Lee v Crime and Corruption Commission & Anor

[2014] QCATA 326

CITATION: Lee v Crime and Corruption Commission & Anor [2014] QCATA 326

PARTIES:	Anthony Lee (Applicant/Appellant)
v
Crime and Corruption Commission Deputy Commissioner Ross Barnett (Respondent)

APPLICATION NUMBER: APL151-14

MATTER TYPE: Appeals

HEARING DATE: 30 September 2014

HEARD AT: Brisbane

DECISION OF: Hon J B Thomas AM QC, Judicial Member

DELIVERED ON: 19 November 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.   Leave to appeal is granted;

2.   The appeal against paragraph 1 of the QCAT order of 6 March 2014 granting leave to the Crime and Corruption Commission to adduce the evidence therein specified is dismissed;

3. The appeal against paragraph 2 of the QCAT order in this matter of 6 March 2014 (ordering return of the matter to Deputy Commissioner Barnett for reconsideration pursuant to s 23 of the Queensland Civil and Administrative Tribunal Act 2009) is allowed, and that order is set aside;

4. In its place it is ordered that the decisions of Deputy Commissioner Barnett comprised in Form A (dated 3 June 2013 and 14 June 2013) and Form B (dated 19 June 2013) are set aside under s 24 of the said Act, and the disciplinary proceeding against Anthony Lee is returned for reconsideration and further processing.

CATCHWORDS: 

Police discipline – monitoring role of CMC and CCC – reviewable decisions – what constitutes a reviewable decision in the police disciplinary process – whether prosecutorial functions reviewable – police disciplinary system discussed – Administrative Consensual Disciplinary Process (ACDP) discussed – requirements for proper charge to be laid – need for identification of charge – whether "dishonesty" or "bias" raised in charge – circumstances in which lighter charge laid than might be thought reasonable – failure to specify any "prescribed ground" under PSAA Regulations – sanction fully suspended – whether justifiable under s 5 of PSAA regulations – whether plea bargaining authorised by ACDP – adduction of new evidence under s 219H of CMC Act and CCC Act – circumstances justifying setting aside decisions and returning the matter under s 24 of QCAT Act

Crime and Corruption Act 2001 (Qld), s 219BA
Crime and Misconduct Act 2001 (Qld), s 219BA(1), s 219G, s 219H
Police Service Administration Act 1990 (Qld), s 1.4, s 4.9(1), s 4.9(3), s 7.4
Police Service (Discipline) Regulations 1990 (Qld), s 5, s 12
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c), s 20(2), s 23, s 24(1)(c)

Aldrich v Ross [2001] 2 Qd R 235
Arndt v Crime and Misconduct Commission and Anor [2013] QCATA 340
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Crime and Misconduct Commission v Wilson & Chapman [2010] QCAT 564
Derry v Peek (1889) 14 App Cas 337
John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
Legal Services Commissioner v Madden (No 2) [2008] QCA 301
Harris v Muirhead [1993] 2 Qd R 527
Makin v Attorney-General for New South Wales [1894] AC 57
Melling v O’Reilly [1991] MTA (Misconduct Tribunal, Dr Forbes, 2 April 2008)
Morris v Crown Office [1970] 2 QB 114
R v Barlow (1997) 144 ALR 317
R v Cole [1965] 2 QB 388
R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239
R v Jobson [1989] 2 Qd R 464
Redland Shire Council v Bushcliff Pty Ltd [1997] 2 Qd R 97
Wilson v Coordinator-General Department of State Development [2001] QCA 159

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REPRESENTATIVES:

APPLICANT: represented by  Mr P Davis QC and Mr T Schmidt (counsel)

FIRST RESPONDENT: represented by Mr Mac Giolla Ri (counsel)

SECOND RESPONDENT: represented by Mr S R McLeod (counsel)

REASONS FOR DECISION

INDEX

Jurisdiction  [3]
Background and Overview  [11]
Main Facts  [25]
Interpretation of the Charge as Laid  [43]
Available Charges on the Evidence  [48]
Reviewable Decisions and Ultimate Issues   [59]
The Police Disciplinary System  [68]
The Administrative Consensual Disciplinary Process (ACDP)                 [80]
Further Points of Concern  [88]
Plea Bargaining?  [96]
Should the ‘additional evidence’ be received on the QCAT Review?        [108]
How should the matter now proceed?  [125]
Orders  [141]

[1]These proceedings concern police discipline and the monitoring role of the Crime and Misconduct Commission (now the Crime and Corruption Commission) in that process.

[2](a)    The applicant/appellant police officer will be referred to as ‘Sergeant    Lee’;

(b)    On 1 July 2014 the first respondent underwent a change of name. It will be referred to as the CMC or the CCC according to the relevant time of reference;

(c)     The second respondent, Deputy Commissioner Barnett, will be referred to as ‘the decision-maker’.

Jurisdiction

[3]This is an appeal under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("the QCAT Act") against an interlocutory decision of the QCAT Tribunal. The decision under appeal granted leave to the CMC to adduce certain evidence in a pending QCAT review of a disciplinary determination by the decision-maker concerning Sergeant Lee, and ordered that the matter be returned to the decision-maker for reconsideration under s 23 of the QCAT Act.

[4]The QCAT review was brought by the CMC pursuant to s 219G of the Crime and Misconduct Act 2001 (Qld) ("the CMC Act"). Under that section the CMC had the right to apply for review of a ‘reviewable decision’ as defined in s 219BA(1) of the CMC Act. It commenced its application before the 2014 amendments came into force.

[5]It is common ground that the decision-maker's decision, which included a finding that misconduct was proved, and which imposed a sanction against Sergeant Lee, is a ‘reviewable decision’ under the CMC Act. It is also a ‘reviewable decision’ under the amended s 219BA of the Crime and Corruption Act 2001 (Qld) ("the CCC Act") where the term ‘corruption’ is defined to included ‘police misconduct’ which is defined in that Act in the same terms as ‘misconduct’ in the Police Service Administration Act 1990 (Qld), s 1.4. The nature of these reviewable decisions is discussed below at [59] to [62].

