, I’m not trying to trip you up, and I can take you to the relevant parts, but on the occasions where the matter – that’s the interviewing process – was suspended or there was a break. Do you recall on occasions that Mr Winter would then give you the direction again and you would respond to the position that you were aware of the direction, but on each occasion that you weren’t going to answer the questions voluntarily, but you were answering the questions under protest and duress?---Yeah. I don’t recall that, but that’s most likely.”[60]
[60]T1-23, lines 36-42.
(h)The following cross-examination exchange:
“Because you were the - - -?---Because I thought I was protected, so I – I was at odds on the direction given to me and the Whistleblower Protection Act. So I actually thought I was protected, and my – and an anonymity associated with that. How can you think you could be protected by any sort of whistleblower protection when the author of the letter you’ve attributed is Craig Mcgrath?---Well, there’s a name there. I – I wasn’t certain at the time while writing that whether I actually listed all the names. That was just a further witness within the – within the context of the letter.
No name, no - - -?---Yes, yes, yes.
No. Mr Flori, listen to my question. …”[61]
[61]T1-25, lines 3-15.
(i)Another exchange:
“My question, though, is – and you can agree or disagree with it, but I suggest to you that when you sent the letter, which is dated the 21st of February 2010 with the name Mr Craig Mcgrath down the bottom of the letter, you had the intention of conveying to the CMC that Mr Mcgrath was the author of that letter?---Not necessarily, no. It was to assist investigators in an investigation, if they’d so choose – so chose, just like the multiple other names in the letter.” [62] (Emphasis added).
[62]T1-25, lines 33-38.
(j)And another:
“Mr Flori, aren’t you deliberately, I suggest to you, conveying that Mr Mcgrath, by putting the name at the bottom of a letter, is effectively the individual raising the issues – the complaints, the issues that are set out in that letter? That’s what you’re conveying?---No.
Well, what are you conveying?---I’m conveying this serious misconduct by these officers and giving sufficient information that I – that I was aware of, specific information that I honestly believed were acts of official misconduct that needed to be investigated - - -
But you did so - - -?--- - - - and needed to be looked at.
Sorry, I didn’t mean to cut you off. Sorry?---Needed to be looked at.
But you didn’t see fit to put your name at the bottom of the letter?---Yeah. My name – I actually could not contribute to the investigation. I had no direct evidence, direct information as in I saw this or saw that, whereas Mr Craig Mcgrath did.” [63] (Emphasis added).
[63]T1-26, lines 6-22.
(k)Mr Flori’s response to the following question:
“That was untruthful, wasn’t it?---That was protecting me.
…
So you told an untruthful response - - -?---In protect - - -
- - - to the question that is being asked - - -?---Yeah, in protection to my anonymity.
- - - by you of Inspector Johnson?---In protection of my anonymity. I mean, the result – the result of not trying to – protecting my anonymity is what’s happened to me over the last 11 years. And – so then my prediction of that has come true. Year after year, court case after court case to fight for justice. That was foreseen and foreseeable, and that’s why I skirted around information about the letter.”[64]
(Emphasis added).[64]T1-26, line 33 - T1-27, line 30.
(l)Another exchange:
“Now, I suggest to you that at no stage during the course of the interview did you give any information that Mr Mcgrath had been a source of the information that formed part of – or if all – of the contents of the letter of the 21st of February 2010?---Yeah, correct. If you listen to the audio, you’ll see that I started to and I was over-spoken by Kerry Johnson. Other than the aggression and anger between – between them towards me, I just sealed up. I was – I started to. I intended on giving all that source information, and I just shut up. And I’ve never been asked since.”[65]
(Emphasis added).[65]T1-28, lines 20-26.
(m)And another:
“And you gave evidence that he was boasting about the conduct in question, the sexual misconduct?---Yes.
What do you mean by “Mr Pearce was boasting about the conduct”?---Laughing and joking about it. Thought it was a joke.”[66]
[66]T1-30, lines 4 and 5.
(n)There was another exchange in cross-examination:
“You never sought a – that the interviewing process be halted or adjourned or have a short break because you thought you were being shut down or either Sergeant – Senior Sergeant Winter or Inspector Johnson were somehow being overbearing in their questioning towards you, did you?---No. Because after nine and a half hours, I just wanted it over in five seconds.
All right?---I just was destroyed. So I – I couldn’t think clearly. I just – nine and a half hours, I’d had enough. So didn’t offer anything more. And when – when you get that attitude from those investigating officers from [indistinct] to see about reporting official misconduct, you get the clear message it’s not to be done and that was not very happy about it, including Kerry Johnson saying about hearsay, you – “It was only hearsay”. Well, look at the Whistleblower Protection Act, 14(2), under it says:
The information can be hearsay.
It’s written in law.
You were asked questions about - - -?---His ignorance is beyond – beyond acceptable.”[67]
(Emphasis added).[67]T1-31, lines 5-24.
(o)In response to another question, Mr Flori retorted: “I’m not sure where this is going”.[68]
[68]T1-31, line 32.
(p)Another response: “I disagree. Listen to the audio, and you didn’t see the look on their faces, which I’ll never forget”.[69] The immediate exchange after this:
[69]T1-32, lines 45-46.
