Newman v Commissioner for Police
[2013] QCAT 152
| CITATION: | Newman v Commissioner for Police [2013] QCAT 152 |
| PARTIES: | Gregory Newman (Applicant) |
| V | |
| Commissioner for Police (Respondent) |
| APPLICATION NUMBER: | OCR103-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 5 December 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Joanne Browne, Member |
| DELIVERED ON: | 20 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent’s decision made on 28 February 2012 in relation to the charge being substantiated is confirmed. 2. The Respondent’s decision to impose a sanction being a deduction in salary or wages of an amount equivalent to a fine of two (2) penalty units is set aside and the following decision is substituted for it: i) Mr Newman be subject to the sanction of reprimand. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – POLICE OFFICER – MISCONDUCT – whether charges were substantiated to the necessary standard – whether sanction excessive Crime and Misconduct Act 2000 (Qld), s 219A, s 219B, s 219BA, s 219C, s 219H(2) Aldrich v Ross [2001] 2 QdR 235, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Gregory Newman, self represented |
| RESPONDENT: | Inspector Ronald Barry, Inspector of Police represented by Mr MD Nicholson of Counsel instructed by the Office of the Queensland Police Service Solicitor |
REASONS FOR DECISION
Mr Richard Oliver, Senior Member
In this matter the Tribunal consisted of Member Browne, and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Joanne Browne, Member
Mr Newman has been a member of the Queensland Police Service (QPS) for some fifteen years. He applied for a gazetted advertised position with the QPS – Senior Sergeant – Officer in Charge, Coomera District Traffic Branch. The application (identified as position number 310/10) was submitted on 5 July 2010; and in submitting the application he declared that to the best of his knowledge and belief the information stated was correct and complete and if necessary he would produce additional information and documentary evidence to support his application.
The application 310/10 included references to examples of work Mr Newman had undertaken in response to the key selection criteria and a reference (in one example presented) to a statement made by an Inspector of police (Inspector Flori) that he (Mr Newman) had displayed ‘…decisive management and leadership of both QPS and external agency staff’.
Mr Newman was the successful applicant for the position (310/10) following a merit based selection process. A complaint was, however, received by the QPS on 14 March 2011 in relation to Mr Newman’s application 310/10 – that it contained plagiarism and false outcomes and comments.
An investigation was undertaken by the QPS (in April 2011) and interviews were conducted and statements obtained - both Mr Newman and Inspector Flori were interviewed on 14 April 2012 and 13 May 2012, respectively. Mr Newman’s newly appointed position (to Senior Sergeant) was cancelled on 8 July 2011.
The QPS later presented (on 14 December 2011) a disciplinary charge against Mr Newman to which he pleaded not guilty:
That on or about 5th July 2010 at the Gold Coast your conduct was improper in that you submitted an application for gazetted advertised position number 310/10 ‘Senior Sergeant – Officer in charge, Coomera District Traffic Branch’ that contained false and misleading information.
Following a hearing (in respect of the charge) on 28 February 2012 the QPS determined that the charge was substantiated. The QPS imposed a sanction being a deduction from Mr Newman’s salary or wages of an amount equivalent to a fine of two (2) penalty units effective immediately – this equates to an amount of approximately $200.00.
Mr Newman seeks a review of the decision made in relation to the finding of misconduct and sanction. Mr Newman does not dispute that the conduct if proven is misconduct for the purposes of the Police Service Administration Act 1990 - the Tribunal granted Mr Newman leave (at the hearing) to amend his application setting out the grounds upon which he seeks a review and the final orders sought to be made by the Tribunal.
Does the Tribunal have jurisdiction to review Mr Newman’s application?
The Tribunal has the jurisdiction to review the QPS decision by power conferred on it by s 17 of the Queensland Civil and Administrative Tribunal Act 2009 and s 219C of the Crime and Misconduct Act 2001. The nature of the review is by way of a rehearing on the evidence that is the original evidence and new evidence relied upon by Mr Newman (with the Tribunal’s leave); and the Tribunal must arrive at its own decision based on the evidence before it.[1] The Tribunal does not, however, have the power to reinstate Mr Newman to the position of Senior Sergeant.
[1]Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384.
The standard of proof to be applied by the Tribunal is the civil standard on the balance of probabilities as set out in the decision of Briginshaw v Briginshaw & Anor[2] and applied in earlier decisions of this Tribunal.
[2](1938) 60 CLR 336. See also Crime & Misconduct Commission v Assistant Commissioner JP Swindells & Ors [2009] QSC 409 and DA v Deputy Commissioner Ian Stewart [2011] QCATA 359.
