Harvie v Commissioner Ian Stewart
[2014] QCAT 388
| CITATION: | Harvie v Commissioner Ian Stewart [2014] QCAT 388 |
| PARTIES: | Paul William Harvie (Applicant) |
| v | |
| Commissioner Ian Stewart (Respondent) |
| APPLICATION NUMBER: | OCR046-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 22 July and 1 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver Member Gordon |
| DELIVERED ON: | 6 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent’s decision in respect of Matter 1 is confirmed. 2. The respondent’s decision in respect of Matter 6 is set aside and instead there be a decision that the matter is not substantiated. 3. The respondent’s decision in respect of Matter 7 is set aside and instead there be a decision that the matter is not substantiated. 4. The sanction of dismissal imposed by the respondent on 21 February 2014 is set aside. 5. In lieu thereof, the applicant is suspended from the Queensland Police Service from 21 February 2014 to 21 May 2014 inclusive. |
| CATCHWORDS: | POLICE DISCIPLINE – CONFLICT OF INTEREST – POSITION OF INFLUENCE – where the applicant took a complaint about domestic violence from an aggrieved person – where the applicant investigated the complaint and applied for a temporary domestic violence protection order against the aggrieved’s estranged husband – where within days of taking the complaint the applicant entered into a personal relationship with the aggrieved but continued as applicant in the domestic violence proceedings – whether the conduct of the applicant in entering into the relationship while the proceedings continued was improper and therefore misconduct – where subsequently the applicant allegedly harassed and intimidated the estranged husband by intercepting him for the purposes of a random breath test – whether the applicant was untruthful in a directed police interview – where the charges against the applicant were substantiated – where applicant was dismissed from the Queensland Police Service – review by the Tribunal POLICE DISCIPLINE - MISCONDUCT – SANCTION – MITIGATION – where applicant formed a relationship with an aggrieved person – appropriate sanction – where necessary to take mitigating factors into account – factors include: circumstances of the misconduct; financial loss; service record; delay and knowledge of superiors. Crime and Corruption Act 2001 (Qld) s 219BA, schedule 2 Aldrich v Ross [2001] 2 Qd R 235 Victoria v Macedonian Teachers’ Association of Victoria Inc. [1999] FCA 1287 Kennedy v Deptuty Commissioner Ian Stewart [2012] QCAT 66 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Zillman of counsel, instructed by Gilshenan and Luton for the applicant. |
| RESPONDENT: | Mr McLeod of counsel, instructed by the Queensland Police Service solicitor for the respondent. |
REASONS FOR DECISION
On 21 February 2014, Mr Harvie was dismissed from the Queensland Police Service from his position as Senior Constable. He had been police officer for some 13 years having joined the Service in November 2001. He was dismissed because in June 2010 he developed a relationship with an aggrieved person, then WBE (now HB), who had made a complaint to him when he was on duty at the Broadbeach Police Station about the conduct of her estranged husband, WBR. The complaint resulted in an application to the court for a domestic violence protection order against WBR. A relationship quickly developed between Mr Harvie and the aggrieved after that initial meeting to the point where they are now married and have a child from the union.
The above circumstances, and others, gave rise to a disciplinary charges of misconduct against Mr Harvie, the circumstance of which are briefly set out here:
Matter 1
That between 3 June 2010 and 29 March 2011 your conduct was improper in that you whilst proceedings with respect to the application for a domestic violence protection order were yet to be determined inappropriately engaged in an intimate relationship with the aggrieved person.
Over a year later on 18 August 2011, Mr Harvie was on duty in a marked police vehicle with another officer. They stopped a vehicle being driven by WBR. The officer with Mr Harvie required WBR to undertake a random breath test and provide his licence details. It was alleged against Mr Harvie that he had recognised WBR’s vehicle and so the interception was deliberate. This became a disciplinary charge of misconduct in these terms:-
Matter 6
That on the 18 August 2011 at Bundall whilst on duty your conduct was improper in that you: caused Constable MM to intercept a vehicle driven by WBR with the intention of intimidating or harassing WBR.
Over five months later on 30 January 2012, Mr Harvie was interviewed about the events on 18 August 2011. In the interview, he denied being aware that WBR was driving the vehicle which was intercepted. He also explained that he pointed out to his fellow constable that the front bumper bar of the vehicle was hanging down which explained why the vehicle had been stopped. What Mr Harvie said was not accepted and became a further disciplinary charge of misconduct in these terms:-
Matter 7
That on 30 January 2012 your (conduct) was improper in that you: were untruthful to Senior Sergeant MU and Acting Senior Sergeant ME during a directed discipline interview.
The Commissioner decided that these three matters were substantiated. There were four other matters which the Commissioner found not to be substantiated.
The Application for Review
Mr Harvie has applied to the Tribunal to review the Commissioner’s decision as to whether the charges against him are substantiated and also in relation to the sanction imposed.
