O'Keeffe v Deputy Commissioner Rynders

[2010] QCAT 109

CITATION: O’Keeffe v Deputy Commissioner Rynders [2010] QCAT 109

PARTIES:   DAMIAN JOHN O’KEEFFE

v

DEPUTY COMMISSIONER KATHY RYNDERS

APPLICATION NUMBER:            MSR001-09  

MATTER TYPE:   

HEARING DATE:   12 November 2009

HEARD AT:   Brisbane

DECISION OF:   Mr P Richards

DELIVERED ON:   3 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Matters 1 - 3
  Confirm the Decisions.

CATCHWORDS:  Misconduct Tribunal – Police Officer dismissed from QPS – knowingly giving false testament to CMC hearing – facilitated social visit for serving prisoner – no official purpose for visit – approach by Tribunal on appeal to guidance in disciplinary action – sanction imposed manifestly excessive – suspension of order for dismissal with respect to matter 2 refused.

APPEARANCES and REPRESENTATION (if any):

Mr. T. Gardiner instructed by Byrne Legal Group (Appellant)
Mr. R.P. Devlin SC instructed by Solicitor for QPS (Respondent)

REASONS FOR DECISION

Introduction

1. The three matters, the subject of this appeal, arise out of a disciplinary hearing conducted on 6 October, 2008.  The matters, the subject of that hearing and this appeal, are as follows:- “Matter 1: Operation Capri (Direction Notice of 8 September 2008)

   That on the 26^th day of February 2004 at Brisbane your conduct was improper in that you:

   (a) took Christopher Lee HOWARD to Unit 4/16 Grasspan Street Zillmere without an official purpose related to the performance of your duties as a member of the Queensland Police Service

   [Sections 1.4 and 7.4 of  Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990]

   Further and better particulars

   Investigations have identified that the prisoner Christopher Lee Howard was removed from the Wolston Correctional Centre on 26 February 2004 by Detective Sergeant Skillen and taken to the Armed Robbery Unit (ARU) where he was interviewed by Skillen and Plain Clothes Senior Constable Riles.  During the course of the interview Howard admitted to an armed robbery of a Post Office at Red Hill with a co-offender Aaron Spiers.  He also stated in this interview that clothing worn by him during the commission of this offence may be at his mother’s residence.  At the conclusion of the interview:

   ·you and former Detective Sergeant Tuffield transported Howard from the ARU to his mother’s address at Unit 4/16Grasspan Street Zillmere where you allowed personal contact between Howard, his mother Karen Elizabeth Howard and other family members and friends;

   ·there was no official purpose for taking Christopher Lee Howard to his mother’s address at Unit 4/16 Grasspan Street Zillmere; and

·Christopher Lee Howard states he visited his mother on 26 February 2004 after confessing to an offence of armed robbery.

Matter 2: Operation Capri (Direction Notice of 8 September, 2008)

That on the 11^th day of October, 2006 and on the 23^rd day of August, 2007 at Brisbane your conduct shows unfitness to be or continue as an officer in that you:

(a)knowingly gave false sworn testimony during investigative hearings conducted by the Crime and Misconduct Commission when stating that a search was conducted for clothing at Unit 4/16 Grasspan Street, Zillmere on the 26 February 2004

[Sections 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990]

Further and better particulars

Investigations have identified that you gave sworn evidence in Crime and Misconduct Commission investigative hearings on 11 October 2006 and 23 August 2007 in relation to your knowledge of the removal of prisoner Christopher Lee Howard from the Wolston Correctional Centre and subsequent personal contact between Howard and his mother Karen Elizabeth Howard at Unit 4/16 Grasspan Street Zillmere on 26^th February 2004.

During these hearings you were untruthful when you stated:

·the reason for attending Unit 4/16 Grasspan Street Zillmere was for the purpose of conducting a search for clothing; and

·you conducted a search of Unit 4/16 Grasspan Street Zillmere.

Matter 3: Operation Capri (Direction Notice of 8 September, 2008)

That on the 8^th day of May 2008 at Brisbane your conduct was improper in that you:

(a) were untruthful to Detective Sergeant Cameron Preston when you stated you conducted a search for clothing at Unit 4/16 Grasspan Street Zillmere on 26 February, 2004

[Section 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990]

Further and better particulars -

Investigations have identified that a discipline interview was conducted between yourself and Detective Sergeant Cameron Preston on 8 May 2008 in relation to your knowledge of the removal of Christopher Lee Howard from the Wolston Correctional Centre and subsequent personal contact between Howard and his mother Karen Elizabeth Howard at Unit 4/16 Grasspan Street Zillmere on 26 February 2004.  During this interview you were untruthful when you stated:

·the reason for attending Unit 4/16 Grasspan Street Zillmere was for the purpose of conducting a search for clothing; and

·you conducted a search of Unit 4/16 Grasspan Street Zillmere.

1. The Respondent found the three matters to be substantiated and the following sanctions were imposed:

   “Matter 1: (Operation Capri) - A reduction of one (1) paypoint from Sergeant paypoint 2 to Sergeant paypoint 1.

   Matter 2: (Operation Capri) - Dismissed.

   Matter 3: (Operation Capri) - A reduction of one (1) paypoint from Sergeant paypoint 2 to Sergeant paypoint 1.

   [ss 5 and 10(c) of the Police Service (Discipline) Regulations 1990]

   These sanctions are to take effect immediately.

THE APPEAL:

1. The matter proceeded in this Tribunal on 12 November, 2009.   Prior to the hearing the parties jointly filed a List of Agreed Facts and a List of Contested Facts.  On coming to my decision in this matter, I have had regard to the material filed in the Registry, where relevant, the Appeal Record, the Outlines of Argument, the List of Agreed Facts, as well as the oral argument me on 12 November, 2009.   The Appellant sought leave in his Outline of Argument to amend his grounds of appeal to appeal against the sanction of dismissal ordered in relation to the second matter.  The Respondent does not oppose the Application.