[6]The CMC was not and could not be a party to the disciplinary proceedings brought within the Police Department against Sergeant Lee, but it became involved in these proceedings at various stages in its role of public monitor of police misconduct under the Crime and Misconduct Act.[1]

[1]Crime and Misconduct Act 2001 (Qld) ss 33-36, 41-42, 47, 64.

[7]A review under s 219G of the CMC Act is by way of rehearing on the original evidence given before the original decision-maker. QCAT may give leave to adduce further evidence if satisfied of certain requirements specified in s 219H of the CMC Act.

[8]In this case the learned QCAT Member granted leave for the CMC to adduce specific evidence that had not been placed before the decision-maker. That evidence will be referred to as "the additional evidence".

[9]The learned Member also made an order to "return the matter to the first respondent for reconsideration pursuant to s 23 of the QCAT Act".

[10]The present appeal is now against both limbs of the learned QCAT Member's decision.

Background and Overview

[11]This matter has its beginnings in the misconduct of a police officer (Price) in Mackay in 2008. He used excessive force in arresting a female suspect (Toms), and further assaulted her in the watch house. She promptly lodged a complaint.

[12]Sergeant Lee was duly assigned the task of investigating Price’s alleged misconduct.

[13]He did not further interview Toms or any witnesses other than Price. He obtained the watch house CCTV footage which actually confirms the watch house assault complained of, but claims not to have looked at it.

[14]He then reported to his superior officer that the CCTV footage did not support the allegation and recommended Price's exoneration.

[15]Consequently, no action was then taken against Price.

[16]Subsequently Price assaulted another citizen. Public outcry ensued and criminal proceedings were brought against him for both assaults. Eventually, on 11 October 2010 Price was sentenced in the District Court to 27 months imprisonment.

[17]In the meantime suspicion arose concerning Sergeant Lee’s disciplinary investigation. Ultimately his conduct was investigated and disciplinary proceedings were brought against him.

[18]During the police investigation of Sergeant Lee's conduct the CMC was provided with relevant evidence for the purposes of performing its ‘misconduct functions’.[2] It recommended that the matter be pursued by ordinary disciplinary process.[3]

[2]Crime and Misconduct Act 2001 (Qld) s 35.

[3]CMC’s report of 20 December 2012.

[19]Contrary to that recommendation a decision was made within the Police Department to offer Sergeant Lee an abbreviated process known as Administrative Consensual Disciplinary Process ("ACDP") which is ‘an on the papers’ procedure in which the decision-maker acts on summaries prepared by designated officers, including the Professional Practices Manager ("the PPM") within the Ethical Standards Command ("ESC").

[20]There is some difficulty in clearly identifying the charge that was actually brought in this matter. Mr Davis QC (for Sergeant Lee), submitted that the charge should be identified as a "Summary of fault conduct" that appears within the "Summary of Matter(s)" section of Form A, contained on pp 13-14 of that document. This issue is discussed below,[4] and it may be foreshadowed that with some hesitation that submission has been accepted.

[4]This question is further discussed below at [81(g)] - [87].

[21]The relevant "summary of fault conduct" did not clearly lay any charge, containing an element of wilful deceit, wilful falsity or bias. It was essentially limited to an allegation of ‘inadequate investigation’.

[22]The sanction that was imposed by the decision-maker was a demotion from Snr-Sgt paypoint 4.4 to Sgt paypoint 3.5. However this was fully suspended, and it apparently involved no financial detriment to Sergeant Lee. No conditions were attached to the suspension, other than the forbidding of further breaches during the 12 month period.

[23]The CMC, concerned at the outcome and at the lightness of the sanction, sought a review of the decision, and in due course it sought to adduce additional evidence which was available but had not been placed before the decision-maker.

[24]The following subparagraphs foreshadow some of the conclusions which have been reached in this appeal:

a)The available facts are capable of showing serious misconduct by Sergeant Lee.

b)On the proper interpretation of the ‘charge’ that was brought, the more serious aspects of the alleged conduct were not incorporated into the charge that was brought.

c)The point at which cause for concern first arises in the process is when the equivalent of a charge was prepared for inclusion in Form A by the Professional Practices Manager who, under the relevant binding policy, was obliged to ‘clearly identify the act or omission which makes the subject officer liable to be considered for disciplinary action’.[5]

d)On the first issue in this appeal, namely the reception of the additional evidence, leave to appeal should be granted because of the public importance of the matter, but the appeal against the admission of the evidence will be dismissed.

e)On the second issue, namely the further conduct of the proceedings, the decision-maker was understandably concerned to avoid any ‘perception of a bias process or outcome, or ‘Caesar judging Caesar’ (which) … can operate to erode public confidence in the QPS’.[6] As matters stand that perception has by no means been dispelled in this case.

f)It is desirable that the opportunity be given to the decision-maker to reconsider the appropriate course of proceeding, and for Sergeant Lee to have the opportunity of responding as he sees fit.

g)The appropriate course will be to make an order under s 24(1)(c) of the QCAT Act setting aside the present decisions, and returning the matter to the original decision-maker so that all options remain open to all parties.

[5]Revised Complaint Management Policy – Administrative Consensual Disciplinary Process Circular No 18/2012, 30 November 2012, para 2.4 at p 90-1.

[6]Appeal record p 21 decision-maker's remark under heading ‘Classification’.

Main Facts

[25]On 18 January 2008, Ms Toms was arrested by Senior Constable Price at Whitsunday and was assaulted by him while in custody. Later that day she made a formal complaint of assault against Price.

[26]On 22 January 2008 that complaint was assigned to Sergeant Lee to investigate whether any offences or police misconduct had been committed by Price.

[27]On 8 February 2008 Sergeant Lee took possession of CCTV footage from the Whitsunday Watch House. That footage in fact shows an assault.

[28]On 26 February 2008 Sergeant Lee submitted an interim report to senior officers responsible for the investigation of the complaint. He stated that he had attempted contact with Ms Toms, obtained a version from Price, viewed the CCTV footage, and that the footage corroborated the version of events supplied by Price.