The decision is a “reviewable decision” within the definition of those words in s 219BA of the Crime and Corruption Act 2001 (formerly the Crime and Misconduct Act 2001).[1]
[1]The Commissioner’s finding was for “misconduct” which since 1 July 2014 is within the definition of “corruption” in the Crime and Corruption Act 2001 (Qld).
Under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the function of the Tribunal on a review application is to produce the correct and preferable decision by way of a rehearing on the merits. In doing so, we remind ourselves that it is also appropriate in coming to the correct and preferable decision to give considerable weight to the view of the Commissioner about what is needed for the maintenance of internal discipline given his expertise in the administration of the police service.[2]
[2]Aldrich v Ross [2001] 2 Qd R 235 at [43] and [45]; also Flegg v Crime and Misconduct and Anor [2013] QCA 376 at [16].
The purpose of police disciplinary proceedings is set out in Regulation 3 of the Police Service (Discipline) Regulations 1990 (Qld), which sets out the objects of the regulations, as follows:
(a)provide for a system of guiding, correcting, chastising and disciplining subordinate officers;
(b)ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as—
(i)to protect the public; and
(ii)to uphold ethical standards within the Queensland Police Service; and
(iii)to promote and maintain public confidence in the Queensland Police Service.
It has also been observed that purpose of police discipline is not punishment but rather to protect the public, maintain proper standards and protect the reputation of the service.[3]
[3]Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597.
In Police Service Board v Morris[4] the High Court said:-
The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.
[4](1985) 156 CLR 397 at 412.
For the charges to be substantiated the Tribunal must be satisfied to the requisite standard having regard to the test in Briginshaw v Briginshaw. This requires that the decision-maker must be ‘reasonably satisfied’, or ‘feel an actual persuasion’ or feel ‘comfortably satisfied’ they have reached a correct and just conclusion[5]. This is not a third standard of proof,[6] but means that a decision maker must proceed with caution at arriving at a state of satisfaction because of the seriousness of the allegations made[7].
[5]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
[6]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors [1992] HCA 66 at [2].
[7]Full Court of the Federal Court in Victoria v Macedonian Teachers’ Association of Victoria Inc. [1999] FCA 1287 at [15].
The Respondents conclusions
With respect to sanction, the Commissioner decided that dismissal was the only course open to him. He had regard to Mr Harvie’s previous disciplinary record, the purpose of discipline in the service, to a decision of the former Misconduct Tribunal in similar circumstances and to the police officer’s oath to serve without favour or affection, malice or ill-will. The Commissioner recognised that police officers are only human and make mistakes from time to time but he found that Mr Harvie’s conduct in forming a relationship with the aggrieved whilst investigating her complaint was a serious demonstration of conflict of interest. The Commissioner also concluded that Mr Harvie had attempted to cover up an intentional interception of WBR’s vehicle at the interview, and had continued this pretence into the disciplinary hearing. His failure to respond honestly when questioned by his superiors was disgraceful and unacceptable. He also showed no real insight into the conflict of interest issue until the last minute when it was apparent that dismissal would be a likely outcome: because of this, the Commissioner was not confident that Mr Harvie genuinely accepted responsibility for his conduct.
With respect to the appropriate sanction to be imposed, the Commissioner said he would have considered a demotion as an appropriate sanction if Matter 1 had stood alone. However, the further conduct of causing an interception of WBR and the untruthfulness in the interviews meant that no sanction other than dismissal from the service would satisfy the purpose of discipline.
Is the charge in Matter 1 flawed?
It was submitted by Mr Zillman on Mr Harvie’s behalf in the hearing before us that the charge of misconduct in Matter 1 was so imprecise and “impermissibly wide” that it was not capable of being answered. It was submitted that the charge spans the dates between 3 June 2010 and 29 March 2011 and Mr Harvie did not know at which point in time between those dates he had to answer the allegation of misconduct. Because of this, it was impossible for Mr Harvie to address the myriad of possible scenarios.
Further, it was said that the precise behaviour alleged against Mr Harvie was not particularised in the charge and was unclear before the Commissioner and is still unclear in the proceedings before the Tribunal. It was submitted that the improper conduct was alleged to be that whilst proceedings for domestic violence protection were continuing he “inappropriately engaged” in a relationship with the aggrieved, when exactly what was inappropriate was not explained. It is submitted that it could have a number of meanings and Mr Harvie did not know which was being relied on: the possible meanings being:-
(a) without informing a superior officer; and/or
(b) continuing in the relationship; and/or
(c) doing some action involving an actual conflict of interest; and/or
(d) doing some action in circumstances where there is a perceived conflict of interest; and/or
(e) something else?
In this context, the definition of “misconduct” in s 1.4 of the Police Service Administration Act 1990 is that it means conduct that:-
(a) is disgraceful, improper or unbecoming as an officer; or
(b) shows unfitness to be or continue as an officer; or
(c) does not meet the standard of conduct the community reasonably expects of a police officer.[8]
[8]The definition of “police misconduct” in schedule 2 of the Crime and Corruption Act 2001 (Qld) is in the same terms.