1. In coming to this decision, I have also had regard to the material tendered to the Tribunal.

1. The following grounds appear in the Appellant’s Notice of Appeal:

   The grounds upon which this appeal are brought are that the finding of the Respondent that:

   Matter 1 was substantiated, was wrong in fact and in law, in that:-

   (i) in all the circumstances, the findings of the Respondent were contrary to and against the weight of the evidence;

   (ii)further and/or in the alternative, the Respondent erred in making the findings of fact in that the Respondent:-

   (a)      took into account irrelevant considerations;

   (b)failed to fully take into account relevant considerations;

   (c)failed to take into account material relevant to the matter;

(d)placed undue weight on material.

Matter 2 was substantiated, was wrong in fact and in law, in that:-

(i) in all the circumstances, the findings of the Respondent were contrary to and against the weight of the evidence;

(ii)further and/or in the alternative the Respondent erred in making the findings of fact in that the Respondent:-

(a)      took into account irrelevant considerations;

(b)failed to fully take into account relevant considerations;

(c)failed to take into account material relevant to the matter;

(d)placed undue weight on material.

Matter 3 was substantiated, was wrong in fact and in law, in that:-

(i) in all the circumstances, the findings of the Respondent were contrary to and against the weight of the evidence;

(ii)further and/or in the alternative the Respondent erred in making the findings of fact in that the Respondent:-

(a)      took into account irrelevant considerations;

(b)failed to fully take into account relevant considerations;

(c)failed to take into account material relevant to the matter;

(d)placed undue weight on material.

THE LAW:

1. Section 16 of the Misconduct Tribunals Act 1997 (MTA) invests a Misconduct Tribunal with jurisdiction to hear and decide an appeal against a reviewable decision (see Section 15 MTA). 

2. Relevantly, a reviewable decision as defined includes:

   (b) a finding mentioned in the Police Service Administration Act 1990 (“PSAA”).

1. Section 23(4) of the MTA prescribes the manner in which an appeal against a reviewable decision is to be approached:

   If the Tribunal is exercising appellate jurisdiction the appeal is by way of re-hearing on the evidence (original evidence) given in the proceeding before the original decision maker (original proceeding).

1. Section 26 of the MTA is as follows:-

   Misconduct Tribunal Decisions - Appellate Jurisdiction

   1.A Misconduct Tribunal exercising appellate jurisdiction may make the following Orders:-

   (a)Confirm the decision appealed against;

   (b)Set aside the decision and substitute another decision;

   (c)Set aside the decision and return the matter to the original decision maker with the directions the Tribunal considers appropriate.

   2.In substituting another decision, the Misconduct Tribunal may impose any punishment provided for on a finding of the charge being proved even though the original decision maker’s power to impose the punishment may have been restricted. 

   3.The decision of the Tribunal is final and conclusive and is binding on, and must be given effect to, by all persons concerned.

1. It is clear from Thomas JA’s decision in Aldrich v Ross[1]:-

   [1] (2001) 2 Qd R 235

   1.The nature of the appeal depends on the terms of the statute conferring the right of appeal.

   2.A Misconduct Tribunal is required to make its own decision on the available evidence rather than merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense against the exercise of a discretion.

   3.While considerable respect and weight has to be paid to the perceptions of the [prescribed officer] hearing the original disciplinary action as to what is needed for the maintenance of internal discipline it does not follow that a [prescribed officer] hearing the original disciplinary action brings to bear the same perception of public interest as that of an outsider.  Further the purpose of misconduct and discipline proceedings within the Police service is -

   (a)Protection of the public;

   (b)Maintenance of public confidence in the service;

   (c)Maintenance of integrity and the performance of police duties.

   4. With respect to the purpose of the proceedings in issue the provision of some outside surveillance (such as the ability to review the disciplinary action and sanctions imposed by prescribed officers) is hardly surprising in such a context.  The provision of a system which permits one external public review of the disciplinary decision (such as the present) is not only the protection against a wrong or unacceptable decision it is also the provision of a source which can be expected to bring a perspective to bear from the public’s point of view.

2. In the past it has been recognised that:

   (a)The purpose of the jurisdiction of this Tribunal is protective in nature;  see New South Wales Bar Association v Evatt[2] and Purnell v The Medical Board of Queensland[3]; and

   (b)That accordingly disciplinary proceedings have been consistently viewed as not punitive in nature (although it can be recognised that there may be some deprivation of the person disciplined);  see Clyne v New South Wales Bar Association [4] and Ziems v The Prothonotary of the Supreme Court of New South Wales [5] and The Queen v White, Ex Parte Burns^[6].  Consequently the purpose of disciplinary proceedings is not to individually punish the person who is the subject of them.  The relevant considerations are not limited to those considerations that personally affect that person.

   [2] (1968) 117 CLR 183-4

   [3] (1997) 1 Qd R 362

   [4] (1960) 104 CLR 86, 201-2

   [5] (1957) 97 CLR 279 at 286

   [6] (1963) 108 CLR 665 at 60

1. The relevant standard of proof is the civil standard consistent with the decision in Briginshaw v Briginshaw^[7] and the requirement for a sliding scale of “reasonable satisfaction” determined by the seriousness of the charges.

   [7] (1938) 60 CLR 336

1. The following facts are agreed between the parties:

Statement of Agreed Facts

Facts

1.That on the 26^th February 2004, Detective John Damian O’Keefe [sic] and Detective Tuffield took Christopher Howard to Unit 4/16 Grasspan Street, Zillmere.

2.The matters before the Tribunal arose out of Operation Capri involving the removal of prisoners from custody by police and permitting prisoners contact with family in exchange for co-operation including confessions.

Matter (i)26^th February, 2004: Taking Christopher Howard to Unit 4/16 Grasspan Street, Zillmere without an official purpose.

Matter (ii)11^th October 2006 and 23^rd August 2007: providing false testimony at a CMC investigative hearing, when stating that a search was conducted at Unit 4/16 Grasspan Street, Zillmere, for clothing.

Matter (iii)8^th May 2008: untruthfulness in stating to Detective Sergeant Cameron Preston that a search for clothing was conducted at 4/16 Grasspan Street, Zillmere.

3.Prior to 26^th February 2004 O’Keeffe had never met or had any contact with Christopher Lee Howard.