“So getting back to the question asked of you by Senior Sergeant Winter to explain the allegations of where you received the information from, you stated “via Bruce Pearce”, but you didn’t see fit to expand upon identifying another source as you say was Sellars?---Because I – I tried to start doing that but was shut down. Just being talked over and the aggression just shut me off. Not very good investigating technique. If he only waited, he would’ve had all the information, or if they re-interviewed me, perhaps they would’ve had all the information as well, particularly after my 25th of April letter.”[70]
(Emphasis added).[70]T1-33, lines 1-8.
(q)And another:
“See, I suggest to you, Mr Flori, that at no stage did Mr Pearce speak to other officers – a group of other officers in which he was boasting upon sexual misconduct by other officers. That conversation that you overheard just never occurred?---I expect all the witnesses that – will not have had a conversation with me, because they – failure to report the matter. They will not confirm it, but I can tell you that the information they didn’t tell me turned out to be true. I was able to – there’s police officers there I’ve never met. I – I just plucked it out – out of the sky? I don’t think so. It’s just unrealistic.”[71]
(Emphasis added).[71]T1-33, lines 29-36.
(r)Another exchange under cross-examination:
“You have just assumed – because you’ve got no direct evidence from Mcgrath, you have just assumed that Mcgrath has confronted [A] about the rumours that he and [B] were, whilst on-duty, engaged in sexual activities?---Really, I had no direct evidence of any of it and I didn’t need direct evidence of it – of it to make a public interests disclosure. So no, I didn’t have direct evidence. I didn’t see him. I didn’t get, you know, didn’t hear recorded conversations or anything. It was a collective – a collection of information that indicated certain things have happened and the investigation actually found it to be true. And even for the purpose of a public interest disclosure, it doesn’t even need to be true as long as I believed at the time, and I did believe it at the time. The Court of Appeal agreed.
Just getting back to my question, did you make the assumption – it’s a yes or no answer – that Mcgrath had confronted [A] about the rumours that [A] and [B] whilst on duty had or were engaging in sexual activities?---I guess that’s an assumption I made. Yeah.”[72]
(Emphasis added).[72]T1-37, lines 28-42.
(s)Another:
“It’s just a shame they didn’t report it
But ---? That’s all. That – that’s the disappointing bit ---
But, Mr ---? -------because it fell on me, and I’m suffering the consequences of it.”.[73][73]T1-38, lines 22-26.
(Emphasis added).
(t)Another exchange:
“You showed cause, Mr Flori, you know that, don’t you?---No, no, no. No, no. Well, my understanding is that they usually have a pre-determined outcome prior to giving those submissions. So – and that’s how the system works. An AC see doesn’t make a decision on – based on proper information in submissions. He usually – it’s already done up before they’ve even started it.
Okay. So - - -?---Based on such a – such an investigation report.
Okay. So you – your view, if a disciplinary notice is issued against an officer, it’s a foregone conclusion that these particulars that give rise for the misconduct will be substantiated?---Their opinion – their opinion is that they will be substantiated. Yes.
Right. Okay. And there’s never any room for a finding that a charge or charges weren’t unsubstantiated?---I don’t know if there’s never any room. I guess it depends on the – on the ethics of an Assistant Commissioner or whatever level it’s put at.
Okay?---I don’t know every officer in the service”.[74]
(Emphasis added).
[74]T1-41, lines 18-35.
(u)Another response:
“Well – and I suggest to you that Mr – Inspector Stenner, during the course of the conversation, you stated that you did not want assistance and did not think there was much that Inspector Stenner could do to assist you?---I don’t – I don’t remember a call, but it doesn’t surprise me that those words are there because the Internal Witness Support Unit can do nothing for you. They can’t. They’ve got no authority. They can make no decisions. They just refer off or do nothing. In my case they did nothing, essentially, other than write a couple of letters – emails to me. But I don’t remember having a conversation with him about it.” [75]
[75]T1-42, lines 30-37.
(Emphasis added).
My view is fortified where some two years after writing the February 2010 letter under the hand of someone else, Mr Flori sought whistle-blower protection in April 2012. I am not sure why he did not seek protection or immunity earlier if he held a genuine belief on reasonable grounds. One reason for that, no doubt, was because the February 2010 letter did not surface until 2012 following the CCTV footage. Mr Flori, however, thought not at the time of drafting the letter to even inform Mr McGrath that he was submitting a letter to the CMC purportedly under his hand. I have not been sufficiently persuaded that Mr Flori honestly believed, on reasonable grounds, that he possessed information that tended to show that the conduct was official misconduct.[76] It was not possible therefore for Mr Flori to have information and make a PID under s 15 of the WPA. It follows that his claim must be dismissed.
[76]See ss 14(2) and 15 of the WPA and Flori v Winter, [33].
Further, my assessment of Mr Flori’s evidence demonstrated that he had a suspicion, but I consider the suspicion insufficient to reasonably ground a belief, because, as stated in George v Rocket (1990) 170 CLR 104:
“the objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”.[77]
[77]Per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at pp 115 and 116.