Background to the disciplinary charge
The words purportedly stated by Inspector Flori referred to in application 310/10 relate to the Coomera Floods (in January 2010). Mr Newman refers to an ‘action’, ‘outcome’ and ‘comment’ in respect of the Coomera Floods – the words appear in the context of a ‘comment’ made by Inspector Flori – that he (Inspector Flori) stated that Mr Newman ‘[displayed] such decisive management and leadership of both QPS and external agency staff’.
Mr Newman had previously applied for other positions in the QPS being application numbers 78/10 (closing date of 22/02/2010) and application 265/10 (on 26/06/2010). Application 78/10 was referred to by the investigating officer during the interview with Mr Newman on 15 April 2011 because it contains a comment attributed to Inspector Flori in relation to the Coomera Floods (in January 2010) as follows:
Comment: ‘Doc on behalf of the A/C and myself I want to congratulate you for stepping forward yesterday and displaying magnificent resolve and resilience in leading your staff under the most trying of conditions’ Inspector S FLORI DO Coomera
Mr Newman relies on the contents of application 265/10 and submits that it is relevant because it (application 265/10) contained the same words (save for some minor changes) in an ‘example’ and ‘comment’ made by Inspector Flori in relation to the Coomera Floods in January 2010 that was also used in application 310/10. Application 265/10 was submitted before application 310/10. Mr Newman submits that it is also relevant because Inspector Flori (in new evidence relied upon by Mr Newman) refers to application 265/10 in his unsworn statement dated 31 July 2012 – Inspector Flori states that the words purportedly stated by him were ‘adopted’ by him in application 265/10 in 2010; and with the adoption of the words as stated in application 265/10 Mr Newman would then be capable of relying upon the words in respect of his further application 310/10.
Did Inspector Flori previously adopt the words used in application 310/10?
I do not accept Mr Newman’s submission that the new evidence being the unsworn statement of Inspector Flori dated 31 July 2012 is proof that he (Inspector Flori) did adopt the words as stated in the application 310/10 on the basis that Inspector Flori had previously adopted the words in respect of application 265/10 (save for some minor changes).
Inspector Flori during the interview with the QPS gave evidence in response to being questioned about the ‘Coomera Floods’ as referred to in application 310/10 that he did not remember making a comment to Mr Newman. Inspector Flori states[3]:
Yeah. I do, I do remember making a comment to him umm and he did put forward an extraordinary effort and did show some outstanding leadership, but from reading this, I, it would be my best recollection that my words stopped at the word conditions and that the bit that he’s added would be displaying such decisive management and leadership both QPS and external agency staff, I have no recollection of saying that nor would I ah, have any knowledge of it, because he performed duties at Murphy’s Creek.
[3] Section 21 material, p 229.
I have considered the submissions made by Mr Newman in relation to the way in which Inspector Flori was questioned by the QPS – Inspector Flori was told that Mr Newman had already admitted that the words had been ‘fabricated’ and that he (Inspector Flori) had not actually said those words. Inspector Flori is however an experienced police officer and although the question asked was clearly leading in a way that it was to elicit a certain response from him, Inspector Flori had every opportunity to consider the question and respond accordingly.
I have also considered Inspector Flori’s response (to the investigating officer) that he referred to Mr Newman performing duties at ‘Murphy’s Creek’ and the investigator (for the QPS) did not attempt to clarify Inspector Flori’s response by re-directing him back to the example provided in application 310/10 which relates to the Coomera Floods. I am satisfied that Inspector Flori had every opportunity to clarify his response – he was asked by the investigating officer to read the comment relating to Coomera Floods. Inspector Flori has also given evidence (during the interview) that he has ‘no recollection’ of saying ‘the words’ although this statement was made in relation to duties performed at Murphy’s Creek.
The Tribunal has also considered the statement of Inspector Flori – in the context of his evidence given during the QPS interview. Inspector Flori stated that his practice in relation to providing a referee report in support of another police officer’s application for a position within the QPS is to ‘skip read’ the application. This is relevant because Inspector Flori was Mr Newman’s referee for application 310/10. Inspector Flori states[4]:
…whenever I get a request for a referees report, the first thing I do is ask the applicant to send me a copy of the application they applied ah and then what I do is I skip read the application ah, put a lot of reliance on the integrity of the selection umm process in that the applicant would not be umm putting down anything that’s not true, in fact they sign and declare that at the end of the application that that’s the case…
so my practice is and umm, and ha, has always been that I skip read umm the application, locate the locations are relevant under my command, because a lot of the ones I do umm have related experiences outside of Coomera District or pre commencement of our District, I look at the ones that are relevant to us and I give them a general read to make sure that umm, they’re just not out and out lies, or its fabrication and then umm do a referee report accordingly based on the criteria ah in each KSC and there’s only one question on each referee’s report says you know ah, I forget the exact wording, but its something like are you satisfied that the application is accurate and you just tick yes or no
[4] Section 21 material, p 230.