[29]He further stated that the complaint was interwoven with charges before the Court and that no action should be taken until those proceedings were finalised.

[30]On 29 April 2008 Ms Toms pleaded guilty to various offences. The applicant then forwarded a final report to his superiors recommending that Price be exonerated in relation to her complaint.

[31]A substantial delay then ensued during which, understandably, no further action was taken concerning Price.

[32]Following further complaints from other members of the public against Price, the Police Ethical Standards Command (‘ESC’) took over the investigation of Sergeant Lee's conduct. It was discovered that the CCTV footage clearly depicted the assault. It corroborated Ms Toms' version of events and falsified that of Price.

[33]Price was eventually charged with a number of criminal offences including those arising from the assault of Ms Toms. On 11 October 2010 he pleaded guilty in the District Court and was sentenced to 27 months imprisonment.

[34]During the ESC investigation Sergeant Lee’s investigation was reviewed, and he admitted that he had not in fact viewed the CCTV footage. He further admitted to having improperly investigated the complaint, including not obtaining formal statements from Price or other police present at the time.

[35]On 29 May 2012, a representative of the QPS wrote to the CMC providing a copy of the investigation report and other material concerning the conduct of Sergeant Lee. This included the ‘additional evidence’ which the CMC wishes to be included in any review of the disciplinary proceeding.

[36]On 20 December 2012 the CMC wrote to the QPS recommending that a discipline hearing be conducted against Sergeant Lee with a prescribed officer of at least the rank of Assistant Commissioner.

[37]The QPS was not bound to comply with this recommendation by the CMC. It chose not to follow it.

[38]Instead, on 3 June 2013 Sergeant Lee was invited to resolve the disciplinary allegations against him by means of an Administrative Consensual Disciplinary Process (‘ACDP’).

[39]The relevant forms of the ACDP do not as such identify the ‘charge’ which is being brought against the police officer.

[40]There is however, (towards the end of Form A) a box titled "Matter Number 1, Summary of fault conduct". On page 13 of the form used in the present matter that summary was expressed in the following terms:

Between 22 January and 30 April 2008 at Mackay you failed to adequately conduct preliminary enquiries into a disciplinary complaint in that you:

·Failed to view Whitsunday Watch House CCTV footage of the incident;

·Failed to obtain versions of witnesses involved in the complaint;

·Submitted false information to the Central Region PPM that you had in fact viewed the CCTV footage;

·Unreasonably submitted a recommendation exonerating officers involved in the incident.

[41]Certain steps were taken by the Police Department preceding the formulation and formal offer of the sanction that was eventually offered to Sergeant Lee. It can be inferred that some negotiation or sounding out occurred to ascertain if Sergeant Lee was prepared to ‘accept responsibility’ and accept the ACDP process, and if so, the level of sanction that he was prepared to accept.

[42]The following seems to have been the sequence:

a)On 17 April 2013 a letter was sent by the Inspector-in-Charge of the Legal and Policy Unit, Ethical Standards Command, to Sergeant Lee’s barrister on a ‘without prejudice’ basis, asking for Sergeant Lee’s ‘views on progressing his matter pursuant to the ACDP’ and enclosing ‘an outline’ of what would be included in Form A.[7] The material supplied to QCAT does not indicate whether this letter or its enclosure contained any proposed level of sanction.

b)Sergeant Lee’s barrister responded by letter dated 23 May 2013 containing submissions in mitigation, and stating ‘I am instructed that should the Deputy Commissioner form the view a sanction not exceeding a fully suspended demotion is applicable, that DSS Lee would consent to the ACDP process.’[8]

c)Following this the decision-maker sent a Form A to Sergeant Lee dated 3 June 2013, proposing such a sanction, namely a fully suspended demotion.

d)On 14 June 2013 Sergeant Lee ticked the box stating ‘I accept responsibility for the alleged conduct, consent to participation in the Administrative Consensual Disciplinary Process (ACDP) and accept the proposed classification of conduct and sanction(s)’ and signed and dated the form.

e)On 19 June 2013 the decision-maker imposed the fully suspended demotion on the condition that Sergeant Lee did not commit any further misconduct in the 12 months following the order. This was done by means of a further form, Form B.[9]

[7]Appeal record, 24.

[8]Appeal record, 29.

[9]Appeal record, 32-4.

Interpretation of the Charge as Laid

[43]The submission of counsel for Sergeant Lee is that the charge was essentially of ‘inadequacy of investigation’ and that it did not encompass any more sinister allegations such as wilful falsity, biased investigation, or wilfully misleading his superior officers during the investigation.

[44]The details in the third dot point of the "fault conduct" in Form A include "you..submitted false information to the PPM". That leaves open the possibility that the information was incorrect by reason of negligence or inadequacy of the investigation rather than a wilfully false act. I was at first inclined to think that this allegation necessarily implied wilful falsity, as the information related to his own actions, and it might be implied that he must have known it was false. However that involves an argumentative process, and that particular allegation is a mere particular of the only charge that was formulated, namely ‘you failed to adequately conduct preliminary enquiries in that you ...'. It would be repugnant to the primary allegation of inadequacy if 'you submitted false information' were construed as alleging wilful falsity. Allegations of that kind need to be clearly pleaded.[10]

[10]Legal Services Commissioner v Madden (No 2) [2008] QCA 301; Melling v O'Reilly [1991] MTA (Misconduct Tribunal, Dr Forbes, 2 April 2008).

[45]The CMC originally contended that bias was clearly raised by the charge. It made reference to the whole document, and to the expansive view taken in the John Holland Case[11] of what can be looked at in order to identify a charge. However in oral submissions Mr Mac Giolla Ri conceded the distinction between "falsely" and "dishonestly", and that such matters need to be specifically pleaded. He no longer contended that bias had been properly raised as an element of the charge. By the end of proceedings there was no longer any suggestion that the present charge properly alleges bias or dishonesty.[12]

[11]John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 at [4] and [56].

[12]Transcript of QCAT appeal proceedings 62, ll.35-42.

[46]Mr Davis QC’s submission that the "false information" allegation goes no further than alleging the provision of erroneous or incorrect information is, on examination, clearly correct.