The High Court distinguished between a “belief” and a “suspicion” and emphasised that both are different states of mind. As was relied upon by the defendants, the fact “which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief”. A belief is different to a mere suspicion. Here, a suspicion held by Mr Flori (rather than honest belief on reasonable grounds) will be insufficient to ground a PID.
It has been pleaded on Mr Flori’s behalf, that the information contained in the second to sixth paragraphs of the February 2010 letter was provided to him “by other officers” in the QPS who are not known,[78] but that he considered those unnamed officers to be reliable sources of information,[79] and the February 2010 letter “ended with the words Craig McGrath”, being one of Mr Flori’s sources of information about the conduct in the February 2010 letter.[80] The combined effect was that the February 2010 letter conveyed information that Mr Flori honestly believed, on reasonable grounds, that the persons identified in the letter may have engaged in official misconduct.[81] No reference is made in the pleading to police officer Mr Pearce, despite Mr Flori having identified Mr Pearce as a source of information contained in the February 2010 letter at the time of the disciplinary interview on 19 April 2012.[82]
[78]Sixth Amended Statement of Claim, [7(b)(i)].
[79]Sixth Amended Statement of Claim, [7(b)(ii)].
[80]Sixth Amended Statement of Claim, [7(c)].
[81]Sixth Amended Statement of Claim, [7(e)].
[82]Exhibit 10.
It is unsurprising then that the defendants focused on Mr Flori’s “sources” of information for the February 2010 letter, to militate against Mr Flori’s belief as honest and based on reasonable grounds. For instance, in evidence-in-chief, Mr Flori was asked who gave him the information derived from in the second part of the February 2010 letter, and he responded that he “heard some of that information vaguely from Bruce Pearce initially”.[83] He also said he “got detailed information from Nick Sellars from Coomera”.[84] An objection was made by the defendants, which I allowed, about this aspect of Mr Flori’s evidence given it had never been pleaded despite the defendants having sought particulars of the names of Mr Flori’s alleged sources. In evidence-in-chief, Mr Flori gave evidence about what information he recalled receiving from Mr Pearce. He said:
“so I overheard Bruce Pearce in Surfers Paradise station in the charging area. He was holding court, for a better term, talking to constables, boasting about the goings on, the misconduct, really, that [A] was – was doing in terms of rendezvousing with [B], getting sexual favours from her. He – he did – he thought it was a great joke”.[85]
[83]T1-10, lines 39-40.
[84]T1-10, lines 40-43.
[85]T1-10, line 44 to T1-11, line 2.
The aspect of “sexual favours” was further explained by Mr Flori as follows:
“head - head jobs behind – actually, I think he might have mentioned the – behind – he used to meet at the BP as well, I think, and behind a shopping centre at Coomera. He didn’t provide, like, witness names or anything, though”.[86]
[86]T1-11.
I find this aspect of Mr Flori’s evidence inadequate when considering whether the belief was honest and based on reasonable grounds (as opposed to a suspicion). For ease of reference, the second paragraph of the February 2010 letter stated:
“in late 2009 [A] was seen at Red Rooster at Robina by Sgt Sean Miles and Sen Const Bec Lee with [B] in the Gold Coast District Deputy Officer police car. It was obvious that [B] had her head in [A]’s lap giving him a head job”.
Under cross-examination, Mr Flori recalled overhearing Mr Pearce on the one occasion. He was uncertain as to when this occurred, how many constables to whom Mr Pearce was speaking to and was unable to recall Mr Pearce saying the names of any witnesses who viewed such conduct.[87] It is therefore unsurprising that the defendants have highlighted that Mr Flori gave no evidence about this alleged conduct at all, let alone that he overheard others referring to the conduct described in relevant paragraph of the February 2010 letter. Mr Flori gave no evidence of obtaining information about any “sexual favours” or [B] giving [A] a “head job” in a police car at Red Rooster at Robina. There is no evidence that Sergeant Sean Miles or Senior Constable Bec Lee had seen [A] and [B], let alone seen them at the Red Rooster at Robina engaged in the sex act in a police car. I accept these matters.
[87]See T1-29, 30 and 32.
Furthermore, I accept Mr Pearce’s evidence in cross-examination as follows:
“Do you recall if any other officers approached you with a suggestion that there was some sort of sexual relationship between Senior Sergeant [A] and Constable [B]?---No. It was – it was a bit odd. I understand there was some mentorship between Senior Sergeant [A] and Constable [B] – that I understood there was. I know they hung out quite a lot together, but I wasn’t advised of any actual sexual relationship.
Did you ever hear of any rumours to that effect, of a sexual element to that relationship?---Probably unsubstantiated rumours. I – I think people just thought it was a bit strange. [A] used to hang around [B], but he was very open about it. He would talk, you know, that he was – [B] was babysitting the kids, and – and that type of thing. So [A] was – [A] was very open about it.
Okay. But you did hear some unsubstantiated rumours about a sexual element?---Just when you see a couple of people hanging out together, there’s suspicion that there may be more in that relationship, but nothing – no – no – no particular incident that I could say that they were involved in anything more than a friendship or some sort of different sort of relationship.
Were you aware of gossip around the district to that effect that there was some sexual element between Senior Sergeant [A] and Constable [B]?---There was just gossip. People talked about their relationship, mainly.