4.O’Keeffe had had no involvement in the removal (or the Removal Order Application prior thereto) of Christopher Howard on 28^th January 2004. [8]

[8]          Reasons, p.44 and 46

5.O’Keeffe had no involvement in the Record of Interview of Howard by Detectives Skillen and Jorgenson on 28^th January 2004. [9]

[9]          Reasons, p. 44

6.O’Keeffe had no involvement in the Application to a Magistrate on 24^th February 2004 for the removal of Christopher Howard. [10]

[10]         Reasons, p. 46

7.O’Keeffe had no involvement in the actual removal of Christopher Howard by Detective Skillen to the Armed Robbery Unit on 26 February, 2004; [11] nor for the return of Howard to Wolston Correctional Centre. [12]

[11]         Reasons, p. 47

[12]         Reasons, p. 50 last paragraph

8.O’Keeffe had no involvement in the Record of Interview that took place at the Armed Robbery Unit between Christopher Howard and Detective Skillen and Plain Clothes Snr Constable Riles on 26^th February 2004. [13]

[13]         Reasons, p. 47

9.There is no evidence that O’Keeffe listened to (or that he had any reason or motivation to listen to) Christopher Howard’s interview before Howard’s being transported to Zillmere.

10.During the course of the Record of Interview between Howard and Skillen, Howard admitted to an armed robbery of the post office at Redhill [sic] with a co-offender Spiers.  He also stated the clothing worn by him during the commission of this offence may be at his mother’s residence. [14]

[14]         Reasons, p. 47

11.Skillen was the principal investigator. [15]

[15]         Reasons, p. 51

12.Recorded phone calls on 29 January 2004 and 25^th February 2004 corroborate Howard’s claim that Skillen made an arrangement with him to take him to visit his mother when he was next removed from prison however, O’Keeffe was not a party to this arrangement. [16]

[16]         Reasons, p. 47 para. 2

13.There is no evidence that O’Keeffe was involved in any discussions  or arrangements as to the taking of Howard to the Grasspan Street, Zillmere address other than his being requested, by Skillen, to perform that task.

14.Approximately 2 hours prior to O’Keeffe’s being dispatched to the Zillmere address, Howard informed Skillen in a record of interview that there was chance that there was clothing to link Howard with the armed robbery [of the Red Hill Post Office] at the Zillmere unit. [17]

[17]         Reasons, p. 47

15.Skillen, in an interview with CMC investigators on 18^th March 2008, demonstrated limited recollection of Howard’s removal and transport to his mother’s residence on 26^th February 2004 [18] despite:-

[18]         Reasons, p. 51

(i)    being the principal investigator; [19]

[19]         Reasons, p. 51

(ii)   applying for the removal order for Howard for 28^th January, 2004; [20]

[20]         Reasons, p. 44

(iii)   removing Howard from Wolston Correctional Centre on 28^th January, 2004; [21]

[21]         Reasons, p. 44

(iv)     interviewing Howard about armed robberies on 28^th January 2004; [22]

[22]         Reasons, p. 44

(v)   a phone-taped conversation between Howard and his mother on 29^th January 2004 showed an expectation that he would be removed from prison, in the near future by Skillen and taken home to visit his mother; [23]

[23]         Reasons, p. 46 (top paragraph)

(vi)     applying for the removal order for Howard on 25^th February 2004 - the day before the subject removal; [24]

[24]         Reasons, p. 46 (2^nd paragraph)

(vii)    forwarding a fax to Wolston Correctional Centre to advise of the Removal Order; [25]

[25]         Reasons, p. 47

(viii)   interviewing Howard at the Armed Robbery Unit; [26]

[26]         Reasons, p.47 (paragraph 3)

(ix)     attending Wolston Correctional Centre to collect Howard on 26^th February 2004. [27]

[27]         Reasons, p. 47 (paragraph 3)

16.Janine Howard - the aunt of Christopher Howard, told investigating officer that O’Keeffe “had a look around” the outside of the unit. [28]

[28]         (Brief, p. 401 line 105)

17.O’Keeffe did not make any diary or notebook entries with regard to the transport of Howard to Zillmere or the search of the Zillmere unit. [29]

[29]         Reasons, p. 71

18.O’Keeffe did not tape record the search. [30]

[30]         Reasons, p. 71

19.Skillen has made no entry in his Official Diary indicating there was a search conducted at 4/16 Grasspan Street, Zillmere or of the transport of Christopher Howard to that address. [31]

20.Skillen resigned from the QPS on the morning his disciplinary decision (Findings and Reasons) was due to be handed down by DC Rynders on 30^th March 2009.

[31]         Reasons, p. 76

1. The Appellant contends in his Outline of Submissions that the issue with respect to the first matter is whether O’Keeffe’s attendance at Unit 4/16 Grasspan Street, Zillmere on 26^th February, 2004 was for an official purpose.   He further submits that the issue in respect of Matters 2 and 3 was whether O’Keeffe conducted a search for clothing at Unit 4/16 Grasspan Street, Zillmere on 26^th February, 2004.  “Official purpose” is not defined in the Police Service Administration Act 1990 (PSAA) or the Police Service (Discipline) Regulations 1990 (hereinafter referred to as the Regulations).   He submits that the resolution of these three matters rests upon findings as to O’Keeffe’s state of mind, that is, his knowledge at the time he attended 4/16 Grasspan Street, Zillmere on 26^th February, 2004.   He submits that the Respondent made findings during the disciplinary hearing with respect to other witness’ state of knowledge where there was evidence that knowledge had not been shared with O’Keeffe or where there is no evidence as to whether O’Keeffe had that state of knowledge and impermissibly imputed that knowledge to O’Keeffe.

1. To support his submission in that regard, the Appellant refers to the decision in C v Condor and Anderson-Barr [32].  That case involved relevantly the Second Respondent’s reliance in part about an investigating officer’s assessments about the credibility of witnesses included in a report and relied upon by the First Respondent (Condor) who was charged with the responsibility of deciding whether there had been misconduct.   Senior Member Freeburn SC cautioned about the need to be careful in relying on such a report and said as follows:

   [32]         (2007) QMT 7

   “With respect to the Inspector’s views about the credibility of various witnesses set out in his report:

   The danger is that the opinions or even emphasis or filtering may be perpetuated.  Surprisingly there are very few witness statements.  That was the case in evidence before the Deputy Commissioner and it is the case before this Tribunal.  Even the new evidence proposed comprises interview transcripts rather than witness statements.”