I have also considered the new evidence relied upon by Mr Newman in particular the emails exchanged on 21 June 2010 and 29 June 2010 (between Mr Newman and Inspector Flori) in relation to application 310/10 referred to in Inspector Flori’s statement. Inspector Flori states:
The email is attached to this statement where I do now recall replying to Sergeant Newman that I was, at that time, part way through reading his application and any words or comments attributed to me
The email sent by Inspector Flori to Mr Newman (by reply) states that he is ‘halfway through it’. The Tribunal was referred to an email sent by Mr Newman to Inspector Barry (the respondent) on 13 February 2012 attaching (purportedly) a copy of application 310/10. The attachment (in the email) is identified as ‘OIC Traffic Branch Coomera 310-2010-DRAFT.zip’ and is, on Mr Nicholson’s submission (on respondent’s behalf), in fact application 265/10 and not application 310/10. The Tribunal was also referred to the fact that the same attachment (as identified) is referred to in the email sent to Inspector Flori (by Mr Newman) on 21 June 2010. It is submitted by Mr Nicholson that this is proof that Inspector Flori was in fact halfway through reading application 265/10 and not application 310/10 on the basis that application 265/10 was emailed (as an attachment) by Mr Newman on 21 June 2010 and Inspector Flori replied (by email) on 29 June 2010 that he was ‘halfway through it’. This evidence being the email sent to Inspector Barry with (with the attachment) needs to be considered in the context of Inspector Flori’s statement (the new evidence).
Inspector Flori (in his statement) also refers to having adopted the ‘comment’ in Mr Newman’s previous application 265/10 which he had ‘read and adopted’ and had the investigating officer from the QPS said to him that the comment he was being questioned was ‘in relation to the Coomera Floods and that [he] had previously adopted those comments in 265/10, [he] would have been able to clarify [his] response’. It is clear from the transcript of the QPS interview that the investigating officer did refer Inspector Flori to the Coomera Floods (at first instance) and Inspector Flori in his response has made reference to Murphy’s Creek. Notwithstanding the fact that Inspector Flori has responded with reference to Murphy’s Creek (during the QPS interview) he replies that he does not remember ‘making a comment’ and states that if Mr Newman has ‘admitted it’ then he (Mr Newman) ‘is right’.
I do accept that there is a passage of time in that the Coomera Floods occurred in 2010 and the interview with the QPS took place on 13 May 2012. There is, however, no evidence before me, other than Inspector Flori’s unsworn statement, to support Inspector Flori’s evidence that he had previously adopted the words used in application 310/10 (which also appear in application 78/10) on the basis that he had approved and adopted the words stated in application 265/10. The only evidence before me in support of Inspector Flori’s statement that he had approved application 265/10 (and the words stated), is Inspector Flori’s email dated 29 June 2010 (to Mr Newman) in which he states he is ‘halfway through’ the application. I am not (otherwise) satisfied that Inspector Flori was referring to application 3010/10 in the email on the basis that the attachment (to the email) may have been application 265/10 and not application 310/10.
Is the conduct proven?
Mr Newman’s submission made at the hearing that the Tribunal should draw the reasonable inference that the words as stated in application 310/10 (save for some minor changes) were adopted by Inspector Flori on the basis of the emails exchanged (on 21 and 29 June 2010) and given that some minor changes were made to application 310/10, Inspector Flori has therefore read application 265/10 and approved it with minor changes, is rejected. Mr Newman, when questioned by the QPS about the comments and words used in application 78/10 (by Inspector Flori) in particular the words ‘decisive management and leadership’ (as it appears in ‘inverted commas’) told the investigating officer that he had ‘extended it’[5] meaning the words. Mr Newman states:[6]
…you’re under that much pressure to try and make it all look you know, look as good as it is, use better words, use this, use that, you know there are certain words which are better than others and whatever else, and, you know if I can make the comments slightly better, knowing that so long as I don [sic], well not knowing, but w [sic], you know, feeling that you know so long as I don’t sort of you know change the context of what the boss has said, if I add a word or don’t add a word, I don’t think it’s going to be you know, detrimental or whatever else…
…I have to concede the fact that, yeah I, I used more words, and if that’s changed the context, then yes I’ve changed the context
[5] Section 21 material, p 134.