And again, back at that time, late 2009/early 2010, sort of reporting suspicions about a sexual relationship of that nature: that’d be frowned upon, wouldn’t it?---Consensual adults having sex together?
Well, a sexual relationship between a senior sergeant and a constable within their sphere of leadership. Would that be the sort of thing that should be brought to management’s attention?---I don’t think if it’s, you know, occurring in the workplace. It’s – it’s their own business what they do after hours. But as far as I knew, there was just a – some sort of mentor relationship. I think it was some sort of official mentor relationship. From my minimal observation, she obviously looked up to [A] as a – as a police officer.
All right. So the gossip or the rumours that you were aware of didn’t include any suggestion that there was sexual relationship during work time?---No.”[88]
[88]T1-56 line 16 to T1-57, line 5.
Mr Flori did not put his name to the February 2010 letter because he was of the view that to do so, would have been “of no value because I couldn’t add anything, I didn’t see what [A] had done or [B], or both and didn’t know the witnesses…”.[89] He also said he “actually could not contribute to the investigation. I had no direct evidence, direct information as in I saw this or saw that, where as Mr Craig McGrath did”.[90]
[89]T1-14, lines 30-33.
[90]T1-26, lines 20-23.
As alluded, I am perplexed that Mr Flori did not inform Mr McGrath of the February 2010 letter prior to the time of its drafting, let alone sending it to the CMC, or indeed anytime in the aftermath when the CMC contacted Mr McGrath to make enquiry of the contents of the letter purportedly written by him. Whilst accepting that hearsay information is permissible for the purposes of a PID, the evidence led at trial by Mr Flori, causes me to doubt the veracity of the honesty of the belief, on reasonable grounds (as opposed to mere suspicion, indicative of official misconduct) because I am not satisfied the objective circumstances sufficiently point to the subject matter of the belief.[91]
[91]George v Rockett (1990) 170 CLR 104, 115-116.
I am not satisfied that Mr Flori received information from Mr Pearce or Mr McGrath, because neither witness agreed that they spoke to Mr Flori about such conduct, and I am not prepared to act on Mr Flori’s evidence on its own. It is also notable that, despite Mr Flori giving contrary evidence, Mr Pearce denied speaking to constables in the charging area and “holding court” about the conduct of [A] and [B]. Mr McGrath denied he was a source of information to Mr Flori.[92] Mr Flori has not demonstrated that there was an inclination of a belief in a reasonable mind derived from sources external to him as a consequence of the February 2010 letter. Despite what was submitted on Mr Flori’s behalf, I decline to find that there is ample evidence to support a finding of reasonable grounds for Mr Flori’s belief that he had information tending to show [A] engaged in relevant conduct. No witnesses were called on his behalf and Messrs Pearce and McGrath did not assist or advance Mr Flori’s position. Reliance was also placed on subsequent investigators forming a view to substantiate a charge that [A] “inappropriately associated with an off duty junior officer”,[93] but that is insufficient in my view to find reasonable grounds for Mr Flori’s belief that he had information tending to show [A] engaged in relevant conduct.
[92]T2-40, lines 21-25.
[93]Exhibit 13.
Mr Flori said in his evidence that he was confident that [A] was committing “a sexual crime” and was “asserting influence over a junior constable for sexual favours”.[94] He was asked in cross-examination about this issue and eventually conceded that he did not recall overhearing Mr Pearce boast in front of other constables that [A] had exerted influence over [B] in respect of sexual misconduct.[95] It is unsurprising that the defendants have submitted that Mr Flori’s purported claim is nothing more than unfounded speculation. Even allowing for permissible hearsay, I accept the defendants’ submission that the purported claim is nothing more than unfounded speculation. Had Mr Flori produced supporting evidence, then perhaps I may have formed a different view.
[94]T1-14, lines 20-23.
[95]T1-30, lines 17-20.
Also as highlighted to me, Mr Flori then claimed that [B] had sex with another Sergeant on the second floor of the Southport watchhouse on nightwork and had been told that by “Fiona Harvey”.[96] This information, though, never appeared in the February 2010 letter and is completely irrelevant to the allegations of conduct between [A] and [B]. Yet, Mr Flori was of the view that he “formed the opinion that [B] was susceptible to it, so she was vulnerable to it”. Again, I accept that this is nothing more than baseless speculation and it does not provide any further or separate basis for the conduct alleged by Mr Flori in the February 2010 letter.
[96]T1-30, lines 22-23.
I accept the submissions advanced on behalf of the defendants that the result is there is no evidence before me as to Mr Flori’s grounds or basis for alleging the conduct he described in the February 2010 letter. To the extent that Mr Flori gave evidence about sexual acts between [B] and [A], it did not relate to the conduct in the February 2010 letter, and he overheard it “vaguely” from Mr Pearce.[97] Mr Pearce of course denies that ever occurred.[98] I am therefore unable to conclude that Mr Flori had an honest belief, on reasonable grounds, of the conduct of [A] and [B] described in the second paragraph of the February 2010 letter was conduct that was official misconduct. The same applies for the other conduct described in the remaining paragraphs of the February 2010 letter. Indeed, even if that conduct could be conduct that is “official misconduct”, save for a smidgen that [A] and [B] were seen at Burleigh and wandering off to have a picnic, even if I accept that (but I am not prepared to do so), Mr Flori never gave evidence as to his basis for, or source of, information for the conduct alleged in third to sixth paragraphs of the February 2010 letter. In the end, I have decided that the February 2010 letter was not a PID.