The charge against Mr Harvie was conduct described as “improper” and therefore under the first limb of this definition. There is no further definition of “improper” in the legislation.
Further and better particulars of the charge against Mr Harvie were provided to him in bullet point form as follows:-
· while on duty on the 30th day of May 2010 were tasked to investigate a complaint involving allegations of domestic violence;
· attended the front counter of Broadbeach police station and spoke with WBE who made allegations against her estranged husband WBR;
· detained WBR and transported him to Southport Watchhouse;
· obtained a temporary protection order under the provisions of the Domestic and Family Protection Act 1989 on the 31st day of May 2010 prohibiting the respondent, WBR, from having any contact with or approaching within 40 metres of the aggrieved, WBE;
· made application for a protection order under the Domestic and Family Protection Act 1989 in the same terms and conditions as the temporary protection order;
· investigated the allegations and took statements from witnesses in support of the application for the protection order; and
· commenced an intimate relationship with WBE on or about the 4th day of June 2010 and commenced cohabiting with WBE in September 2010, prior to the application for a domestic violence order being finalised in the Southport Magistrates Court on the 28th day of March 2011.
It was submitted on Mr Harvie’s behalf that these particulars do not take the charge any further. This is because all the events listed happened before the relationship between Mr Harvie and the aggrieved started. Mr Harvie did no further investigative work after 3 June 2010 which was the day when he took a statement from the aggrieved. The only thing Mr Harvie did after that time to progress the application for the domestic violence protection order was to upload the aggrieved’s statement onto the computer system on 9 July 2010 and make a factual statement of his own on 20 June 2010.
Mr Zillman relies on a passage from the judgment of Hunt AJA in the NSW Court of Criminal Appeal in R v Saffron[9]
Certainly, an accused's entitlement to particulars in a criminal case is the same as a defendant's entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him.
[9](1988) 17 NSWLR 395.
We accept that in a case of this sort where a police officer faces disciplinary action it is a principle of natural justice that the charges should be made against the officer with such particularity as will enable the officer fairly to be able to defend himself. This is particularly so when it is being alleged that the officer engaged in “improper conduct” where these words are not further defined. The officer is entitled to know how his conduct is alleged to be improper and when and where the improper conduct is alleged to have occurred in so far as such particulars can be provided. In the context of disciplinary action generally, this has been referred to by the High Court as a requirement that the allegations must be specifically identified.[10]
[10]Deane J in Smith v NSW Bar Association in the High Court (1992) 176 CLR 256.
However, in a review before the Tribunal there is a fresh hearing on the merits which should produce the correct and preferable decision.[11] Hence, the question is not whether the allegations were sufficiently particularised before the Commissioner but whether they are sufficiently particularised before the Tribunal. This means that in a case where an applicant has had notice of the allegations against him in the proceedings which are the subject of the review, then this can amount to notice of the allegations against him for the purpose of the Tribunal proceedings. The contention that the charge was not properly particularised before the Commissioner could be, perhaps, a ground of appeal but the proceeding before the Tribunal is not an appeal against the Commissioner’s decision.
[11]QCAT Act s 20.
In this instance, the Commissioner gave very detailed reasoning for his substantive findings and his conclusion on sanction. In a 93 page findings and reasons document, some 37 pages of that reasoning is devoted to Matter 1.
In that document, it is clear that the Commissioner regarded the improper behaviour (and therefore the misconduct) as being Mr Harvie’s active participation in forming the relationship with the aggrieved while the domestic violence proceedings were still afoot.[12]
[12]Page 48 of the findings and reasons.
This, the Commissioner said, seriously compromised the impartial fulfilment of the Mr Harvie’s official duties and responsibilities. These words were a reference to the Code of Conduct which required members to arrange their private affairs in a manner that will prevent any actual or apparent conflict of interests from arising wherever foreseeable. The Commissioner recited these definitions from the Human Resource Management Manual: “Apparent conflicts of interests” exist when it appears that a member’s private interests could interfere with the proper performance of their official duties, and “actual conflicts of interest” exist when a reasonable person, in possession of the relevant facts, would conclude that the member’s private interests are interfering with the proper performance of their official duties.[13] Further, members are to ensure that as far as practicable there is no conflict of interest between their personal interests and the impartial fulfilment of their official duties and responsibilities.[14]
[13]Page 45 of the findings and reasons.
[14]Page 43 of the findings and reasons.
The Commissioner pointed out that a person in the position of WBR was entitled to believe the allegation made against him would be investigated fairly and clinically without prejudice to either party. No person in that position could ever feel, given the admitted sexual activity between the investigating officer and the aggrieved, that the investigation was being conducted both objectively and impartially.[15]
[15]Page 45 of the findings and reasons.