[6] Section 21 material, p 134.
When questioned (during the interview) as to whether the statement attributed to Inspector Flori by Mr Newman was a ‘truthful comment’, he replies:[7]
Yeah, nah well, I, I, I don’t need to look at it, I’d have to say that umm, I don [sic], well, I’d have to concede to the fact that, that I probably added to it Sir, yes, and therefore those words were probably not used.
[7] Section 21 material, p 135.
Mr Newman clarifies his response during the interview to say that in relation to the statement made by Inspector Flori it was in ‘general terms’ ‘all true’ but the words ‘decisive Management and leadership of both QPS and external staff’ were not comments made by Inspector Flori. Mr Newman provides an explanation as to why he ‘put them [the words] in there’[8]:
Pressure to, pressure to, you know, fulfil the, you know, the need of the criteria to...
Oh, to gain, it’s not really a matter of gaining anything, I guess the point was that the [key selection criteria] requi [sic], you know, I think draws on that, you know, utilise [sic], or us dealing with external agencies which I did on that day, because I was dealing with other people outside the QPS and I’ve conceded to the pressure of umm, you know, adding it because it would fit better to the criteria.
[8] Section 21 material, 136.
Again Mr Newman was questioned by way of clarification as to whether ‘those’ words were said by Inspector Flori and Mr Newman responded saying ‘No Sir, he didn’t say those words’[9]. Mr Newman further states that he did not intend to be ‘deceitful’ or to ‘change what actually happened on the day or the work that was done’ but he does concede that Inspector Flori ‘did not say those last words’.[10] Mr Newman was also questioned about whether the addition of those words would (as suggested) make his application ‘look better’ for the purposes of shortlisting and selection and Mr Newman responded saying that he would not ‘go that far’ and the example stated was (in effect) ‘done’ by him. Mr Newman was directed (in the interview) to the fact that one of the key selection criteria for the advertised position was ‘demonstrated ability to effectively lead and supervise subordinate staff’ and that his response being the statement made by Inspector Flori was in relation to that particular key selection criteria. Mr Newman did not dispute that the key selection criteria was as stated on the application 310/10; and that ‘those’ words as purportedly stated were ‘untruthful’.
[9] Section 21 material, p 137.
[10] Section 21 material, p 138.
Mr Newman may have demonstrated outstanding skills in respect of the Coomera Floods in 2010 but the charge (as presented by the QPS) states that Mr Newman submitted an application for a gazetted position that contained false and misleading information having declared that the information was (in effect) correct and complete – Mr Newman has on 15 April 2011 conceded that his application 310/10 contained words which were ‘untruthful’. The fact also remains that the words purportedly stated by Inspector Flori as they appear on application 310/10 are relied upon (as a statement) in response to the key selection criteria necessary for consideration of the application. In particular, Mr Newman’s demonstrated ability to effectively lead and supervise subordinate staff.
I have also considered the new evidence relied upon by Mr Newman in particular the statement of Inspector Flori and the supporting documents – the email sent by Inspector Flori to Mr Newman. Inspector Flori states in the email that he is halfway through reading the application 310/10. The email should also be considered in the context of Inspector Flori’s evidence given during the QPS interview in that it is his practice to ‘skip read’ applications referred to him for the purposes of providing a reference. I can not be satisfied to the requisite standard based on the evidence before me: Mr Newman’s evidence and the new evidence relied upon, that Inspector Flori had previously read and adopted the words (namely the comments made by him) in application 310/10 relied upon by Mr Newman to satisfy the selection criteria necessary for the position (advertised).
Is the conduct misconduct?
Mr Newman does not dispute that if the conduct is proven then it is misconduct for the purposes of the Police Service Administration Act 1990. I am satisfied that the conduct is proven based on the direct evidence before the Tribunal in particular the evidence given by Mr Newman during the QPS interview during which Mr Newman (himself) concedes that he has effectively added words to the comments purportedly stated by Inspector Flori.