[97]T1-10, line 40.
[98]See earlier in these reasons at [41].
Detriment?
Should I have erred in finding that the February 2010 letter was not a PID, I will now turn to the matter of detriment.
In accordance with s 40(1) of the PID Act, a person must not cause, or attempt or conspire to cause, detriment, because of or in the belief that, the other person has made or intends to make a PID.
Mr Flori has pleaded that Mr Winter and Mr Doyle:
(a)caused, or attempted to cause to him disadvantage or adverse treatment about his career as a police officer;
(b)damaged his reputation, including his professional reputation;
(c)attempted to induce Acting Assistant Commissioner Peter Crawford to cause detriment to him by approving disciplinary action (insofar as it relates to Mr Winter); and,
(d)attempted to induce Superintendent of Internal Investigations Branch to cause detriment to him by recommending that the matter be suitable for a disciplinary proceedings (for Mr Doyle).[99]
[99]Mr Flori had also claimed that the State of Queensland, through the QPS, is liable for the actions of Mr Winter and Mr Doyle.
First Reprisal – EBN Update
Insofar as the complaint against Mr Winter is concerned, Mr Flori has agitated that Mr Winter caused or attempted to cause detriment through the EBN Update. Mr Winter used that document to, inter alia, do three things:
(a)Mr Winter outlined selected, or what he viewed as salient, evidence and asserted that Mr Flori’s actions (including via the February 2010 letter) were “malicious towards the Gold Coast District Duty Officers who were promoted over” him.
(b)He recommended that “stand down action be considered” against Mr Flori.
(c)He recommended that a copy of the EBN Update be referred to the “Deputy Commissioner (Regional Operations) and the Assistant Commissioner, South-eastern Region”.
Mr Flori submitted that Mr Winter’s actions in preparing and submitting the EBN Update with the above inclusions was inherently an action that caused, or attempted to cause detriment to him because:
(a)The power to “stand down” a police officer appears in s 1.6 of the Police Service Administration Act1990. As a matter of law, a stand down order would have the effect of relieving Mr Flori of the powers and duties of a constable at common law or under any Act.[100] That is, an officer who is stood down retains the right to salary but suffers a “loss of his [or her] right to carry out certain duties”.[101] As such, the recommendation that stand down action be considered against Mr Flori involved “detriment” in the sense of potential disadvantage or adverse treatment in respect of his career or employment.
(b)The asserted conclusion of “malicious” conduct by Mr Flori, along with the recommendation for stand down action, also carried inherent adverse imputations about Mr Flori’s integrity as a police officer. Communication by Mr Winter of those matters to various senior officers was inherently damaging to Mr Flori’s professional reputation and therefore a “detriment” in that sense. Analogous to defamation, there is no need for witnesses to say they thought less of Mr Flori as a result of the EBN Update – the nature and extent of dissemination may permit some harm to reputation to be inferred.[102]
[100]Police Service Administration Act 1990, ss 6.1 and 6.4.
[101]Rucker v Stewart [2014] QCA 32, [15].
[102]See Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, [29]-[30].
It was highlighted that Mr Winter’s recommended stand down action against Mr Flori would clearly have involved disadvantage to him in his employment. Those objective factors demonstrate, it was submitted, that Mr Winter, through the EBN Update, caused or attempted to cause detriment to Mr Flori. Mr Winter did so intentionally because he intended to make the recommendation and intended that the recommendation be considered by more senior officers.
I reject those matters for a number of reasons. The first is that all Mr Winter did was merely make a recommendation. He was simply performing a requirement of his role. There was no recklessness in his actions. His recommendation was required to be considered by more senior officers. Mr Winter was required to submit the EBN Update (and indeed the Investigation Report) so that his superiors could determine whether further action was warranted. It was not a fait accompli. The EBN Update (and indeed Investigation Report) briefed the Deputy Commissioner with regard to an allegation of misconduct against Mr Flori, surrounding the release of the CCTV footage. I accept the evidence of Mr Winter that the recommendation placed in the EBN Update was based on the entirety of the investigation he performed.
I reach that view also in circumstances where the EBN Update was the same as the EBN, a document which was created on 16 March 2012 about “allegations of misconduct against [Mr Flori] surrounding the release of the arrest video”.[103] The EBN was prepared on the same day the search warrant was executed. It has been highlighted to me on behalf of the defendants, which I accept, that it follows that at the time Mr Winter wrote the EBN, he did not know Mr Flori wrote the February 2010 letter. The EBN Update, being an extension of the EBN, summarised the results of the forensic analysis of Mr Flori’s seized computers and the result of Mr Flori’s disciplinary interview. Mr Winter said in his evidence that the “whole purpose” of the EBN is mentioned in the first paragraph of that document and it “never actually changes when we update”.[104] He said the EBN was:
“[a] standard document, whenever I investigate any police officer for a criminal matter, I need to brief the deputy commissioners and the – and the commissioner about what I am doing and what it takes to form, and it takes the form of this document to brief them about the criminal matter I am investigating”.[105]
[103]Sixth Amended Statement of Claim, [17] and Second Further Amended Defence, [17].
