Gee v Deputy Commissioner Ian Stewart

[2011] QCAT 402

CITATION: Gee v Deputy Commissioner Ian Stewart [2011] QCAT 402

PARTIES:	Miss Nicole Robyn Gee (Applicant/Appellant)
v
Deputy Commissioner Ian Stewart (Respondent)

APPLICATION NUMBER:   OCR259-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon James Thomas AM QC, Member

DELIVERED ON: 26 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.   The application is dismissed;

2.   The applicant’s written submissions be delivered on or before 16 September 2011;

3.   The respondent’s written submissions be delivered on or before 7 October 2011;

4.   The matter be set down for hearing on 30 November 2011 in Brisbane.

CATCHWORDS:

Police disciplinary charges – applicant seeking directions that respondent provide further documents and information – whether such documents and information were relevant to proper determination of the charges – prior opportunity to raise such matters – whether evidence "new" under s 219H of Crime and Misconduct Act 2001 – Power to interrogate decision maker in conduct of review

Queensland Civil and Administrative Tribunal Act 2009, s 21
Crime and Misconduct Commission Act 2001, s 219H

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 23 September 2010 the respondent found nine charges of misconduct substantiated against the applicant, and ordered that she be dismissed from the police service.

1. The applicant, Sergeant Nicole Gee, then brought proceedings in the QCAT, seeking review of the decisions.

1. Sergeant Gee will be referred to as “the applicant” and the respondent, Deputy Commissioner Stewart as “the decision maker”.

1. The present application is that the decision maker provide further documents and information to the Tribunal before the applicant presents her final written submissions.

1. It has been agreed that this matter be determined on the papers.

The charges

1. The respondent was charged with nine matters of misconduct, covering a wide variety of behaviour.  The charges are:

Matter One
That between the 28^th day of February 2008 and the 24^th day of January 2009 at Mt Isa or elsewhere your conduct shows unfitness to be or continue as an officer in that you:

(a)dishonestly applied to your own use, or to the use of another person, a ‘Trailblaza’ portable camping fridge donated to the Mount Isa Police Citizens Youth Club for that club’s assistance.

Matter Two
That on the 16^th day of December 2008 at Brisbane your conduct was improper in that you:

(a)were untruthful to Inspector Raymond Rohweder during your disciplinary interview.

Matter Three
That on the 23^rd day of April 2009 at Rockhampton your conduct was improper in that you:

(a)were untruthful to Inspector Raymond Rohweder and Inspector David Hickey during your disciplinary interview.

Matter Four
That between the 1^st day of July 2007 and the 17^th day of April 2008 at Mt Isa elsewhere your conduct shows unfitness to be or continue as an officer in that you:

(a)dishonestly applied to your own use, or to the use of other persons, a number of wrist bands, the property of the Queensland Police Union of Employees.

Matter Five
That between the 14^th day of April 2008 and the 10^th day of June 2008 at Mt Isa or elsewhere your conduct shows unfitness to be or continue as an officer in that you:

(a)dishonestly applied to your own use, or to the use of other persons, one-thousand and five dollars ($1005), the property of the Mt Isa Police Citizens Youth Club.

Matter Six
That between the 10^th day of December 2007 and the 20^th day of December 2007 at Mt Isa or elsewhere your conduct shows unfitness to be or continue as an officer in that you:

(a)dishonestly applied to your own use, or for the use of other persons, nine-hundred and ninety seven dollars and either cents ($997.80) the property of the Mt Isa Police Citizens Youth Club.

Matter Seven
That between the 10^th day of December 2007 and the 15^th day of December 2007 at Doomadgee or elsewhere your conduct was improper in that you:

(a)transported twenty cartons of alcohol into a community subject to an Alcohol Management Plan in a manner specifically designed to circumvent alcohol restrictions.

Matter Eight
That between the 3^rd day of April 2008 and the 22^nd day of April 2008 at Mt Isa or elsewhere your conduct was improper in that you:

(a)knowingly provided false and misleading information in your application for an advertised position.

Matter Nine
That between the 31^st day of March 2007 and the 1^st day of March 2008 at Mt Isa your conduct was unbecoming an officer in that you:

(a)within the workplace sexually harassed AB[1], an employee under your direct supervision, or formerly under your direction supervision.

[1]           Name omitted in these reasons.