Mr Newman having served as a police officer for some fifteen years is no stranger to the nature and effect of a declaration particularly a declaration attached to an application for a senior position in the QPS – Mr Newman has previously applied for other positions. The wording of the declaration on application 310/10 is not ambiguous and provides: ‘if successful in this application I acknowledge that the contents of this document may be provided on request to any officer eligible to review my promotion/transfer’. The effect of ‘adding words’ to a direct comment referred to as a ‘quotation’ in the application 310/10 is that it (the words in the example) satisfied one of the key selection criteria necessary for the position. Mr Newman conceded during the interview that the words were not correct – this goes to the very purpose of the declaration, that the information provided is ‘correct and complete’ to the best of the applicant’s ‘knowledge’.
I acknowledge, in considering the application, that Mr Newman’s conduct in the Coomera Floods may have been outstanding but his conduct by ‘adding words’ to an application for a senior position in the QPS must be considered in the context of the standard expected of a police officer by members of the community particularly in circumstances of ‘temptation’, as held in the decision of Deputy Commissioner Stewart v Dark[11]. Mr Newman conceded during the interview that he was under pressure to try and make the application ‘look good’ and the effect of adding words to a statement purportedly made by a supervising officer is (the effect of which) to satisfy the key selection criteria. It was held in Deputy Commissioner Stewart v Dark[12]:
The great majority of people behave with propriety and integrity in the absence of stress, adversity or temptation. However, it is often when a person is tested by such conditions and circumstances that his character is fully revealed. Police officers are commonly placed in situations of considerable stress and may also be subjected to strong temptation from time to time. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.
[11] [2012] QCA 228.
[12] [2012] QCA 228, [35].
I am satisfied that the charge is substantiated based on my findings. The application in so far as it relates to a finding (on review) of the charge should therefore be dismissed and the respondent’s decision made on 28 February 2012 in relation to the charge being substantiated should be confirmed.
Is the sanction imposed excessive?
In relation to the sanction Mr Newman relies on numerous comparatives to support his submission that a sanction of reprimand is appropriate in all of the circumstances.
I accept the submissions made on behalf of the respondent that the effect of the position (if successful) was to obtain a higher rank, increased salary and superannuation. I have considered the submission made by Mr Newman that in relation to these proceedings he has effectively lost his position (applied for) and these proceedings have impacted on his reputation as a police officer and a reduction in salary.
The purpose of discipline and the principles to be applied by the Tribunal are set out in s 219A of the Crime and Misconduct Act 2001 and in exercising its review function, the Tribunal must make its own determination as to the appropriate sanction to be imposed having regard to the purpose of disciplinary proceedings and all of the circumstances.[13]
[13] Aldrich v Ross (2001) 1 Qd R 235.
I have also considered the comparatives referred to in these proceedings:
Matter
Rank
Particulars
Outcome
010/02999
S/Con
Officer submitted assignment which was plagiarised from another officer’s assignment.
Reprimand
009/01318
Con
The subject officer was subjected to the MR process for plagiarism of a CDP assignment. The subject officer subsequently submitted a further plagiarised assignment however resigned from the Police Service and no action was taken. The Subject Officer rejoined the Police Service and submitted a further CDP assignment which was again detected as being plagiarised. A thorough and complex examination of the files was conducted confirming the Subject Officer’s conduct.
Reprimand
011/00795
Const
Provided false and misleading information on lateral transfer.
2 penalty units
10/03180
S/Const
Negligently submitted an overtime return relating to speed camera overtime which was false and commenced speed camera overtime whilst still rostered to perform usual duties.
Reprimand
[sic]479
S/Const
Knowingly made entries that were false in the Toowoomba scenes of crime accoutrements register.
Reprimand
08/0178
A/S/C
1+2. Untruthful to C/) (2) regarding involvement in a pursuit 3. Failed to inform DDO that sig event message was inaccurate and did not disclose involvement in a pursuit.
1. 2PU 2. 2PU 3. Reprimand
09/03017
S/Const
The subject officer included false information in his resume which misled the panel.
Reprimand
References [sic] 479 and 09/03017 are similar to the circumstances of this matter – both refer to ‘false’ entries and information (respectively) with a sanction of reprimand. I accept Mr Newman’s submission that the sanction of reprimand is appropriate in all of the circumstances based on the comparatives before the Tribunal, the number of years Mr Newman has served in the QPS and the numerous references which attest to the various contributions he has made to his community in his capacity, as a serving member of the QPS. Inspector Flori during the QPS interview also attests to Mr Newman’s dedication and loyalty as a police officer.[14]
[14] Section 21 material, p 230.
Based on my findings in relation to a review of the sanction imposed and having found that the charge is substantiated, the respondent’s decision in relation to the sanction being a deduction in salary or wages of an amount equivalent to a fine of two (2) penalty units should be set aside and a sanction of reprimand imposed.
2