[47]I therefore accept the submission that the only charge so far articulated against Sergeant Lee is one of inadequate investigation rather than of wilful deception or other more sinister conduct.

Available Charges on the Evidence

[48]The charge did not select any of the prescribed ‘grounds’ in the Police Service (Discipline) Regulations 1990 (Qld) ("the PSAA Regulations"), but may be taken to have made a general allegation of "misconduct".

[49]None of the particulars alleges dishonesty, bias, deception or knowing falsity.

[50]The charge actually laid was therefore a relatively mild one in the lower range of seriousness.

[51]The charge actually laid ("inadequacy") does not appear anywhere in s 9 of the PSAA Regulations which prescribe the grounds for disciplinary action. In substance it might be thought to fall within one or more of the "unfitness", "incompetence", etc grounds stated in s 9(a) and 9(b). Even so, no recognised ground is actually stated.

[52]On the available evidence it is surprising that so low level a charge is all that was brought. This is one of the matters about which the CMC in its monitoring role is entitled to be concerned.

[53]The evidence is capable of showing conduct more serious than inadequacy or mere negligence. It is capable of raising a case of deliberate covering up by an investigator of a target officer's misconduct.

[54]The formulation of the appropriate charge is not without difficulty, but it could justify charges under any or all of (a), (b) or (c) of the statutory definition of misconduct in s 1.4 of the Police Service Administration Act 1990 (Qld) ("the PSAA").

[55]It is open to conclude that the statement that he had viewed the CCTV footage was a lie, and must have been known by him to be false; and that the statement that the footage corroborated the version of events supplied by Price was a sheer fabrication.

[56]In my view some or all of the following allegations would be reasonably open for consideration as particulars of charges:

a)Knowingly making false statements in his report … (with further particulars).

b)Falsely representing to his superior officer that he had examined the footage, knowing the representation to be false.

c)Falsely representing that the footage was non-incriminatory when he had no basis for such a statement.

d)In presenting a disciplinary investigation report, knowingly making false statements.

e)Misrepresenting the content of the footage, knowing he had no basis for such representation and knowing he was lying about having examined the tape.

f)Knowingly misleading his superior officer to whom he was reporting.

[57]It is noted that an allegation of fraud or deceit is sufficiently pleaded by alleging a representation with intention to deceive, or, without belief in its truth, or, recklessly not caring whether it is true or false.[13]

[13]Derry v Peek (1889) 14 App Cas 337.

[58]I express no opinion on whether the evidence does substantiate such allegations. I am at this point indicating some of the types of charge that the evidence is capable of justifying, and which to this stage those responsible for pursuing the matter have not adopted.

Reviewable Decisions and Ultimate Issues

[59]It is not immediately obvious what "decisions" have been made by the decision-maker that are the subject of the review, as the process does not contain any actual determination as such of guilt or responsibility.

[60]On examination the relevant determination consists of two reviewable decisions which might conveniently be stated as substantiation and sanction.[14]

[14]Cf [5] above.

[61]The reviewable decisions are the product of the decision-maker's determination of the conduct as "misconduct", his acceptance of Sergeant Lee's equivalent of a plea of guilty (i.e. of his "acceptance of responsibility"), and his imposition of the sanction. The acceptance of a plea of guilty followed by the imposition of a penalty is regarded in criminal practice as constituting a conviction.[15] By analogy these steps in the ACDP also achieve the effect of a determination that the charge is substantiated.

[15]R v Cole [1965] 2 QB 388.

[62]The "sanction" decision consists of the imposition of the sanction following acceptance of the proposed sanction by the defendant police officer.

[63]QCAT has no power to reformulate the charges or to review their formulation. Such administrative steps along the way simply do not fall within the definition of "reviewable decisions" in the CMC Act or CCC Act.[16] Neither in my view does QCAT have power, under s 24 of the QCAT Act to direct a decision-maker or other person within the Police Department how prosecutorial steps of those kinds must be carried out. The reviewable decision is the ultimate determination of the allegation of misconduct and/or a finding that misconduct is proved.[17]

[16]CMC Act s 219BA (1); CCC Act s 219BA(1) (noting that "corruption" includes "police misconduct").

[17]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-339, 341-343; Redland Shire Council v Bushcliff Pty Ltd [1997] 2 Qd R 97 at 99, 101; Wilson v Coordinator-General Department of State Development [2001] QCA 159 at [10] and [15]; Cf Arndt v Crime and Misconduct Commission and Anor [2013] QCATA 340.

[64]The first question raised on the present appeal is whether the learned member erred in granting leave to adduce additional evidence in the QCAT review.

[65]This question could ultimately prove to be academic if the matter is now remitted to the decision-maker, as it is possible that there could be further investigations, further summaries of evidence, the formulation of different charges, or even an election by Sergeant Lee to reject the ACDP. However it needs to be determined as the correctness of the present decision is in issue, and it will determine the evidence that is to be used when and if the QCAT review proceeds.

[66]The other question is whether QCAT should proceed with a review of the present determinations, or set them aside and return them for further consideration by the decision-maker, with directions under s 24(1)(c) of the QCAT Act. Counsel are now agreed that the use of s 23 is inappropriate because there is no mechanism in that section for setting aside the present determinations.

[67]Before dealing with these issues it is necessary to understand the nature of the police disciplinary process, including its abbreviated form, the ACDP.

The Police Disciplinary System

[68]The primary legislation controlling this system is the Police Service Administration Act 1990 (Qld) (‘PSAA’).

[69]Any police officer is liable to disciplinary action when a ‘prescribed officer’[18] considers the officer's conduct amounts to misconduct or a breach of discipline on grounds prescribed by the Police Service (Discipline) Regulation 1990 (Qld) (‘Discipline Regulation’).

[18]I.e. an officer authorised by the Police Service (Discipline) Regulation 1990 (Qld) to take disciplinary action in the circumstances of the case in question (PSAA s 7.4(1)).

[70]The term ‘misconduct’ is defined[19] to mean:

Conduct that-

(a)is disgraceful, improper or unbecoming 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.