[104]T2-10, lines 21-23.
[105]T2-3, line 41 to T2-4, line 3.
According to Mr Winter, the producing of an update to an EBN was “quite normal”.[106] The EBN Update was only the first of a number of updates that Mr Winter produced. The purpose of the EBN remained the same, that was to update senior officers about an allegation of misconduct surrounding the release of CCTV footage. Mr Winter explained that the reference to the February 2010 letter appearing in the EBN Update, was to identify to his superiors an inference of dishonesty, because the letter was not anonymous and it was “dishonestly signed or purported to be signed dishonestly by Craig McGrath … so because I’m alleging dishonesty offences of fraud and 92A of the Criminal Code, I have to put to the court or let the Commissioner know that any circumstances of dishonesty which could infer that he was dishonest with [the CCTV footage].”[107]
[106]T2-9, line 32.
[107]See for example T2-11 and T2-12.
Further, Mr Winter confirmed that he never treated the February 2010 letter as a PID and to his knowledge, no one else had ever classified it as a PID.[108] Had he known that the February 2010 letter was a PID, he would have sought advice about how to deal with it. He said the February 2010 letter was only relevant to the investigation because of its potential evidence of dishonesty and because Mr Flori had falsely attributed that letter to Mr McGrath.[109]
[108]T2-22.
[109]T2-20, lines 27-33.
Also prior to the 2012 investigation into the release of the CCTV footage, Mr Winter had no personal relationship or connection with Mr Flori. He had never met him, nor even heard his surname prior to the investigation. It is therefore highly unlikely that he was motivated to cause harm or detriment to Mr Flori. The reference in the EBN Update was simply one part of the summary of investigation and forensic analysis of Mr Flori’s computers.
The February 2010 letter was not, as was submitted by Mr Flori, plainly a substantial ground for the recommendations in the EBN Update. Rather, the February 2010 letter did not feature heavily or substantially at all for the EBN Update. Therefore, I do not conclude that Mr Winter attempted to cause detriment, or in fact did cause detriment, by producing the EBN Update.
Second Reprisal – Investigation Report
The same reasoning applies to Mr Winter’s Investigation Report such that I am not satisfied that there was an attempt by Mr Winter to cause detriment to Mr Flori or that Mr Winter caused detriment to Mr Flori.
Mr Flori has submitted that Mr Winter caused or attempted to cause him detriment through the Investigation Report. It was contended that by the Investigation Report, Mr Winter:
(a)Alleged dishonesty and a lack of integrity against Mr Flori, including on the basis of the February 2010 letter.[110]
(b)Recommended in favour of a disciplinary charge of untruthfulness against Mr Flori based on creating and sending the February 2010 letter to the CMC.[111]
(c)Recommended in favour of a disciplinary charge of lying to investigators based, in part, on Mr Flori’s interview answers about the February 2010 letter to the CMC.[112] Mr Winter recommended that those (and other) disciplinary charges were capable of being substantiated.[113] He recommended that the matter be referred to the CMC for review.[114]
[110]Exhibit 4, pp 29-30.
[111]Exhibit 4, p 38.
[112]Exhibit 4, pp 39-40.
[113]Exhibit 4, p 41.
[114]Exhibit 4, p41.
It was submitted by Mr Flori that whatever Mr Winter’s state of mind may have been, his action in submitting the Investigation Report with those allegations and recommendations inherently caused (or attempted to cause) senior officers to become aware of those matters, for those matters to be referred to the CMC, and for senior officers to consider taking disciplinary action against Mr Flori on the basis of the recommended charges. Mr Winter did so intentionally, because he intended to make the recommendations and intended that the recommendations be considered by more senior officers. Again, my view is that Mr Winter was simply doing his job. He simply made a recommendation with respect of those features. His recommendations could have been rejected by the senior officers. I therefore disagree with the proposition that it was inherently a detriment in respect to Mr Flori’s employment and professional reputation.
In his evidence, Mr Winter said:
“well, again, part of my duties is the investigating police for serious misconduct and – and crime: I have to report the full circumstances of that in an investigation report. It takes this – this is a standard format for that report, with an executive summary and the other – the other headings that are within that report. I explain just the circumstances and let them know what the evidence is. And, again, they just determine if – if or when or how they’re going to consider discipline actions; and I just – me relaying – relaying all the criminal evidence that I have. I explain to them, as well, my intentions with the – where the evidence sits, criminally.”[115]
[115]T2-17, lines 19-29.
Having considered the Investigation Report, my impression is that the reason for its preparation was not because of the February 2010 letter, or that Mr Flori sought to claim protection and a made a PID. There is no sufficient evidence for me, which I am prepared to accept or act upon, to find that when Mr Winter included a reference in the Investigation Report to the February 2010 letter, that he was motivated by the fact that Mr Flori had made a PID. The Investigation Report related to the investigation of the release of the CCTV footage to the media. The report is 41 pages in total. 19 witnesses were interviewed and summaries were made. The only major reference to the February 2010 letter is essentially contained under a heading titled “Statements by Rick Flori During Interviews Identified as Untruthful”. It records:
“Relating to [A]/McGrath letter
·When asked if he has ever written a letter to the CMC (annexure 13) concerning S/Sgt [A] and Craig McGraths name on the base as author, he replied, “It’s the first time I’ve seen it” (annexure 61, counter 02:53:10) “no I haven’t written a letter to the CMC” (annexure 61, counter 01:40:40 and 01:42:10). Later he admits to typing the letter himself on his Black Acer laptop.”[116]
[116]Exhibit 4, page 22.