Legal background

1. Jurisdiction to conduct the present review is conferred by the Crime and Misconduct Act 2001 (“the CMC Act”), and in particular by sections 219G and 219BA(1) of that Act.

1. The present application seeks “material”, “information” and “documents” relating to eight areas of subject matter. It is brought under section 21 of the QCAT Act which provides as follows:

21 Decision-maker must help tribunal

1. In a proceeding for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the tribunal so that it can make its decision on the review.

1. Without limiting subsection (1), the decision-maker must provide the following to the tribunal within a reasonable period of not more than 28 days after the decision-maker is given a copy of the application for the review under section 37—

   (a) a written statement of the reasons for the decision;

   (b) any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision.

2. If the tribunal considers there are additional documents or things in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the reviewable decision, the tribunal may, by written notice, require the decision-maker to provide the documents or things

   ….

3. A requirement under this section that the decision-maker give the tribunal information or a document or other thing applies despite any provision in an Act prohibiting or restricting the disclosure of the information or the information contained in the document or thing.

1. Notwithstanding the breadth of section 21 of the QCAT Act, the dominant provision governing the present application is section 219H of the CMC Act. The application seeks to adduce evidence that was not given in the original proceeding. Section 219H states:

219H Conduct of proceedings relating to reviewable decisions

1. A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).

1. However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—

   (a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or

   (b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.

2. If QCAT gives leave under subsection (2), the review is—

   (a)    by way of rehearing on the original evidence; and

   (b)    on the new evidence adduced.

[10] The making of an order such as that sought by the applicant is a discretionary power, to be exercised within the framework of section 219H(2). I have previously mentioned the nature of that power in CMC v Barnett and Eaton [2011] QCAT 161.

The documents and information now sought

[11]  These were specified in the applicant’s letter to the Tribunal dated 31 March 2011 which repeated demands that she had made of the police department on 16 March 2011 which had been refused.  The letter of 31 March 2011 is the basis of the present application.  It specifies eight categories of documents and information under various dot points.  They are set out here with numbers in order to facilitate later reference to them:

Issue

1. All material relating to the sexual harassment complaint recorded against me on 14 May 2010 (ESC file 10/1260).  This complain was recorded on my service history profile at page 756 in Part A of the material.  The details of this complaint have never been brought to my attention and appear to be highly relevant to my defence of matter 9.

1. The list of material that was seized and removed from the Mount Isa PCYC by Senior Sergeant Poole, Mr Parnell and/or police officers on behalf of ESC on or about the 16^th of May 2008 and confirmation of the date and time any material was so seized and removed.  (The removal of material by Poole and Parnell is mentioned at page 81 of Part B of the documents but does not disclose what that material was).

1. Copy of original Compass complaints in relation to all matters.

1. The complainants’ statements and crime reports made by the members of QPCYWA who were duly authorised to make complaints on behalf of the company in relation to matters 1, 5 and 6.

1. Any information or evidence from the QPCYWA that indicates I was not allowed to use the fridge the subject of matter 1.

1. Evidence of when the complaint about the fridge, the subject of charge 1, was first made to the QPS.

1. Details of any complaint from QPUE in relation to matter 4.

1. Information as to whether the investigation into Inspector Rohweder improperly releasing information to Troy Schmidt at the Police Union in relation to me being suspended from duty on 12 June 2009, has been finalised or if not, when it is likely to be finalised.  The respondent (page 418 of Part A) referred to this investigation in his consideration of matter 3 but declined to make further comments while the matter remains unfinalised.  Almost 6 months have passed since the respondent made his findings and it is likely that the investigation into Rohweder has now been finalised and the findings in that investigation may support my defence of matter 3.

[12]  To place the matter in context, following her application for review, a standard direction was made requiring the decision maker to provide relevant documents, and there was a further direction in the compulsory conference of 8 March 2011 in relation to the provision of the material in support of the decision.

[13]  Despite an initial delay, all documents and evidence that were before the decision maker, and a full record of all of the disciplinary proceedings, have been duly provided to the applicant.

[14]  They comprise over 3,000 pages.

[15]  However on 16 March 2011 the applicant asked the respondent for still more documents, and this request was declined.  She thereupon wrote to the Tribunal complaining of difficulty in preparing her written submissions  unless and until she obtains the information required concerning the eight issues which have been set out above.

[16]  Following a further direction from the Tribunal, the applicant has provided a nine page (single spaced) submission seeking to justify the eight requests.