He went on to say:

“I think there is merit in … criticism … that Deputy Commissioner Condor made findings based not on the original evidence of the witnesses - such as witness statements - but on Inspector Emzim’s account or paraphrasing of the interviews of witnesses.   Deputy Commissioner Condor’s findings are based, in turn, on Inspector Emzim’s findings.   The Deputy Commissioner does not seem to have had regard directly to any interviews or witness statements.   Instead he has relied on Inspector Emzim’s summary of the evidence.   So whilst I am obliged to have regard to the Deputy Commissioner’s original decision, I do so with little caution because of the indirect way in which he has assessed the evidence.”

1. The facts in that case are distinguishable from this case but the Tribunal nevertheless takes on board the observations about the dangers of impermissible reasoning.

1. I agree that in assessing the facts of this case, it is necessary to apply the civil standard of proof - on the balance of probabilities.   That standard is to be applied having regard to the principles stated by Dixon J. in Briginshaw v Briginshaw:

   “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.  No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.   Fortunately, however, at common law no third standard of persuasion was definitely developed.  Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such maters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony; or indirect inferences.  Everyone must feel that, when, for instance, the issue in on which of the two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

   This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability.  It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.  When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”

2. Further, the High Court in Rejfek v McElroy[33] in a joint judgment said as follows with respect to the civil standard of proof:

   “The difference between the criminal standard of proof and the civil standard of proof is no  mere matter of words: it is a matter of critical substance.  No matter how grave the fact which is to be found in the civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceedings to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”

   [33] (1965) 112 CLR 517 at 521

3. That statement, in my view, exemplifies the difference existing between the civil standard of proof even at the higher end of the scale and the criminal standard of proof of proof beyond reasonable doubt.  The fact remains that the standard of proof required in these proceedings is such that the finder of fact has only to be reasonably satisfied. 

1. The Appellant in his Outline rightly points out that this Tribunal is not bound by the rules of evidence and may inform itself of anything in the way it considers appropriate.   It is submitted that s 23 of the MTA does not release the Tribunal from an obligation to apply rules of law in arriving at its decision.   He further submits by reference to a decision of McCutcheon & Anor v The Federal Commissioner of Taxation (2008) 168 FCR 149 that this Tribunal should only refer to relevant evidence when coming to a conclusion about the facts in issue. This issue is considered later in the Decision.

2. In his Outline, the Appellant submits that the only direct evidence with respect to the Appellant’s purpose in going to the residence on 26 February comes from the Appellant and Skillen by whom it is alleged he was directed to attend the residence at Zillmere.   The Appellant seeks to distinguish this evidence from circumstantial evidence and points out that the inferential process with respect to circumstantial evidence is more sophisticated.  Greater care is required in allowing such evidence to constitute proof, especially when the standard of proof is high.  

1. With respect to that submission, the Appellant relies on the decision of Shepherd v The Queen(1990) 170 CLR 573. The Appellant submits that this Tribunal should observe the requirements of natural justice. This is said to consist of essential standards of fairness of the common law.

1. It is argued as a result that the decision be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. As a general rule, conduct alleged against a person must be established by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation.  Relevance is, it is submitted, the first or preliminary test of admissibility and it is a test of rationality as well as fairness.

1. This Tribunal is charged with deciding an appeal against a reviewable decision.   The Act prescribes the manner in which such an appeal is to be approached.   It is “by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision maker (original proceeding).” 

1. The touchstone of a rehearing on the original evidence is whether or not at the original hearing, the Appellant was accorded natural justice.  Another issue is whether or not the original evidence given in the proceeding before the original decision maker was relevant and probative of the matters, the subject of the disciplinary action.

1. The Tribunal is bound to give considerable respect and weight to the perceptions of the Respondent who heard the original disciplinary action.  It should be borne in mind that the reason this Tribunal must give considerable respect and weight to the Respondent’s perceptions is that the Respondent, being a senior member of the Queensland Police Service, is experienced in the ways of the Police Service and what is needed for the maintenance of internal discipline within the Queensland Police Service.  It seems to me that undue reliance by this Tribunal on the rules of evidence applied to civil and criminal proceedings in the Courts tends to undermine the terms of the statute conferring the right of appeal and is at odds to some extent with Thomas JA’s decision in Aldrich v Ross.  The Tribunal’s role according to the Act is to rehear the evidence given in the proceeding before the original decision maker.   Given that the original proceeding was a disciplinary hearing, the Respondent decided which evidence was relevant to the disciplinary process.  It is important to understand the nature of the disciplinary process.

1. In Police Service Board v Morris(1985) HCA 9, Brennan J (as he then was) said:

   “The Victoria Police, like other police forces in Australia, is a force governed by legislation which Crockett J in the Full Court appropriately described in these terms:

   “The legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective and efficient organization in which the members are to perform their duties in conformity with a Code so as to afford protection to the community and allow the disciplining of members who breach that Code.”

   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 jeopardise 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.”

2. Further in New South Wales v Fahy (2007) HCA 20, Gleeson CJ said as follows with respect to the New South Wales police force:

   “The Police Service Act prescribes the ranks of police officers within the police service.  Read as a whole, the Police Service Act demonstrated that the evident purpose of the legislation was, as may be expected, to create an hierarchical and disciplined force.”

1. Similar observations may be made about the provisions of the PSAA.  The comments of Brennan J extracted above with respect to internal disciplinary authority and it being the primary and usual means of ensuring, amongst other things, that police do not abuse their powers, are relevant in this case when considering the Appellant’s submissions concerning relevance of evidence.   What is relevant to a senior Police Officer in conducting a disciplinary hearing in terms of evidence may not be relevant to any subsequent criminal proceedings.  For example, experience demonstrates that Police Officers being interviewed by another officer (for example, one attached to the CMC) about alleged offences/misconduct often decline to answer questions and rely on their right to silence.  However once the interviewer lawfully orders the officer to answer questions (for the purpose of investigating breaches of discipline or misconduct) answers are usually supplied albeit under compulsion.  This shows, in my view, that the Police disciplinary process and the rules that apply during the investigative stage and at the hearing stage differ markedly from the rules applicable in the Courts.  This Tribunal should be astute to those differences and bear that in mind when hearing appeals against reviewable decisions.