[19]PSAA s 1.4.

[71]The PSAA provides no more than a skeleton for a system. Its procedures and methodology have been brought into operation by a series of ‘directions’ issued by the Commissioner of Police which are binding on all officers.[20] Relevant directions for a police disciplinary system include Disciplinary Hearing (Police Officers) Policy (No 19 of 2011), dated 19 December 2011, Procedural Guidelines for Complaint and Client Service Reporting Policy (No 53 of 2013) dated 1 July 2013, and, significantly for present purposes, Administrative Consensual Disciplinary Process (ACDP) (Circular No 18 of 2012) dated 30 November 2012.

[20]PSAA, s 4.9(1) and s 4.9(3).

[72]The key to liability for disciplinary action is s 7.4(2) of the PSAA. Disciplinary liability attaches to ‘conduct .. which the prescribed officer considers to be misconduct … on such grounds as are prescribed by the regulations’.

[73]The grounds prescribed by the regulations include unfitness, incompetence, inefficiency, negligence, breaches of a prescribed code, breach of a direction of the Commissioner, and ‘misconduct’. Regulation 9 of the Discipline Regulations (‘grounds for disciplinary action') is plainly the prescription of the grounds authorised to be prescribed by s 7.4 of the PSAA, and the term ‘misconduct’ naturally bears the same meaning as that given to it in the Act. In such cases "misconduct" is the primary charge, but its definition is so wide that there should be particulars to show which part of the definition is relied on, and of the conduct which is said to constitute it.

[74]Neither the Act nor the Regulations prescribe any form of process. There is no mention of bringing a charge or of the manner of procedure for its determination. The process is centred on statutory recognition of the power of a ‘prescribed officer’ to discipline another police officer for misconduct (or a breach of discipline).

[75]I have on previous occasions[21] commented on the peculiarities of this system, and noted its similarity with summary disciplinary procedures in the armed forces. The decision-maker does not see or hear witnesses and, generally speaking, witnesses are not sworn or tested. The same limitations attend any review by QCAT which is ‘a fresh hearing on the merits’[22] and in which QCAT has ‘the functions of the decision-maker for the reviewable decision being reviewed’.[23]

[21]Aldrich v Ross [2001] 2 Qd R 235 at 257; Crime and Misconduct Commission v Wilson & Chapman [2010] QCAT 564 at [15]-[20].

[22]QCAT Act s 20(2).

[23]QCAT Act s 19(c).

[76]The QCAT review is the only public review capable of protecting the community (and police officers) from wrong or unacceptable decisions, and the Tribunal is expected to bring a perspective to bear from the public point of view.[24]

[24]Aldrich v Ross [2001] 2 Qd R 235 at 257 ll 29-33. QCAT now performs the function of the Misconduct Tribunals discussed in that case.

[77]The remoteness of the police disciplinary system is even further emphasised by the newer alternative known as ACDP which abbreviates the procedure to a decision on the papers, and in which the decision-maker acts on summaries prepared by other specialised personnel within the Police Department.

[78]There does not appear to be any problem concerning formulation of charges in the ordinary disciplinary system. The helpful submissions of Mr McLeod, counsel for the decision-maker, drew attention to the directions in force for a charged police officer to attend a disciplinary hearing, and for the drawing up and service of the necessary disciplinary charges and particulars. The directions contained in the Disciplinary Hearing (Police Officers) Policy No 19 of 2011, paragraph 3 in particular, are impeccable in this respect.[25] Sufficient information is required to be given as to whether the charge will be misconduct or a breach of discipline, and as to the section, regulation, code or manual that is alleged to have been breached, and particulars of the alleged conduct which constitutes the breach.

[25]Appeal Record 58-59.

[79]However, by contrast, some provisions in the alternative process, the ACDP, are perplexing.

The Administrative Consensual Disciplinary Process (ACDP)

[80]The purpose of the ACDP is said to be to increase the efficiency of the disciplinary process by allowing officers to admit their misconduct (in the knowledge of what sanction is proposed to be applied) without the need for a comprehensive hearing. The policy suggests that it is suitable for matters where ‘remedial intervention’ is not appropriate, and the matter is not unduly complex.[26]

[26]Policy, cl 1 (Introduction), cl 2.1(iii).

[81]The process, as detailed in the ‘policy’ contemplates the following steps:

a)In the early stages of a discipline investigation or other conduct that may require ‘assessment’ or ‘management’, the local region/command or division may recommend that a matter is suitable for an ACDP.[27] The Professional Practices Manager ("PPM") is required to forward to the State Coordinator, Ethical Standards Command (ESC), a recommendation that the matter is suitable to ACDP supported by a draft ‘summary of the facts’.[28]

[27]Policy, cl 2.1.

[28]Ibid.

b)The ESC Assistant Commissioner then makes the decision to offer the process to the police officer, and determines the level of rank needed for the ‘prescribed officer’ or decision-maker.

c)The ESC's Assistant Commissioner then decides what is to be done next, including whether it is to proceed at all, whether a lesser discipline of ‘remedial intervention’ might suffice, asking for further enquiries or investigation, or refer it for ‘management’ or refer it for a disciplinary hearing.[29]

[29]Policy, cl 2.2.

d)If the Assistant Commissioner ESC determines that the matter will proceed by ACDP he or she appoints a Prescribed Officer (i.e. the decision-maker) for the matter.[30]

[30]Policy, cl 2.3.

e)The PPM is obliged to "clearly identify the act or omission which makes the subject officer liable to be considered for disciplinary action". A draft Form A is required to "be approved and returned by ESC Legal and Policy Unit to the Professional Practices Manager for provision to a prescribed officer".[31]

[31]Ibid.

f)The prescribed officer (i.e. the decision-maker) then has a discretion under clause 2.5 of the policy to recommend to the ESC that the matter be returned to the PPM for further enquiry or investigation. However, the prosecutorial function of drawing up of the charges is that of the PPM and the ESC rather than the decision-maker.[32]

[32]Policy, cl 2.4, 2.5.

g)The PPM then prepares a ‘Form A’ which is the basic document containing a summary of the conduct complained of and ‘will include a comprehensive draft summary of the facts’.[33]