Discussion

[17] Requests numbers (i), (ii), (iii), (iv), (vi) and (vii) appear to be requests for documents, as the references are to “material”, “copy of original complaints”, “statements”, “evidence”, and “details of any complaint”. Category (v) requests “any information or evidence”, and category (viii) explicitly asks questions about an investigation into the investigator Inspector Rohweder. These, and, arguably, category (vii), are a form of interrogation and may be compared with interrogatories. There is no objection in principle to directing a decision maker to provide relevant information that might assist the Tribunal to conduct a proper review. The Tribunal’s powers are to some extent inquisitorial, and such a direction falls within the powers given by section 21, provided of course there is good reason for making such a direction.

[18] The main consideration in such an exercise is relevance. Further, with regard to section 219H of the CMC Act, the question of prior opportunity to raise such matters is a relevant factor.

[19]  The applicant was legally represented at material times, though it seems that on occasions she has chosen to prepare the submissions herself.  Perusal of the extensive material shows that there was full opportunity to challenge evidence and to raise any issue or complaint that she wished to make.

[20]  The original direction requiring the applicant to attend a disciplinary hearing was given on 18 December 2009.  At that time all material that was before the decision maker was given to the applicant.

[21]  A rather tortuous process ensued.  The hearing proceeded on 23 February 2010.  Her written submissions (68 pages, single spaced) were addressed to the evidence with which she had been supplied, and issues of the present kind were not directly raised.  At page 3,020 of the record, following the written submissions and further oral submissions, she was asked whether there was anything else she wanted to say, and replied in the negative.  She was again asked whether there was any further comment she wished to make and again declined.

[22]  The only reservation at that point was that the decision maker undertook to consider matters raised by her and her solicitor in letters sent shortly before the hearing.

[23]  On 1 April 2010, the decision maker wrote to the applicant’s solicitors and supplied details of further investigations that had been made following the requests in those letters.  It is obvious that considerable investigation and searching took place in an attempt to locate the documents or information mentioned by the applicant, and that it was responsive to that request.  The decision maker invited the applicant to make further submissions. 

[24]  A few weeks later further submissions were made (38 pages single spacing) along with some attachments.  The issues raised in those further submissions concern such matters as the date of commencement of her residence in Rockhampton; circumstances of sick leave, recreation leave and extended absence on long service leave; residential records; and various submissions under each of the nine charges.  One such issue was whether or not a loans register of the PCYC existed.  The applicant asserts that it existed, while on behalf of the respondent it is contended that despite extensive searching none has been able to be found, and that there is a deal of evidence suggesting that such documents never existed.  There is no good reason to think that any further evidence on this issue can be obtained.

[25]  On 14 July 2010 the decision maker gave notice of intention to make an amendment to charge nine.  This was followed by further submissions from the applicant concerning that charge (3 pages). 

[26]  On 3 September 2010, the decision maker heard another disciplinary matter involving Sergeant Kennedy, a person with whom the applicant had had contact at material times, and against whom some charges similar to those in the present matter were brought.  Further submissions were then sent to the decision maker by the applicant’s solicitors, apparently adapting some of the points that had been made on Sergeant Kennedy’s behalf in his matter, and also attaching further statutory declarations and evidence which the decision maker was asked to consider.

[27]  Some correspondence then followed concerning the issue of sanction, and the applicant’s solicitor declined to present any submissions on that issue unless and until the decision maker’s findings on substantiation were known.  On 16 September 2010 the decision maker sent his draft findings, and gave notice of some further intended amendments.  The applicant’s service profile was also provided to her, presumably because it might be relevant on the question of sanction.

[28]  Finally the hearing was resumed on 23 September 2010, on which occasion the decision maker found all charges substantiated and dismissed the applicant from the police service. 

Issue one – material relating to the sexual harassment complaint recorded against me on 14 May 2010

[29]  This complaint is mentioned in the service profile which was produced when the draft decision was sent to the applicant, upon which the issue of sanction became relevant.  It contains an entry showing that such a complaint was made on 14 May 2010, and that following investigation no further action was taken because it was “unsubstantiated”. 

[30]  In those circumstances such a matter (an unsubstantiated complaint) is utterly irrelevant on the question of penalty or sanction.  However the applicant contends the allegations in that complaint are “strikingly similar” to the sexual harassment complaint in the present proceedings (i.e. charge nine).  The submissions simply, and perhaps unwisely, focus upon details of a completely irrelevant episode.