When considering the appropriate sanction, the Commissioner stated that Mr Harvie should have overtly disassociated himself from the legal process that led to the application for a domestic violence protection order.[16]
[16]Page 87 of the findings and reasons.
These excerpts from the findings and reasons show that it is clear to Mr Harvie the case which he faces before the Tribunal. The allegation is that by forming the intimate relationship with the aggrieved, Mr Harvie had put himself in a position of conflict of interest bearing in mind he remained the named investigating officer in the domestic violence proceedings.
The submissions made on Mr Harvie’s behalf deal with the extent of any such conflict of interest although not addressing the matter in those terms. However, it is clear from those submissions and the oral submissions made on Mr Harvie’s behalf that he has been afforded an opportunity to present his case before the Tribunal without any disadvantage arising from lack of clarity in the case that he was facing.
Is Matter 1 substantiated?
Mr Harvie does not deny that his intimate relationship with the aggrieved started while the domestic violence proceedings were still afoot.
The domestic violence proceedings started on 31 May 2010 when a temporary protection order was issued by a Magistrate sitting at Southport Magistrates Court. On 20 August 2010 the aggrieved reported that WBR had breached that temporary protection order. The final consideration of the proceedings was originally listed for 8 September 2010, but was postponed until 19 September 2010 and the temporary protection order was continued. On 19 September 2010 directions were given to deal with the alleged breaches of the order. A final order was made in the proceedings on 28 March 2011. On that day the protection order was continued without consideration of the evidence and by consent, for a further period of 3 months.
The date when the relationship between Mr Harvie and the aggrieved started and its intensity is important to understand the seriousness of the allegations against Mr Harvie. The Commissioner found that the relationship between Mr Harvie and the aggrieved evolved rapidly after their first meeting. He found that it was intimate at the time of their first “date” on 4 June 2010, and that they began co-habitating either on a full time or part time basis from about 6 June 2010.[17]
[17]Pages 19 and 47 of the findings and reasons.
Mr Harvie is not precise about the date when the relationship started and when it developed into an intimate one and when he started to co-habitate with the aggrieved. We need to make our own finding on this matter. The evidence on which we make our finding comes firstly from a number of circumstances which are not controversial, and then from interviews conducted with Mr Harvie himself. There are also interviews conducted with the aggrieved and her mother, and statements made by WBR.
The circumstances which are not controversial are:-
a) after the temporary protection order had been obtained in the domestic violence proceedings on 31 May 2010 there were SMS texts passing between Mr Harvie and the aggrieved;
b) Mr Harvie visited the aggrieved on 3 June 2010 in order to take a detailed statement from her for the proceedings, but he did this when off duty and he did not inform anyone in the police service that he was doing this;
c) after the visit on 3 June 2010, Mr Harvie and the aggrieved spoke on the telephone for an hour or two and they arranged to meet socially on 4 June 2010;
d) on 4 June 2010, Mr Harvie met the aggrieved socially;
e) on 6 June 2010, Mr Harvie had dinner with the aggrieved at her house and left from there to go to work on his night shift;
f) on or before 7 June 2010 Mr Harvie gave an old police badge to the aggrieved’s son;
g) on 9 June 2010 Mr Harvie was at the aggrieved’s mother’s house attending a birthday party;
h) on 11 June 2010 Mr Harvie went out for dinner with the aggrieved and members of her family and stayed the night at her mother’s house;
i) on 15 June 2010 the aggrieved posted an image of Mr Harvie’s dog on her Facebook page stating that the dog belonged to her “boyfriend”;
j) at about that time Mr Harvie spent the night at the aggrieved’s house;
k) by that time, the aggrieved was using “Harvie” as her family name;
l) at about that time, images on the aggrieved’s Facebook page depicted Mr Harvie engaging in family activities with the aggrieved and her children.
Mr Harvie informed a fellow officer that his relationship with the aggrieved started shortly after the application for a temporary domestic violence protection order. On 20 August 2010, to Senior Sergeant H he referred to the aggrieved as his “de facto partner”. The statement made by Mr Harvie on 19 March 2011 refers to a number of incidents in August 2010 when Mr Harvie attended social functions with the aggrieved and her family. However, in a formal interview on 1 April 2011 he stated that he had started cohabiting with the aggrieved in September 2010 and this is also in his statement of 19 March 2011.
Despite the relationship which had developed with the aggrieved, Mr Harvie did not try to extricate himself from the domestic violence proceedings. He was the named applicant in those proceedings having laid the complaint, although the orders which were made were made in favour of the aggrieved. He remained the named applicant right up to the conclusion of the proceedings on 28 March 2011. In addition, as far as the police service was concerned, he remained on the record as the investigating officer with respect to the proceedings. In the earlier stages of the proceedings, but not after August 2010, he was therefore responsible to ensure that the proceedings were progressed in court.