[33]Policy, cl 2.4(f).

h)Curiously, the policy then proceeds –

The Form A will include a simplified description of the fault conduct, rather than a disciplinary charge. The description of the fault conduct may be in point form but must clearly identify the act or omission which makes the subject officer liable to be considered for disciplinary action. (My emphasis)

i)This is the closest that the process comes to requiring any identification of the ‘charge’ or ‘matter’ that the defending officer is to face.

j)The Form A is an ‘invitation to undertake ACDP’.

k)In this particular matter Form A is a 14 page document. The first two pages describe features of the process; there follows a summary of facts which summarise the preliminary enquiries and investigation, the ‘Facts relevant to allegations/disciplinary grounds’, and a summary of the ‘Subject officer's response’; there is then a section headed ‘Matters Relevant to Proposed Classification and Sanction(s)’ of about nine pages, which includes favourable and unfavourable work history, comparative sanctions, ‘Other relevant information considered’ reasons for the proposed classification of conduct and sanctions and, finally, ‘Summary of matters’.

l)In the 'Summary of matters', the Form states

In anticipation of you accepting responsibility for the conduct described in the summary of facts and after considering the relevant matters I propose the following classification of conduct and sanction(s):

This is followed by three boxed sections namely: ‘Summary of fault conduct’, ‘Classification’, and ‘Sanction(s)’. These contain the proposals offered to the subject police officer

m)The form concludes with a requirement that the defendant police officer make an election from three options, with a direction to mark one box only.[34]

n)The form is then signed by the decision-maker as the prescribed officer, and dated.

o)There is a separate provision for the use of a "Form B" which finalises the procedure and produces the formal evidence of the decision of the decision-maker.[35]

[34]In this instance Sergeant Lee marked the box stating ‘I accept responsibility for the alleged conduct, consent to participation in the Administrative Consensual Disciplinary Process (ACDP) and accept the proposed classification of conduct and sanction(s)’.

[35]Policy, cl 2.11.

[82]The ‘Summary of fault conduct’ is the portion of the document which counsel have submitted identifies the charge, although it is never clearly identified as a charge.

[83]In an interesting submission Mr Mac Giolla Ri for the CMC contended that in all such matters the "charge" is simply "misconduct", and that the entire Form A comprises the particulars of that charge. It is true that in all such matters there must be a charge capable of substantiating "misconduct" as defined, but the Form A document simply does not proceed in that way. Moreover the so-called "particulars" are unsatisfactory in that they are too wide and embarrassing. In a disciplinary proceeding of this kind a defendant police officer has no obligation to trawl through the document and speculate upon what is charged. It is for the person or entity that brings such a charge to specify it with reasonable particularity.

[84]Clause 2.4 of the ACDP requires a "simplified description of the fault conduct rather than a disciplinary charge". That implies that it is to be something other than a disciplinary charge. But it then proceeds – "The description of the fault conduct may be in point form but must clearly identify the act or omission which makes the subject officer liable to be considered for disciplinary action”.

[85]The latter words are tantamount to the requirements of a charge[36], and run counter to the preceding sentence. It is mainly in reliance on the latter words, and also on the basis that there is no other part of Form A that approaches the formulation of a charge, that I am prepared to accept that the "summary of fault conduct" should be taken as the statement of the charge. A similar submission was made by Mr McLeod on behalf of the decision-maker, by means of the rhetorical question "What else could it be?"

[36]Cf R v Barlow (1996-1997) 188 CLR 1.

[86]I therefore accept Mr Davis QC’s submission that the charge should be taken to be the "summary of fault conduct". It is however incomprehensible why a charge is never clearly identified as such. In my view this is a thoroughly unsatisfactory way of presenting a charge that is the pivot on which the entire process turns.

[87]The absence of sufficiently clear directions in the ACDP about the making and identification of a charge, and the amorphous content of the "summary of fault conduct" undoubtedly contributed to the present unsatisfactory situation.

Further Points of Concern

[88]There are other points of concern with the process and outcome that has so far occurred.

[89]The charge that was laid was less serious than might reasonably have been laid.

[90]The proposed classification in Form A of the conduct as ‘misconduct’ failed to identify any relevant limb of the statutory definition of that term.

[91]The sanction proposed and determined by the decision-maker was a fully suspended sanction.

[92]That suspension did not contain any of the conditions specified by s 12 of the PSAA Regulations and contemplated by the ACDP (Cl 2.6). Instead the decision-maker purported to order a virtually unconditional suspension under s 5 of the Regulations. Whether such an order lay within the power of the decision-maker to make is, to say the least, doubtful.

[93]The only provision dealing with the subject of suspension is s 12. It gives a power of suspension "where a prescribed officer imposes any disciplinary action under these regulations" and requires that such an order be subject to the officer agreeing to perform community service or undergo voluntary counselling. On the other hand s 5 confers a general power to discipline "in a manner that appears to the .. Deputy Commissioner to be warranted". It is only in superior courts that an inherent power exists to suspend the operation of an order.[37] In other situations there needs to be a statutory source regulating the exercise of such a power, and I seriously doubt that s 5 can be regarded as such a provision, especially when there is a special section dealing with the subject of suspension. I shall not discuss this matter further, as it does not need resolution here. This issue is mentioned only as a point of concern arising out of the decision that will need to be resolved before the present proceedings can be satisfactorily finalised. It is noted that the virtually unconditional suspension relieved Sergeant Lee of any significant burden under the order.

[37]Morris v Crown Office [1970] 2 QB 114 at 129; Harris v Muirhead [1993] 2 Qd R 527 at 528-529.

[94]From a public viewpoint the overall picture is one that is capable of causing significant concern.

[95]There is a further matter of possible concern that deserves mention.

Plea Bargaining?

[96]The policy makes no provision for plea bargaining within the process.

[97]The PPM and the ESC Legal and Policy Unit have a duty to prepare a draft Form A which will include ‘comparative sanctions’,[38] and to provide it to the decision-maker. But the duty of ‘identifying the proposed sanction’[39] and the determination of the proposed sanction is for the decision-maker alone.