[31]  Her submission proceeds – “I seek access to the document to determine who the complainant is, what the specific allegations were, when the conduct was alleged to have occurred, who classified it as misconduct, who investigated the complaint, what statements were gathered and most importantly why that complaint was unsubstantiated”.  The submission then goes on in argumentative fashion, but it is pointless to recount it here.  She adds “I expect access to the document will greatly assist my defence of the matter and be highly relevant to the review”.

[32]  In my opinion such a document, and such information and interrogatories as the applicant suggests have no relevance whatever, and there is no merit in this request for “material”.

Issue two – material allegedly seized and removed from the PCYC by Police and Investigators

[33]  This matter seems already to have been adequately litigated.  Such material as was obtained by Poole, Parnell or any other investigator of this area of conduct was identified in their statements, and was in evidence during the disciplinary hearing.  For example, Parnell was subjected to several lengthy interviews, and there was full opportunity to challenge him or Poole on such matters, and to ask for further enquiry or even cross examination; or to suggest that further documents had been obtained and suppressed.

[34]  The applicant’s contention is that there were additional materials which have somehow disappeared.  I have read the statements and reports of these witnesses and do not think that it affords reason to think that there is anything in the possession of the police department that has not already been produced. 

Issue three – “original compass complaints”

[35]  Compass is the computerised system of the police service.  These details were not requested during the disciplinary hearing.  There seems to be an assumption that there were written complaints, but whatever the origin of the complaints, they have been superseded by the investigation and the evidence produced by it.  The identification of complainants may afford an opportunity for recrimination, and there is no good reason to require such information to be provided.  The applicant contends that it would be relevant to penalty.  I reject that submission.

Issue four – Complainants’ statements and crime reports by QPCYWA

[36]  This is a fishing expedition, and does not have any relevance to the charges.  The applicant concludes this submission with “I am hesitant to rely on the word of police that a criminal complaint was made by the CEO, and in the absence of any such record of complaint, my defence of the matter will be substantially strengthened.”  She is entitled to make that submission to the review.  There was opportunity to have pursued this point earlier.  I decline to direct that complainants’ statements (if any) and crime reports (if any) be produced at this stage.

Issue five – any information or evidence from the QPCYWA that indicates that I was not allowed to use the fridge the subject of matter one.

[37]  This is purely argumentative.  The issue has been adequately ventilated already.  Again the applicant indicates that she will “rely on the absence of any such material to further strengthen my case”.  She is entitled to do so, but there is no reason to authorise a further search for evidence.

Issue six – evidence of when the complaint about the fridge.. was first made to the QPS

[38]  Once again this has been litigated, and the applicant may make similar arguments on the review.  The applicant’s complaint is based upon her scepticism that the fridge was the subject of a criminal complaint.  The true issue is whether there was evidence to substantiate her actions in relation to the fridge.

Issue seven – details of any complaint from QPUE in relation to matter four

[39]  Whether QPUE made a complaint or not is irrelevant, the issue is whether the evidence substantiates the charge.

Issue eight – information concerning Inspector Rohweder “improperly releasing information to Troy Schmidt”

[40]  There is evidence to suggest that Inspector Rohweder may have advised the Police Union solicitor of the expected outcome of the proceedings in order to provide the applicant with the option of resigning before dismissal.  It is difficult to see what bearing this could possibly have on any of the issues that arise in this litigation.

Conclusion

[41] The application seeks to adduce evidence that was not given in the original proceeding. It cannot succeed unless the Tribunal is persuaded that “new evidence” ought to be allowed under section 219H of the CMC Act. There is considerable doubt with respect to a number of requests as to whether such material actually exists. But in any event for the above reasons there is no sufficient relevancy in any of the requests to justify the prolongation of this already protracted litigation.

[42]  The review should proceed on the material which has already been provided.

Directions

[43]  The applicant should provide any written submissions on which she wishes to rely without further delay.  I shall direct that her submissions be delivered on or before 16 September, and that the respondent’s submissions be delivered on or before 7 October, and that the matter be set down to hearing on 30 November 2011.

Orders

1. The application is dismissed;

1. The applicant’s written submissions be delivered on or before 16 September 2011;

1. The respondent’s written submissions be delivered on or before 7 October 2011;

1. The matter be set down for hearing on 30 November 2011 in Brisbane.