1. Given that s 23(4) of the MTA prescribes the manner in which this appeal is to be approached, it seems to me that I am constrained by the terms of the legislation in that this appeal is by way of rehearing on the original evidence given in the proceeding before the Respondent.   Bearing in mind the purpose of disciplinary proceedings outlined above, it does not seem to me that this Tribunal is required to make rulings about evidence along the lines that a Court is required to when hearing charges of indictable offences or issues of relevance in civil proceedings. If the original decision maker determined that the original evidence was relevant to the determination of the matter, the only question in this Tribunal is whether or not on the rehearing of that original evidence, this Tribunal:

   (a)confirms the decision appealed against; or

   (b)sets aside the decision and substitutes another decision; or

   (c)sets aside the decision and returns the matter to the original decision maker with the directions the Tribunal considers appropriate.

2. Questions concerning  the rational probative value of evidence and relevance of evidence need to be assessed by reference to the nature of the disciplinary process.  

THE DISCIPLINARY PROCESS WITHIN THE QUEENSLAND POLICE SERVICE:

1. Section 7.4 of the PSAA 1990 (now amended) is as follows:

   “An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the Regulations.”  

1. Section 1.4 of PSAA defines disciplinary action as:

   “Disciplinary action means action taken for misconduct, official misconduct or a breach of discipline.”

2. In this matter the Respondent commenced a disciplinary hearing with respect to the three matters outlined above. Those matters are particularised as amounting to allegations of improper conduct with respect to Matter 1, conduct showing unfitness to continue as an officer with respect to Matter 2 and improper conduct with respect to Matter 3.   It is not in issue that prior to the disciplinary hearing, the Appellant had been directed to attend the hearing and had been supplied with relevant documents relating to investigation into his conduct. 

1. The purpose of the disciplinary hearing according to the provisions of the Act and Regulations was in this case as in all others the consideration of what disciplinary action in relation to the interests of the discipline of the police service, if any, should be taken under the provisions of s 7.4(3) of the PSAA and Regulation 10 of the Regulations.  

1. Section 7.4(3) of the PSAA and Regulation 10 of the Regulations both deal with the range of disciplines that may lawfully be imposed if the relevant conduct, the subject of the disciplinary charges, is substantiated to the relevant standard of proof.  

1. It is implicit in the fact that there was a disciplinary hearing that the Respondent considered the Appellant to be liable to disciplinary action [my underlining] in respect of the alleged conduct which she considered to be misconduct on the ground prescribed (either by the Regulations or by PSAA).

1. The terms “breach of discipline” and “misconduct” are defined in s 1.4 of the PSAA. 

1. Breach of discipline is defined to mean:

   “A breach of this Act, Police Powers and Responsibilities Act 2000 or a direction of the Commissioner given under this Act, but does not include misconduct.”

2. Misconduct is defined as:

   “Misconduct means 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.”

3. In this case, prior to the disciplinary hearing, the alleged misconduct, the subject of the disciplinary action was:

   (a)improper conduct;

   (b)conduct showing unfitness to be or continue to be an officer of the Queensland Police Service; and

   (c)improper conduct.

4. It is significant to consider the background to the disciplinary hearing.  The Appellant was directed to appear before the Respondent for a disciplinary hearing involving disciplinary charges of misconduct arising from two investigations.   The three matters, the subject of this appeal, arose from an investigation called Operation Capri.  Operation Capri concerned a wide ranging  investigation into matters including the removal of prisoners from custody by police and permitting contact with family in exchange for co-operation including confessions.

1. The Appellant attended the disciplinary hearing and was represented by his Solicitor.  Written submissions were provided on 6 October, 2008 along with supplementary submissions dated 10 December, 2008.   The Appellant was accorded natural justice prior to and during the disciplinary hearing.   

1. The Respondent found each of the disciplinary charges of misconduct arising from Operation Capri substantiated.   She found each amounted to misconduct within the meaning of the definition.  

1. The ultimate submission on behalf of the Appellant is that the Respondent’s findings and subsequent order of dismissal with respect to the Appellant was unjustified against the weight of the evidence and amounts to a miscarriage of justice.   It is submitted the penalty imposed of dismissal was manifestly excessive.  I do not accept the submission.

1. It is true to say that the evidence before the Respondent consisted of statements from relevant witnesses and recorded interviews between the Appellant and other police officers as well as evidence taken before hearings of the CMC.   The police disciplinary process is one aimed at according natural justice to a police officer alleged to be guilty of a breach of discipline, misconduct or official misconduct.   The disciplinary process itself is not concerned with the admissibility of relevant probative evidence and/or nice questions of law involving the application of the rules of evidence.  It seems to me that the disciplinary process necessarily involves an investigation into relevant facts and circumstances surrounding allegations of suspected breaches of discipline, misconduct or official misconduct.  What is relevant to such an investigation may not accord with the rules of evidence but may well accord with what is necessary to achieve the aims of internal discipline within the Queensland Police Service. 

1. The Appellant seeks to distinguish direct evidence from indirect evidence.  He submits this Tribunal has to engage in a reasoning process similar to the one undertaken by Courts in cases involving circumstantial evidence.

1. Bearing in mind that the Tribunal is not bound by the rules of evidence and may inform itself of anything in the way it considers appropriate, the ultimate aim is to review the Respondent’s decision to see whether it was a wrong or unacceptable decision.  The Tribunal brings to bear the same perception of public interest as that of an outsider.

THE NATURE OF THIS APPEAL AND THE REASONS FOR THE DECISION

1. The decision involves a rehearing on the original evidence given in the proceeding before the original decision maker.   Matter 1 involves a finding that there was no official purpose in taking Howard to his mother’s address on the day in question.  The Tribunal needs to be satisfied that the Appellant knew that when he took the prisoner to his mother’s address, that there was no official purpose for him doing so.  The Appellant has consistently claimed that a search actually took place.  It is submitted by the Respondent that even if this Tribunal finds, as did the Respondent that the Appellant lied about the search being conducted, it does not automatically follow that he knew that there was no official purpose at the time he took the prisoner to that address.

1. It is submitted that this Tribunal must be satisfied that the Appellant was not, in effect, duped into taking the prisoner under some misapprehension that there was an official purpose to the visit.