[38]Policy, cl 2.4.

[39]Policy, cl 2.5.

[98]There are no guidelines or explanation of what the decision-maker is to do ‘in identifying the proposed sanction’.[40] The question arises whether it would be proper for either the ESC or the decision-maker to engage in some form of plea bargaining or negotiation with a defendant police officer’s representative in performing this duty.

[40]Policy, cl 2.5.

[99]I do not think it would be proper for a decision-maker, who is an officer with quasi-judicial duties, to engage in negotiations of this kind.

[100]Widely different opinions are open as to whether it would be appropriate for the prosecutorial arm of the Department to invite defendant police officers to indicate what sanction he or she was willing to accept without mounting a defence, or in other words to invite defending police officers to suggest their own sanctions; or to suggest a sanction and invite suggestions for a lighter one in exchange for a plea of guilty.

[101]It may be inferred that some negotiation of this kind happened in the present instance. The correspondence shows a letter from Sergeant Lee’s barrister dated 23 May 2013 confirming receipt of a draft Form A under cover of a letter from the Inspector-in-Charge, Legal and Policy Unit, ESC, dated 17 April 2013.

[102]Sergeant Lee’s barrister then presented various points in mitigation and proposed a totally suspended sanction.[41]

[41]Appeal record, 24-9.

[103]On 3 June 2013 the decision-maker signed and sent to Sergeant Lee the actual Form A that was used in this matter, containing a fully suspended sanction as proposed on Sergeant Lee's behalf. Short submissions were then sent by Sergeant Lee’s barrister, (4 June 2013) and on 14 June 2013 Form A was duly completed by Sergeant Lee who ticked the appropriate box and signed his assent.

[104]On 19 June 2013 the decision-maker sent Form B which contains the formal orders.[42]

[42]Appeal record, 32-4.

[105]Good reasons may exist why a process of negotiation should be available to narrow the gap between a prosecutor's intentions and a defendant's willingness to cooperate. But there are also arguments that such a process can taint the transparency that is so necessary when police are investigating police for misconduct. Such a system is capable of gross abuse, and of misinterpretation.

[106]Plea bargaining has its problems, even in the general criminal law system, especially as evidenced in the United States. These problems are far more acute when police are prosecuting police, and there is natural suspicion that they may be protecting their own.

[107]There is currently not even a hint that plea bargaining is to be a part of the ACDP. If plea negotiations prior to proposing the sanction are justifiable, one would think that it would be much safer to engage in them if they were specifically authorised and controlled in a Commissioner’s Direction made after public consultation.

Should the ‘additional evidence’ be received on the QCAT Review?

[108]The additional evidence consists essentially of –

(a) the original statement and transcript of interview of the complainant Toms;

(b) Compass (police computer system) summary reports[43] showing the instructions and information received by Sergeant Lee from time to time in relation to his investigation of Price, and his responses; and

(c) the transcript of the subsequent interviews of Sergeant Lee by the ESC investigator.

[43]Appeal record 136-177.

[109]Counsel for Sergeant Lee (Mr Davis QC) submitted that the purpose of the additional evidence was to support a finding that his client had acted dishonestly, and cited Madden's Case.[44]

[44]Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149.

[110]I agree that it would be wrong to admit evidence the principal purpose of which is to establish conduct that lies beyond the ambit of the charge.

[111]The essential question however is whether the additional evidence is relevant to, and casts light upon the ‘inadequacy' that was charged.

[112]For the reasons below, the evidence is capable of use for legitimate purposes within the ambit of the charge as laid. The fact that it is also capable of showing dishonesty is not necessarily a sufficient reason to exclude it.[45]

[45]R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239 at 242-243, 250-251, 254-255; Makin v Attorney-General for New South Wales [1894] AC 57 at 65; R v Jobson [1989] 2 Qd R 464 at 466-467, 473.

[113]The learned QCAT Member's decision was based upon the very specific basis that the additional evidence would provide further relevant detail as to the inadequate nature of the investigation. She at no stage suggested that it could be used for any purpose beyond that charge and considered that it helped to demonstrate "the gravity of the conduct alleged".

[114]The evidence in question casts further light on the extent to which Sergeant Lee’s attention had been drawn to the video.

[115]It also provides details of Sergeant Lee’s knowledge of the circumstances of Ms Toms’s plea of guilty. Her ‘apparent unwillingness to cooperate with the investigation’ was advanced on Sergeant Lee’s behalf as a mitigating factor, and was expressly accepted by the decision-maker.[46] Such evidence allows this factor to be viewed in a fuller context, and may require the alleged mitigation to be given less weight.

[46]Appeal Record 21.

[116]There is also evidence in a Compass report concerning a conversation with Toms of 8 February 2008 which might undermine mitigating claims which Sergeant Lee later advanced in his ESC interview of 16 March 2011.

[117]The Compass report also shows that Sergeant Lee was twice told by email that particular persons had looked at the CCTV, and that it supported Toms' version. Counsel for the CMC submitted that this showed the fact that this had been brought to Lee's attention, that he still did not look at the footage and reported falsely. Again this goes to the gravity of the inadequacy of the investigation. The fact that it might also suggest something more sinister that was not charged does not matter, so long as the more sinister interpretation is not taken into account in determining the sanction.

[118]Other matters were mentioned on behalf of the CMC as casting light on the investigation, which did not find their way into Form A, but it is unnecessary to canvass these as the matters already mentioned suggest that the additional evidence is plainly relevant to the charge and likely to be of assistance in the determination of any review.

[119]In summary, the evidence gives a fuller, more satisfactory picture of Sergeant Lee's investigation than the material supplied to the decision-maker.

[120]However, it was submitted that evidence does not satisfy the requirements of s 219H of the CMC Act.

[121]That section includes the following subsection -

(2) ..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.

[122]The evidence does not satisfy sub-par (a) because the CMC was actually aware of the existence of the evidence. It had recommended that the matter proceed by way of ordinary disciplinary process. Had the police Department accepted that recommendation the evidence would undoubtedly have been before the decision-maker. The CMC was not to know that the matter would proceed as it did, and that the decision-maker would only act on abridged summaries of the evidence. The CMC was in no position to place the additional evidence before him.