Pursuant to these obligations as the named applicant and as the investigating officer on the record, Mr Harvie took a detailed statement from the aggrieved on 3 June 2010 and uploaded this onto the police computer system on 8 July 2010. Meanwhile he had made his own witness statement of fact about the domestic violence on 20 June 2010. Apart from these things, he did not do anything else in furtherance of the domestic violence proceedings. In particular, he did not actively investigate the original domestic violence allegations, nor did he investigate the alleged breach of the temporary order. He had been instructed on 20 August 2010 by Senior Sergeant H to separate himself from any further investigation into WBR and this is what he did. Having submitted factual evidence to the court, he did attend the court hearings, but he was not present in the role as prosecutor – that role was taken by another officer Sergeant WG. For the final hearing of 28 March 2011, Mr Harvie made a further witness statement of fact on 19 March 2011. It is accepted by Mr McLeod for the Respondent that Mr Harvie was instructed to make this statement by Sergeant WG.
Mr Harvie did however, remain as applicant in the domestic violence proceedings. There was a discussion in the hearing before us about how Mr Harvie could have extricated himself from the domestic violence proceedings and removed himself as applicant. This would have required some help and advice from senior officers because it would have entailed making an application to the court and seeking the substitution of another police officer as applicant.
However, Mr Harvie did not seek that help, nor seek the advice of his senior officers about what to do, bearing in mind the relationship which had developed with the aggrieved.
The first his senior officers knew that Mr Harvie had formed a relationship with the aggrieved was after WBR made a complaint about this fact on 9 August 2010. This resulted in the instruction from Senior Sergeant H mentioned above.
There is some suggestion in the evidence that Mr Harvie’s immediate supervisor was aware of the possibility of a relationship between Mr Harvie and the aggrieved from an earlier date. If this is correct, no action was taken about this. In any case Mr Harvie himself did not specifically inform his supervisor. For these reasons, whether or not Mr Harvie’s supervisor was aware of the relationship does not go to the question of substantiation so it is unnecessary for us to make a finding about this matter in these reasons.
There are two elements in Matter 1:-
a) that between 3 June 2010 and 29 March 2011 Mr Harvie engaged in an intimate relationship with the aggrieved; and
b) that relationship was inappropriate and therefore improper because it was whilst proceedings for a domestic violence protection order were yet to be determined.
Element (a) is admitted by Mr Harvie. As for element (b), whether the relationship was inappropriate and improper in the circumstances depends on the date when the relationship first arose and its intensity. There is a level of relationship which would be expected to exist between an aggrieved complainant and an investigating police officer. As can be seen from the analysis of the evidence above, there is substantial evidence that soon after they met, Mr Harvie and the aggrieved started a relationship which went beyond that level. On our findings that happened on 3 June 2010 when they spoke at length on the telephone and arranged to meet socially the following day. The date when that relationship became “intimate” or when cohabitation actually commenced is more difficult to establish on the evidence. On the balance of probabilities the relationship was intimate soon after 4 June 2010, cohabitation being sporadic from that date, and full-time from at least 20 August 2010 when Mr Harvie described the aggrieved as his “de facto partner”.
On our finding it was not until about mid August 2010 that Mr Harvie informed his superior officers about the nature of the relationship which had developed with the aggrieved.
On the question whether this relationship was inappropriate and therefore improper in the circumstances, there is good reason for police officers to be impartial and objective when dealing with a complaint form a member of the public in relation to the conduct of an individual. This is particularly so when the complaint might result in the individual’s detention, arrest or prosecution. Although it cannot be said that there is any special relationship[18] between an aggrieved person/complainant and the police officer investigating a complaint, it is imperative there be perception of impartiality. An investigating police officer in these circumstances is in a position to exercise influence over an aggrieved/complainant particularly if they are in a position of vulnerability. The power imbalance in this type of a situation could result in a perceived abuse of a position of trust, which would undermine the public’s confidence in the police service. The perception of or actual exercise of undue influence in such a situation must be guarded against at all costs.
[18]E.g. doctor/patient; teacher/student; lawyer/client which, of itself, gives rise to a fiduciary relationship.
For these reasons in any situation where there is actual or could be perceived conflict of interest, police officers should avoid entering into personal relationships with those with whom they come into contact in their role as police officers. However, this having happened in this case, Mr Harvie should have been conscious of the conflict of interest which had arisen and as soon as the personal relationship started, he should have taken appropriate action either to avoid it or have sought immediate guidance from his superiors about how to deal with the situation. The two things, which needed to be done, were to remove himself as applicant in the proceedings and as investigating officer on the record. Only in this way could the perception that he was in a position to influence the proceedings and the impact on the public confidence in the Queensland Police Service be reduced to a minimum. This we think, is the gravamen of his improper conduct. It is of concern that no action was taken against Mr Harvie until 18 August 2011 when he was stood down from active service, despite the relationship being well known for at least a year before this by those who served with him, including more senior officers. Whether this signifies an acceptance of his conduct or simply apathy is unclear, but it seems obvious that if it was regarded as serious misconduct at that time, immediate disciplinary action would have been taken against Mr Harvie. However, this is not a defence to the charge made against him, but more properly goes to the sanction that should be imposed for the misconduct.