1. Matters 2 and 3 involve knowingly false statements both to the Crime and Misconduct Commission and the investigating police officer that a search was conducted for clothing at Unit 4/16 Grasspan Street, Zillmere on 26 February, 2004.   The most serious of these two matters is the allegation that the Appellant gave false sworn testimony during investigative hearings conducted by the Crime and Misconduct Commission.

1. Matters 2 and 3 can be resolved by the determination of whether or not there was a search of those premises carried out by the Appellant on the day in question.  It is said that the determination of whether or not there was a search of the premises on the day in question is a critical intermediate fact (based upon circumstantial reasoning) in determining whether or not there was an official purpose in taking the prisoner to that address on the day in question and consequently, the Appellant’s reason for taking him to that address.

1. Both the Appellant and the Respondent submit that Matter 1 necessarily involves consideration of a circumstantial case from which inferences can be drawn as to the Appellant’s state of mind when he took Howard to his mother’s address.  In her findings and reasons, the Respondent (at page 97) concluded as follows:-

   “I am satisfied having regard to the Briginshaw test that a search was not conducted of those premises as stated by you and the visit appears to have been pre-arranged by Skillen with Howard on 28 January, 2004.  My conclusion is supported by the versions of the witnesses in attendance at that address on the day, which I have referred to above.  Howard did not give evidence in Bradvica’s pre-trial hearing, he received what he describes as, ‘a very lenient sentence, 2 years suspended after serving 1 month for an armed robbery’ and states that he would have made the admissions regardless of the visit to his family.

   I am of the view that the weight of evidence provided in the accounts of witnesses interviewed during the course of this investigation, the lack of supporting documentation and records kept by you, Skillen and Tuffield and the overwhelming evidence to support the visit by Howard to his mother’s residence was arranged between Skillen and Howard before the interview supports my finding  that on 26 February, 2004 your conduct was improper in that you took Christopher Lee Howard to unit 4/16 Grasspan Street, Zillmere without an official purpose related to the performance of your duties as a member of the Queensland Police Service.”

1. In her findings with respect to Matter 1, the Respondent places great weight on the fact that on her view of the evidence the Appellant did not conduct a search of the premises.  She found that the visit was pre-arranged by Skillen with Howard on 28 January, 2004.  She reasons that the search was not conducted because of the versions of the witnesses who attended the address on the day in question. 

1. In view of the preponderance of evidence provided by those people a finding that no search was conducted on that date was clearly open.  To support her findings the Respondent not only relies on the evidence of people who were present when the Appellant and Tuffield went to the address, but draws support from the fact that the Appellant, Skillen and Tuffield kept no records nor does there exist any documentary evidence to support the legitimacy of the visit by Howard to his mother’s residence.

1. One could reasonably expect that if the visit involved a search for evidence corroborative of a serious criminal offence, the police involved would have been astute to record their movements in great detail starting when they left the armed robbery unit (the ARU) and finishing when they delivered Howard back to the correctional centre.  Protestations of incompetence or slackness by the Appellant combined with the other evidence and the lack of documentation kept by his fellow officers all combine to support the Respondent’s finding in my view. 

1. Tuffield’s evidence to a CMC investigative hearing on 30 October, 2006 is also supportive of the fact that no search was conducted by the Appellant.  It was urged in oral argument before me that Tuffield was “on a frolic of his own” or words to that effect. 

1. The fact remains that Tuffield’s sworn evidence to the CMC investigative hearing was as follows:-

   Boyle:            Can you recall conducting a search when you were there?
   Tuffield:        No I didn’t.  I didn’t personally.
   Boyle:            Can you say that you didn’t involve yourself in any search?
   Tuffield:        I didn’t no.
   Boyle:            Can you recall whether O’Keefe did?
   Tuffield:        I know he left me and I remember him going downstairs.
   Boyle:            Where was the prisoner?
   Tuffield:        In the lounge room with his mum, and I think it was a sister.
   Boyle:            You can’t recall the prisoner assisting in any search?

   Tuffield:No.  I stood on the balcony by memory.  I talked to an Uncle I think. and then later 

   Kennedy:You said before you didn’t search?

   Tuffield:Yeah I have no recollections of searching.

   Kennedy:What did you do.  Did you stay with Howard?

   Tuffield:I watched Howard from where I was and stood on the veranda and I had a coffee with a male person, a decent male person, who just had a - talked about - I don’t know what we talked about, just had a chat.

   Kennedy:And did you observe O’Keefe undertaking any sort of search?

   Tuffield:No. I saw John leave the balcony.  Where he went in the unit I don’t know.

   Kennedy:So you arrived at the unit.  You went out onto the balcony, and you stayed there the whole time?

   Tuffield:        Yeah I think I did.

1. One would expect that if two police officers intent on finding evidence take a prisoner to his relatives’ house, both would be astute to ensure firstly, that the prisoner did not escape and secondly, that any relevant evidence was obtained expeditiously.  Protestations concerning allowing contact on alleged humanitarian grounds fall on deaf ears.

1. The Appellant sought comfort from the submission that the only direct evidence with respect to the Appellant’s purpose in going to the address on 26 February, 2004 comes from the Appellant and Skillen by whom it was submitted he was directed to attend the residence at Zillmere.   I do not accept the submission.

1. The Respondent in her findings came to her conclusion with respect to Matter 1 by considering rationally probative evidence.   Whether the Respondent’s reasoning can be characterized as involving similar considerations that apply to the reasoning involved in cases involving circumstantial evidence being litigated in Courts of law is really not to the point.

1. The Appellant submits that the Respondent permitted her reasoning to be infected by proof of matters of which there was no evidence and that those matters were held to form part of the Appellant’s state of knowledge.  It is said that she impermissibly allowed her reasons to be infected by those matters in determining whether or not the Appellant believed he was acting with a proper purpose.   The Appellant outlines those matters in his Outline.  I do not accept the Appellant’s submission in that regard. 

1. For the following reasons I agree with the Respondent’s finding that Matter 1 is substantiated.  On 28 January, 2004 Skillen removed Howard from the Wacol Correctional Centre under the authority of a Removal Order.  Howard was interviewed by Skillen on that date.  He admitted to an offence.  He also admitted to other offences, in particular the robbery of a post office in Zillmere and a service station in South Brisbane.  Skillen asked Howard during the transport to the armed robbery unit what he wanted for the “clear up” as no-one does a clear up without there being something in it for them.  Howard said that he’d like to go home for the day and get a decent sentence.  Skillen said “We can organize that, I’ll get the boys to take you home”.  After the recorded interview Howard asked Skillen if he could go home that day and Skillen said words to the effect that “we haven’t got time today, we’ll come and get you in a few weeks and give you the visit then.”