[123]Those circumstances help to make the present case a strong example satisfying sub-par (b). In these circumstances it would be unfair not to allow the CMC to adduce the evidence. It would also be prejudicial to the CMC's (or CCC's) oversight role in disciplinary matters if any review sought by it must be limited to the material that the police officers involved in an ACD process choose to include in Form A.

[124]No error is shown in the learned Member's determination of this issue, and in my view it was plainly right.

How should the matter now proceed?

[125]The learned Member's order returning the matter to the decision-maker for reconsideration under s 23 of the QCAT Act was, in effect, a consent order supported by all parties. However their approach has now changed, and the competing preferences are whether QCAT should proceed with the present review by way of a fresh hearing under s 20, or whether it should set aside the decision and return it to the decision-maker for reconsideration under s 24.

[126]Mr Mac Giolla Ri for the CMC submitted that, if it is decided that the evidence should be admitted, both the finding of misconduct and the sanction should be set aside, and the matter should be returned to the QPS for determination in such a way that Sergeant Lee will have the opportunity of withdrawing his plea (i.e. his acceptance of responsibility) and have the opportunity of declining the ACDP.

[127]Such a course is expressly authorised by s 24(1)(c) of the QCAT Act.

[128]Mr Davis QC (for Sergeant Lee) submitted that the issue should be decided according to the best and most convenient way of disposing of the case, and, on his client's instructions, supported continuation of the review by QCAT.

[129]I initially favoured the idea that QCAT, the ultimate independent arbiter in these cases, should proceed to determine the issues. However upon further examination of the whole process I am concerned that the present  QCAT review would have to continue on the basis of the current ‘charge’ which, when interpreted as all counsel now agree it should be interpreted, may well be an inadequate reflection of the seriousness of the conduct the evidence is capable of showing.

[130]I am concerned at the risk of public ‘perception of a biased process or outcome, or of ‘Caesar v Caesar’ (which) … can operate to erode public confidence in the QPS’[47] which the decision-maker was clearly at pains to avoid.

[47]Comments of the decision-maker in Form A, appeal record, 21.

[131]Other aspects of the process mentioned above at [86] - [107] add to concern that the present determinations are unsatisfactory and that they require reconsideration.

[132]An outcome based on the present charge might well wear the appearance of a failure of the police disciplinary system. QCAT should not perpetuate such a situation if it has a discretion to make an order that will permit apparent defects to be remedied.

[133]I therefore favour a return of the matter to the decision-maker in such a way that will permit him, if so inclined, to reconsider the further progressing of the matter. ‘The matter’ is of course the disciplinary proceeding against Sergeant Lee. If the original determinations are set aside, the proceedings will have reached the stage described in paragraph 2.5 of the Commissioner’s circular of 30 November 2012.[48]

[48]The revised Complaint Management Policy – Administrative Consensual Disciplinary Process – Circular No 18 of 2012, 30 November 2012; see appeal record, 91-2.

[134]At that stage of proceedings, the decision-maker may if he sees fit:

·Make a request to be provided with the material here described as the additional evidence (ACDP para 2.5(2)).

·Return the matter to the appropriate PPM for further enquiries or investigation (ACDP para 2.5(iii)).

·Obtain advice from the ESC Legal and Policy Unit or the PPM (under ACDP para 2.7).

·Invite the Policy Unit and/or the PPM to reconsider its formulation of the false conduct in Form A.

It is also possible that the ESC Assistant Commissioner could reverse the original decision to proceed by way of ACDP.

[135]As earlier observed[49] the prosecutorial function is in the hands of the ESC and PPM, while the quasi-judicial duties are entrusted to the decision-maker. It seems clear that the drafting of the charge, i.e. the ‘summary of fault conduct’ as stated in Form A, is ultimately a matter for the PPM rather than the decision-maker (see ACDP paras 2.4, 2.5). But the decision-maker has the right to request the PPM to provide "additional particularly relevant material"[50] and to give the PPM the opportunity of reconsidering inadequately drawn charges[51].

[49]Above, [81(f)].

[50]ACDP cl 2.5(ii).

[51]ACDP cl 2.5(iii).

[136]Clearly QCAT has no power to require the decision-maker or anyone else to act contrary to the requirements of the ACDP.

[137]If an order is made to set aside the present determinations and return the matter to the decision-maker it may well be that he will choose to obtain the "additional material" in the way mentioned in [135] above. But I do not think that QCAT has the right or power to direct the decision-maker or the Police Department how the various administrative functions within the ACDP prior to determinations of the decision-maker are to be performed.[52] In particular, QCAT's power under s 219H of the CMC Act does not include power to direct the adduction of evidence anywhere else than in QCAT's own review.

[52]See [63] above.

[138]Any further review of any subsequent determination will be on the merits of what transpires. But I do not think that the decision-maker can be directed as to what evidence he is to ask for or receive.

[139]I therefore do not propose to give any directions to the decision-maker under s 24(1)(c) of the QCAT Act as to how he should proceed in the matter. It is enough to observe that the setting aside of the present determinations means that a range of further action will now be available to all parties.

[140]Any further determinations will of course be open to further review on the application of the CMC or of Sergeant Lee.

Orders

[141]The following orders will be made:

a)Leave to appeal is granted.

b)The appeal against paragraph 1 of the QCAT order in this matter of 6 March 2014 granting leave to the Crime and Misconduct Commission to adduce the evidence therein specified is dismissed.

c)The appeal against paragraph 2 of the QCAT order in this matter of 6 March 2014 (ordering return of the matter to Deputy Commissioner Ross Barnett for reconsideration pursuant to s 23 of the Queensland Civil and Administrative Tribunal Act 2009) is allowed, and that order is set aside.

d)In its place it is ordered that the decisions of Deputy Commissioner Barnett comprised in Form A (dated 3 June 2013 and 14 June 2013) and Form B (dated 19 June 2014) are set aside under s 24 of that Act, and the matter is returned for reconsideration and further decision.