It was submitted that the conduct was not so serious to amount to misconduct but rather a breach of discipline. We disagree. We find that Mr Harvie’s conduct falls squarely within the definition of misconduct, for the reasons stated, because it did not meet the standard of conduct the community reasonably expects of a police officer.
We have therefore come to the view that the charge in Matter 1 is substantiated.
Is Matter 6 substantiated?
Whether this charge is substantiated depends on our conclusions of fact with respect to Mr Harvie’s conduct in an incident involving WBR on the 18th August 2011. On that day, whilst in a marked police vehicle Mr Harvie directed Const. MM to intercept WBR’s vehicle. Const. MM then required WBR to undertake a random breath test and provide licence details. It is alleged that Mr Harvie did this with the intention of intimidating or harassing WBR.
Mr Harvie accepts that he directed Const. MM to intercept the vehicle. He says that they were on general duty in a marked police vehicle and one of their tasks was to carry out random breath tests. He says that when he first saw the other vehicle it was travelling in the opposite direction and he noticed the front bumper was hanging down. Because of this, he directed Const. MM to do a u-turn and intercept the vehicle in order to conduct a random breath test. It was only when the police vehicle closed in to the vehicle that he realised WBR was driving it. Because of that, he stayed in the police vehicle and let Const. MM deal with the interception. If Mr Harvie’s version of the events is accepted then, applying the Briginshaw test, the Tribunal could not be reasonably satisfied that the intention to intimidate or harass is made out.
The Commissioner’s finding was that Mr Harvie knew from the outset that it was WBR’s vehicle and that is why he directed Const. MM to intercept it. This conduct was therefore intentional intimidation and harassment of WBR.
Whether or not Matter 6 is substantiated therefore turns on Mr Harvie’s motive for the interception. There are two disputed factual matters which must be resolved before that motive can be considered. These are whether the front bumper bar on WBR’s vehicle was hanging down as he says and whether the police vehicle and WBR’s vehicle were travelling in opposite directions requiring the police vehicle to do a u-turn to carry out the interception.
We will deal with the hanging bumper bar first. It is only Mr Harvie who says that the bumper was hanging down. WBR says that there was no damage to the vehicle at the time of the interception. Also when interviewed, Const. MM could not recall any damage to the vehicle.
Const. MM would be expected to have some recollection of the interception because firstly, he discussed it with Senior Sergeant MU in September 2011 and secondly, because he was aware of Mr Harvie’s involvement with WBR. However, when interviewed in September 2011 he was not asked specifically to recall whether Mr Harvie told him to pull over WBR’s vehicle because of the hanging bumper bar. He was not asked about Mr Harvie’s version of events until 31 May 2012. That, in our view, is a long time to pass in circumstances where one could reasonably expect that Const. MM would have made or been involved in numerous intercepts in the intervening period. This then brings the reliability of his recollection into question. In the interview on 31 May 2012 with Senior Sergeant MU he was asked whether he recalled Mr Harvie made “any suggestion that the vehicle was damaged in any way”, to which he replied in the negative. He was then asked whether he made an inspection of the vehicle and whether he noticed any damage. Again said he made a “very brief one” and did not notice any damage. When pressed he said he didn’t recall any damage to the vehicle. Unfortunately, it was not put directly to Const. MM in this interview whether the front bumper was hanging down, so we do not know what his response would have been to this more direct question. At the hearing we were provided with some photographs of WBR’s vehicle. What is plain from these is that the bumper bar had undergone some work or repair by being reattached to the body of the vehicle with screws. It does appear from the photographs that this was not a professional job. The screws holding the bumper bar to the body of the vehicle are visible, and the bumper bar is not a neat fit on the body. WBR confirmed in his statement that work of this nature was done some four years before the interception. The aggrieved made an affidavit and exhibited a number of photographs of the vehicle. She said that she noticed the bumper bar was sagging on one side and her daughter pointed it out to her. This was some time prior to the interception. There is evidence therefore demonstrating a possible weakness in the fixing of the bumper bar. It is at least feasible that it could have become dislodged and that it appeared to be hanging down a little on the day of the interception. We note in this respect that Mr Harvie does not say by how far he saw it hanging down.
Senior Sergeant MU inspected the vehicle well after the event and provided an opinion about the condition of the bumper but this does not really assist us in deciding this factual dispute.
Mr Zillman submits that the issue about the bumper bar is a non-issue because both Const. MM and Mr Harvie were tasked with random breath test duties and the reason for stopping WBR's vehicle was to discharge this duty and therefore they did not need a reason to stop WBR’s vehicle. This however oversimplifies the situation. Mr Harvie has given the bumper bar as a specific reason for the interception. If his evidence on this point is not accepted then it does give some basis for the contention that he had and ulterior motive for the interception - that is to harass or intimidate WBR.