1. On the following day, 29 January, 2004 there was a conversation between Howard and his mother which clearly shows he had a real expectation that he would be removed from prison in the near future by Skillen and taken home to visit his mother.  That the visit was to be a social one is reinforced by the fact that Howard, during the telephone call, can be heard arranging with his mother for other family members to be present during the visit. 

1. It is no accident one might infer that when Howard was taken to his mother’s house by police, other family members were also present.

1. On 24 February, 2004 Skillen obtained another Removal Order authorising the removal of Howard on 26 February, 2004 to “the armed robbery unit for the purposes of conducting an electronically recorded record of interview and if necessary, a field record of interview”. 

1. The next day there was a further telephone conversation between Howard and his mother. Howard confirmed to his mother that the visit would happen either tomorrow, ie. 26 February, 2004 or Friday.  The conversation clearly reflects an expectation in both Howard and his mother that the visit will happen the next day or the following Friday and that his mother upon being telephoned at work would go to the unit so that she could see her son. 

1. That evidence leads to the conclusion that Skillen made an arrangement with Howard to visit his mother at the Zillmere address prior to his being removed from the WCC on 26 February, 2004.  Skillen removed Howard from the WCC at 8.45am on 26 February, 2004.  Records indicate that he was returned to the WCC at 4.15pm that day.  He was taken to the armed robbery unit and interviewed by Skillen and Riles.  The interview was concluded by 11:15 am.

1. During the course of the interview Howard admitted to an armed robbery of a post office at Red Hill in company with a man by the name of Aaron Spiers.   He stated clothing worn by him during that robbery may be at his mother’s residence.  The interview finished at 11:12 am.  During the conversation Howard told Skillen that amongst other things he had a black bum bag with him during the robbery.  During the interview Skillen asked where the clothing was located now to which Howard replied, at his mother’s place.  Skillen asked Howard if he would have any objections to us, meaning the police, going to there and then said “Well, it’ll have to be with you to see if you can identify that clothing to us”.  Howard said, “That’s fine”.

1. A compelling view open on all of the evidence is that there was a pre-existing unlawful plan between Howard, Skillen, Tuffield and the Appellant and perhaps others to remove Howard from WCC to conduct a recorded interview and later take him for a social visit to see his mother on the pretext of looking for evidence.  Given that the visit was not for the purpose of searching for evidence, there could be no official purpose for the visit and hence the visit was not authorized by law.  I am reasonably satisfied on all of the evidence that no search was conducted of the unit at Zillmere by the Appellant and Tuffield.

1. On balance, I find that such was the common unlawful purpose of the three police officers involved.  In coming to my conclusion I am mindful of the fact that both Counsel in the appeal characterized the case with respect to alleged misconduct in Matter 1 as being circumstantial.  I am also conscious of the fact that on the face of it the rules of evidence do not apply to disciplinary action.  Nevertheless, substantive rules of law and common sense often overlap and in my view the case of misconduct with respect to Matter 1 can be characterized by reference to the principles that have long governed criminal cases involving conspiracy and preconcert.  In Tripodi v R (1961) 104 CLR 1, it was held

   “When the case for the prosecution is that in the commission of a crime a number of persons have acted in preconcert, once reasonable evidence of the preconcert has been adduced, evidence of directions, instructions, arrangements or utterances accompanying acts given or made by one of the persons in the absence of the other or others in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others assuming it to be not otherwise admissible.  The basal reason for admitting such evidence is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.”

1. Tripodiwas considered in Ahern v. R (1988) 165 CLR at page 87.  The principles that flow from Ahern are as follows.  That the Judge has to decide whether or not there is independent evidence of participation of an accused in the illegal combination sufficient to let in against him evidence of the acts and declarations of the other participants in further proof of that participation.  Further, where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will be admissible to prove the participation of the accused in the conspiracy only where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence apart from the acts or words that the accused was also a participant [my underlining].

1. Simply put, in criminal cases involving alleged preconcert, once it is decided that reasonable evidence of preconcert between the accused  and others is established, the acts and declarations of the co-conspirators are admissible evidence against each of them provided the acts or declarations were done in furtherance of the common purpose.

1. I have already indicated above my reasonable satisfaction that a common unlawful purpose existed between Skillen, Tuffield and the Appellant to take Howard to his mother’s unit under the guise of looking for evidence.  That common purpose involved Skillen obtaining a removal Order for the purpose of legitimising an otherwise unnecessary trip to Howard’s mother’s residence.  In coming to that conclusion I have had regard to the subsequent acts of Skillen, Tuffield and the Appellant.  I have also had regard to the evidence from the civilian witnesses who were present when Howard was taken to his mother’s residence,  that is overwhelmingly to the effect that neither Tuffield nor the Appellant searched the unit.

1. The Respondent used similar reasoning, in my view, in coming to her conclusion that Matter 1 was substantiated. 

1. One of the primary reasons that I am reasonably satisfied that there was a pre-existing common unlawful purpose between the three police officers is the compelling evidence of the civilians and indeed Howard himself that no search was conducted by the Appellant and Tuffield during the visit.  An irresistible inference from that fact is that there was no official purpose in reality attached to the visit.  Further, there is not one jot of evidence in QPS indices or official records supporting the Appellant’s claim that he searched the unit.  It must be remembered that Howard’s removal from the Wolston Correctional Centre was authorized under the terms of the Removal Order.

1. I have already indicated the overwhelming nature of the evidence leading to the conclusion that no search was conducted by the Appellant of the Zillmere unit.  In those circumstances the particulars with respect to Matters 2 and 3 are made out to the requisite standard of proof.  

1. In coming to a conclusion that no actual search took place at 4/16 Grasspan Street, Zillmere on 26 February 2004, I have considered the following evidence:

   ·The “clean up” conversation and the promise that a visit would take place in a few weeks.

   ·The Howards’ conversation on 29 January, 2004.