At paragraph 7.30, referring to the February 2010 letter, the Investigation Report stated as follows:
“Allegation 4 - Untruthfulness other (278)
This complaint relates to Sergeant Flori creating a letter on his home computer, concerning misconduct by Senior Sergeant [A], and then dishonestly sending that letter under the hand of Senior Sergeant Craig McGrath to the CMC.”
Findings pertaining to allegation 4 were recorded. After considering a number of matters, it was concluded the act of submitting a complaint under the hand of another officer, without the knowledge of that officer, is untruthful and irresponsible.[117] It was said that this untruthfulness resulted in investigators not having the benefit of the informant’s knowledge, causing investigators to make additional enquiries. As a consequence, it reached the assessment that the allegation of “untruthfulness other (278)” was capable of being substantiated. In other words, it was capable of being proven. Moreover, it had the potential to be proven, but of course that did not necessarily lead to the ultimate result. In my view, at the time of the recommendation concerning this allegation was made, the end result remained to be seen.
[117]Exhibit 4, [7.35].
The Investigation Report contained another allegation against Mr Flori, namely “Allegation 5 - Lying to Officer Investigating Disciplinary Allegation (269).” It states:
“This complaint relates to Sergeant Flori lying to investigators, on multiple occasions during a disciplinary interview concerning his involvement with the email address [email protected], his subsequent dealings with the media concerning the misappropriated CCTV recording, and his letter forwarded anonymously to the CMC involving Senior Sergeant [A]”.
Allegation 5 is addressed at paragraphs [7.41] through to [7.45] of the Investigation Report. The February 2010 letter is one “lie”, among others, referred to in the Investigation Report. The other parts of the “lying” are also dealt with in Allegation 5.[118] At 7.51, it was stated:
“it is concluded Sergeant Flori has shown contempt for the discipline process concerning this matter and has maintained a consistently dishonest approach to his dealings with investigators, despite investigators possessing evidence that could be accepted as compelling in both criminal and civil jurisdictions. Sergeant Flori’s untruths have resulted in extensive enquiries being made with additional witnesses, mail.com in the USA, the Department of Attorney-General and overseas authorities”.
[118]At [7.38] – [7.40] and [7.46] – [7.50].
A conclusion was reached that “Allegation 5 - Lying to Officers Investigating Disciplinary Allegation” was capable of being substantiated. In other words, it was capable of being upheld, not necessarily that there was a finding that it was upheld. It was a simply another recommendation.
My assessment of the Investigation Report is that the limited references to the February 2010 letter reasonably served to establish that Mr Flori had been untruthful and that he had lied to investigating officers during the investigation. That was a relevant inclusion given the purposes of the Investigation Report so as to investigate allegations concerning alleged dishonesty offences committed by Mr Flori. It was not malicious. In the end, I am unable to see any detriment with respect to the recommendation, because it did not produce the ultimate or end result. Mr Flori’s wrongful act, the subject of the allegation related to his act of lying to investigators. It was only one aspect of a number. I am unable to conclude detriment as a consequence of what was asserted to be the second reprisal.
Third Reprisal – Referral Letter
It was submitted that the Referral Letter by Mr Doyle was an attempt to cause detriment because Mr Doyle “support[ed]” Mr Winters’ recommendations. In doing so, Mr Doyle essentially adopted and repeated both the reasoning and recommendations which appeared in the Investigation Report. It was contended that Mr Doyle did so intentionally because he intended to support the recommendations. It was asserted that Mr Doyle caused, or attempted to cause, detriment to Mr Flori as follows:
(a)disadvantage or adverse treatment about Mr Flori’s career as a police officer; and,
(b)damage to reputation, including his professional reputation.
Mr Doyle retired from the QPS in January 2014 after having attained the rank of Assistant Commissioner of Ethical Standard Command in September 2010. Mr Doyle indicated that he became aware of the investigation being conducted into the affairs involving Mr Flori “through the usual process of briefings from [his] staff at – from the Superintendent of Internal Investigations and the Chief Superintendent”.[119] Mr Doyle said that his letter of 25 September 2012 was “produced in a draft form for [him] to consider, and it was part of the investigation of – and the sending of the documents to the CMC. [His] staff, obviously, at the time, would’ve provided the documents to” him.[120] The draft was prepared by Mr Winter.
[119]T3-4, line 13.
[120]T3-4.
According to Mr Doyle, he did not amend or alter the draft prepared by Mr Winter and ultimately signed off on the letter, after having been satisfied with the material contained within the investigation file. He also gave evidence that in deciding to ultimately sign the letter and send it to the CMC, it was never his intention, in any way, to seek disadvantage to Mr Flori’s career as a police officer within the QPS.[121] He confirmed that he received a response from his letter from the CMC dated 11 October 2012.[122]
[121]T3-5.