A finding as to the direction of travel of the vehicles assists when considering the bumper bar issue. Mr Harvie is adamant that WBR’s vehicle approached from the opposite direction. In fact, WBR confirms this in his interview. He was pressed by Senior Sergeant MU on this during the interview but steadfastly maintained his position that the vehicles approached from opposite directions. So, Mr Harvie’s version about the direction of travel of the vehicles is supported by WBR.
In his interview in September 2011, Const. MM recalled that they followed WBR’s vehicle along Bermuda Street into Ashmore Road. Initially about 100 metres behind. He was then asked to intercept the vehicle by Mr Harvie. He makes no reference to the vehicles travelling in opposite directions and having to make a u-turn. However, it was not suggested to him at this interview that that this is what had happened. Nor was it suggested to him when interviewed on 31 May 2012. We do not know what Const. MM would have said if he had been asked directly about this, and this weakens his evidence about this issue.
We conclude that prior to the interception, the police vehicle and WBR’s car were travelling in opposite directions. This is consistent with both Mr Harvie’s and WBR’s statements. This being the case, we think Mr Harvie must be correct that the decision to intercept the vehicle was made at that time and he directed Const. MM to do so. Otherwise there would be no reason for the police vehicle to carry out the u-turn manoeuvre.
Returning to the question about the bumper bar, it was suggested in submissions that had the bumper bar been hanging down Const. MM would have taken some action about it. It was said that this indicates that it was not hanging down. The difficulty with this submission is that there is no evidence that such action would have been taken by the police in such a case when stopping a car for a random breath test.
There is an inherent weakness in Const. MM’s statement about not recalling damage to WBR’s vehicle. He was not asked specifically about the bumper bar and it was over nine months’ later that he was asked about “damage” to WBR’s vehicle. It is not surprising that he could not recall any.
This being so, we have to decide whether to accept Mr Harvie’s evidence that he saw the bumper bar hanging down and this is why he gave the direction to Const. MM. Against this is WBR who says that there was no damage to his vehicle at the time. In support of Mr Harvie’s version is the previous damage or work, which as can be seen from the photographs, was still visible. In balancing the two versions we are conscious that both Mr Harvie and WBR would have a reason to make up their stories.
In the case of WBR, the Commissioner said:-[19]
It is clear WBR has a significant dislike of you and it is apparent he holds a revenge mentality toward you and your position as an officer. For that reason, I am mindful of what weight, if any, I can place on the evidence of WBR. As a matter of fairness and by way of caution I reject the evidence of WBR when there is no corroborative evidence to support his claims.
[19]Page 45 of the findings and reasons.
We think on what we have seen and heard that the Commissioner was justified in taking the view that he did about the evidence of WBR. We are therefore led to the conclusion that on balance there is no justifiable or intelligible reason to reject Mr Harvie’s version of events with respect to the interception.
This being the case we also accept Mr Harvie’s evidence that the purpose of the interception was to conduct a random breath test on the driver of the other vehicle and was not to intimidate or harass WBR.
We are supported in this conclusion also because Mr Harvie's conduct, once the intercept occurred, is inconsistent with harassment or intimidation. This is because he made a positive decision not to have any interaction with WBR to avoid confrontation and he stayed in his vehicle.
For these reasons we do not find Matter 6 is substantiated.
Is Matter 7 substantiated?
With respect to Matter 7 the charge cannot be substantiated because of our findings of fact in respect of Matter 6. However, we would observe and concur with the submissions of Mr Zillman. On the evidence provided by the witnesses interviewed about the interception, simply because different versions are given to the best of one’s recollection it does not mean that an interviewee is intentionally being untruthful. It is worth recalling what the Appeal Tribunal said in Chapman v Assistant Commissioner Paul Wilson[20]
[52] ..... Just as there may be misrepresentation by silence, deliberate omissions which lead to the presentation of an untrue picture could found a charge of “untruthfulness” in the context of a police disciplinary matter.
[53] It is worth noting that if questioning is not specific enough, many interpretations may be possible on the part of an interviewee, and if asked to give a version of an event, it may be reasonable to simply provide the main points. To leave out a minor detail is not necessarily untruthful. Forgetfulness may reflect poorly on a police officer, but it is not untruthfulness.
[54] A person will not be guilty of untruthfulness through mere inaccuracy or honest mistake. If a person believes a statement is correct at the time the person makes it, the person is not being untruthful. In the context of police interviews we consider that an officer is “untruthful” if he or she knowingly misleads the interviewer (by act or omission) or knowingly makes a false statement.
[20][2011] QCAT 529.
Mr Harvie provided responses to the questions, an interview which took place six months after the relevant event, to the best of his recollection. There is no evidence, other than different recollections, to support a conclusion that he “knowingly” misled the interviewer, despite the vigorous nature of the interview.
Matter 7 is not substantiated.
Sanction
We have found that Matter 1, has been substantiated and Matters 6 and 7 have not been substantiated.
There are a number of mitigating circumstances which must be taken into account in deciding on the appropriate sanction to be imposed.
Financial Loss
Mr Harvie was stood down from active police service on 19 August 2011. At that time he was the rank of Senior Constable on paypoint 2.8. Had he not been stood down he would probably have progressed by November 2011 to Senior Constable paypoint 2.9. Thereafter he may have been eligible for promotion to Sergeant, subject to compliance with the Police Service’s performance requirements. Because he was stood down he lost the chance to progress to the higher paypoint and lost the chance of promotion.
In addition, he has suffered financial loss because he could not be rostered for operational duties, which would entitle him to various shift allowances. Although we have no detail as to what those allowances might have been, it is well known that police officers on active duty do have additional shift allowances, for instance working night shifts which supplements their income.
Delay
There has been significant delay in finalising these disciplinary proceedings. Some of that delay has come about because further charges were laid. Even so, having been stood down in August 2011, and in the absence of any reasonable explanation, the delay seems to be inordinate. This naturally has put Mr Harvie under considerable emotional distress, uncertainty about his future, and embarrassment within the ranks of serving police. We think it imperative, and this was acknowledged by counsel for the Commissioner, that disciplinary matters must proceed without delay. This is particularly so when the officer concerned has been stood down, because that interrupts the officer’s pay and career progression and is also usually much more disturbing to the officer on a human level.
The nature of the relationship between the applicant and the aggrieved
It cannot be ignored that Mr Harvie and the aggrieved have established what appears to be a loving and long-term relationship. They are now married, and there is a child of the union. We have already addressed what we consider to be the particular misconduct but we also must take into account that although inappropriate at the commencement, the relationship has proved to be one of substance.
There is no evidence that Mr Harvie exercised any undue influence, as a police officer, over the aggrieved person and the relationship was from the very beginning consensual.
Knowledge of his superiors
After Mr Harvie’s superiors became aware of the relationship he was instructed to separate himself from any further investigation into WBR and this is what he did. No other action was taken against Mr Harvie. This does not condone his conduct, but it does demonstrate the seriousness with which the misconduct was viewed by his superiors. It was not until WBR’s complaint about being stopped in his vehicle that action was taken with respect to Matter 1. Prior to that time the relationship was not regarded as a serious enough issue to warrant disciplinary action and we find that this is a matter that should be properly be taken into account on sanction.
Service Record
There is no evidence before us to contradict the assumption that Mr Harvie has a good police service record. He was sworn in as an officer in November 2001 and has proceeded through all paypoints to Senior Constable indicating that he has satisfied all of the performance criteria for advancement. Furthermore, he fully cooperated with the investigation into his conduct. It has been suggested that Mr Harvie lacks insight into his conduct but we are confident that the inappropriateness of his conduct has been brought home to him in these proceedings.
Appropriate sanction
It was not challenged that the dismissal should not remain. However, the respondent did submit that Mr Harvie’s rank should be reduced from Senior Constable to Constable paypoint 1.5. This is a significant penalty to impose on him because it would take approximately nine years, again subject of performance requirements, for him to achieve his current rank and paypoint. Although we do not have specific figures on the financial loss, past cases demonstrate that the loss would be significant. Not only would he be at a financial disadvantage because of that pay loss, he would not be in a position to gain promotion to Sergeant for at least another nine years resulting in further significant financial loss. We think a penalty along those lines would, in the circumstances, be manifestly excessive.
The applicant contended that a small fine would be appropriate or even a reprimand. This in our view is at the other end of the scale. This would be far too lenient and not reflect the seriousness of the misconduct. We were referred to Medical Board of Queensland v B[21] where the Health Practitioners Tribunal had to consider a similar circumstance where a doctor became involved with a patient. The Tribunal there ordered a fine of $1,000 however the applicant was also ordered to pay costs of some $20,000. As QCAT is not a cost jurisdiction, save unless it is in the interests of justice to make such an order, each party will bear their own costs. We note that in the case of B, the relationship started after the therapeutic relationship ceased and 8 weeks after the last doctor patient consultation. We do not find this case particularly helpful.
[21][2009] QHPT 9.
We have considered all sanction options available to us including paypoint reduction, dismissal with a suspension and of course demotion.[22] However, given the long delay in this matter and the financial detriment already suffered by Mr Harvie, we consider that a suspension of three months from the Queensland Police Service is appropriate in the circumstances of this case.[23] This properly reflects, in our view, the purposes of the disciplinary process, meets with community expectations as to the appropriate sanction to be imposed and is a sufficient deterrent to any other police officer who might be tempted to engage in similar conduct.
[22]Police Service and Administration Act 1990 s 7.4(3).
[23]Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66 where it was held there was a power to suspend.
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