[122]Exhibit 14.
In cross-examination, Mr Doyle said that he was not aware that Sergeant [A] was disciplined in relation to matters arising out of the February 2010 letter. Had he been aware that [A] had received a disciplinary sanction resulting from that complaint, he would not have directed his attention to whether the letter Mr Flori wrote had been subject to public interest disclosure obligations.[123]
[123]T3-8.
I accept Mr Doyle’s evidence about these matters and I am not satisfied that Mr Doyle caused or attempted to cause detriment to Mr Flori, or that he did so because Mr Flori had made a PID.
In the end, I find as follows:
(a)the February 2010 letter did not constitute a PID.
(b)Mr Winter (via the EBN update or the Investigation Report) did not cause or attempt to cause detriment to Mr Flori.
(c)Mr Doyle (via the Referral Letter) did not cause or attempt to cause detriment to Mr Flori.
Damages
Should I have erred in making any of the above findings sufficient to find that Mr Flori ought be entitled to damages, I will now consider the aspect of damage. In doing so, I proceed on having been satisfied of s 40(1) of the PID Act.
In accordance with s 42(1) of the PID Act, a person who takes reprisal is liable in damages. Further, s 42(2) ensures that relief beyond damages is also available. It provides that any “appropriate remedy that may be granted by a court for a tort, including exemplary damages, may be granted by a court for the taking of a reprisal”.
Any damages are to be assessed in tort.
Mr Flori has sought $30,000 for each reprisal. It was pleaded that he has suffered “emotional harm, anxiety and distress not recognising a psychological condition”. Additional awards have been sought for aggravated and exemplary damages.
Mr Flori’s evidence was that he resigned from the QPS in November 2017.[124] Prior to then, he was on long service leave for a period before applying in December 2015 for leave without pay, which was granted for one year.[125] He did not return to work.[126] I am prepared to infer that his feelings were hurt and that there was some distress as a consequence of producing the February 2010 letter. The extent of that is not as high as what was sought. However, for the purposes of the assessment of damages, I accept that:
(a)Mr Flori was confronted by Senior Sergeant [A] about the proposition that he was the author of the February 2010 letter after Mr Winter’s EBN Update was disseminated to a number of senior members of the police force.
(b)Mr Flori was moved away from his usual station to the Beenleigh Communications Centre and later moved to the Southport watchhouse, not upon his own initiative.
(c)The Investigation Report prepared by Mr Winter was distributed to a number of senior police officers and to the CMC, which in turn affected Mr Flori’s professional reputation.
(d)Disciplinary proceedings were commenced against Mr Flori in 2013, such proceedings including reference to, and reliance on the February 2010 letter.
(e)The criminal proceedings against Mr Flori (relating to the 2012 CCTV footage issue) continued to include reference to the February 2010 letter.
(f)By the time Mr Flori took leave without pay in late 2015, he felt that his relationship with his employer had “soured”, that “junior officers [were] ignoring [his] instructions” and “shunning” him, and it was “hard work mentally just to turn up everyday”.[127]
[124]T1-9, line 23.
[125]T1-20, lines 27-34.
[126]T1-20, lines 36-37.
[127]T1-20.
As has been highlighted to me on behalf of Mr Flori, it is difficult to put a dollar value on distress and reputational harm, but the law does not permit difficulty of assessment to prevent compensation. In Enzed Holdings Limited v Wynthea Pty Limited (1984) 4 FCR 450, the Federal Court stated:
“the principle is clear. If the Court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved. Furthermore, if actual damage is suffered, the award must be for more than nominal damages. We should add that we can see no reason why this principle should not apply in cases under the Trade Practices Act as well as in cases at common law.”[128]
[128]At [68].
I was also referred to a number of comparable decisions concerning the assessment of damages and the damages ordered for reputational harm and distress.[129]
[129]Including for example Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 and [2006] FCAFC 101.
In the circumstances, $10,000 is awarded for each reprisal in the event I found that a cause of action was established.
I am not inclined, despite what has been sought by Mr Flori, to award aggravated damages, because I am not satisfied that the actions taken by each of the defendants, including the State of Queensland as the relevant employer, were improper or unjustified in the circumstances. Nor am I satisfied that an award for exemplary damages should be made. Mr Flori’s grounds for exemplary damages were essentially that the defendants are police officers with important functions of upholding the law, the QPS failed to establish reasonable procedures for PIDs, and the need for deterrence. There was no sufficient evidence upon which to act about the alleged failure of the QPS to establish reasonable procedures for PIDs, let alone any failure by Mr Winter or anyone else to follow them. Reasonable and legitimate processes were undertaken with respect to disciplining Mr Flori with respect to his actions, only one of which related to the production of the February 2010 letter. I am not satisfied any level of reprehensibility has been demonstrated on the evidence. Therefore, neither exemplary nor aggravated damages should be awarded.
Conclusion and Orders
Having not found that the February 2010 letter constituted a PID and that Mr Winter and Mr Doyle caused, or attempted to cause, Mr Flori detriment in their actions, the claim is dismissed. I will hear from the parties as to costs.
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