   ·The Howards’ conversation on 25 February, 2004 and the intimation that the prisoner, Howard, would ring his mother to confirm the impending visit.

   ·A telephone call was made from Tuffield’s office to Mrs. Howard’s workplace prior to the visit.

   ·Howard said he placed the call from Tuffield’s office.

   ·Howard’s mother confirmed she received a call.

   ·Those arrangements were made on 25 February, 2004, the day before the visit to the unit.

   ·Mrs. Howard, Emma Ritchie and Graham Clarke were told by Mrs. Howard prior to the visit that Howard “may be coming home”.  Howard’s evidence when he was interviewed by Detective Paterson on 15 April, 2005 where he said as follows:

   “… Paul Skillen told me, you know, we can’t just take blokes home for nothing, he said there has to be a reason behind it, to take yous home … and he said if I did take you home we’d have to look for, maybe clothes you wore in the armed robbery were his words, maybe clothes you were in the armed robbery so I compensated, you know, can’t be  … for nothing it has to be put in some log book … or something why I was taken home.”

   So I very well would have through the interview, based on what Paul would have said you know.

   Alright well if we can just clarify. Was there any clothes at her mother’s.

   A.No, not at all.

   Q. That you’d used in any armed robberies.

   A.No, none whatsoever. … We didn’t even, while we were there, the whole day we were at Mum’s house, the whole, duration time, we never went into the back bedroom to look for clothes, never ah, went to any bedroom to look for clothes cos there was none to be looked for …”

   ·The evidence of those present as to the fact that no search was conducted, namely the evidence of Karen Howard, Graham Clarke, Janine Howard and Emma Ritchie.

   ·The absence of any supporting evidence in the form of official diary, notebook entries etc. relevant to  a legitimate need to search the unit.

   ·Tuffield’s evidence that there was no search.

   ·No tape recording was made of the visit to the unit which in reality a proven police officer legitimately taking a prisoner to a unit in order to locate evidence would tape record such a search and any consent to the search.

   ·The photograph taken on the day of the visit revealing Howard with his family.

   ·The inherent implausibility of police allowing Howard to telephone his mother in circumstances where they would later be in effect raiding his mother’s unit (either consensually or not) with a view to obtaining evidence supporting a charge of armed robbery.

   ·The absence of any participation whatsoever by Howard in any legitimate search of the premises.

   ·The absence of any evidence of conversation between Howard, the Appellant and Tuffield about the location of any evidence.

   ·The lack of evidence of any briefing between the police as to the purpose and nature of the search and what was hoped to be achieved by the search.

   ·The absence of any evidence whatsoever that either the Appellant or Tuffield searched for “a Nike black bum bag”.

   ·The absence of any briefing by police to the Appellant as to the aim of the search and what was to be located.

   ·The Appellant’s obviously incorrect assertion that Skillen requested him to take Howard to the unit and that request was a direction from a superior officer - in fact Skillen was not the Appellant’s superior officer.

   ·The Appellant’s demonstrably false claim that he and Tuffield left ARU immediately after the conclusion of the recorded interview when it is clear that there was a two hour gap between 11:15 and the timing of the telephone call to Howard’s mother.

2. I have already indicated that on balance I am satisfied that Matters 2 and 3 have been substantiated to the requisite standard of proof.

DECISION
           Matter 1:
           I confirm the decision appealed against.
           Matter 2:
           I confirm the decision appealed against.
           Matter 3:
           I confirm the decision appealed against.

THE APPEAL AGAINST SANCTION

1. As I appreciate it the Appellant appeals only against the sanction imposed with respect to Matter 2, namely his dismissal from the Queensland Police Service.

1. It is submitted by the Appellant that the sanction of dismissal with respect to Matter 2 is manifestly excessive.  The Appellant refers to the personal circumstances set out in his submissions to the Respondent and tendered at the Disciplinary Hearing.

1. With respect to relevant considerations in an appeal to this Tribunal against the severity of a penalty, Thomas JA said in Aldrich v Ross (2001) 2 Qd R 235 at 258:

   “The issue on appeal to the Misconduct Tribunal in the present matter were expressed by the Appellant as whether the penalties were manifestly excessive in all the circumstances.  For the reasons which have been given, the first duty of a Misconduct Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision maker.   If the materials are inadequate, there is adequate power to obtain further information under sections 20 and 23(5).  If further evidence were received at the proceeding, it would necessarily become a rehearing de novo.  If there is no serious contest as to the primary facts (as was essentially the position here), it is still necessary for the Misconduct Tribunal to make up its own mind on the facts and on the inferences to be drawn from them, though it might well see the same way as the original decision maker if that person’s view of the facts is ascertainable.  The exercise is quite different from that which takes place in this court in sentence appeals against the exercise of a judicial discretion, where the principles of House  and Cranssen apply, and where the essential issue is often compendiously reduced to whether the sentence is manifestly excessive.  If the Misconduct Tribunal has the same view of the facts and inferences as the original Tribunal, it would again be appropriate to give considerable respect to the views of the original Tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the Misconduct Tribunal.”

1. I have already indicated above my reasons for confirming the decisions appealed against.

1. With respect to the issue of penalty, I have the same view of the facts and draw the same inferences from those facts as did the Respondent.  Accordingly, it is appropriate for me to give considerable respect to the Respondent’s views as to the appropriate disciplinary sanction.  I recognise however that the ultimate determination is that of the Misconduct Tribunal.  In my opinion, the sanction of dismissal with respect to Matter 2 was not manifestly excessive.  I come to that conclusion bearing in mind that the purpose of misconduct and disciplinary proceedings within the Queensland Police Service is:

   (a)protection of the public;

   (b)maintenance of public confidence in the Service; and

   (c)maintenance of integrity in the performance of police duties.

2. This Tribunal, as I have already stated above, brings a perspective to bear to these proceedings from the public’s point of view.

1. The Appellant submits that at the very least the order of dismissal ought to be suspended.  I was referred to a decision of Churchill v Stewart, TA 5 of 2008, where in summary it was held as follows:

   ·The purpose of the jurisdiction of the Tribunal is protective in nature.

   ·Disciplinary proceedings have been consistently viewed as not punitive in nature (although it can be recognised that there may be some deprivation of the person disciplined).

   ·The purpose of disciplinary proceedings is not to individually punish the person, the subject of them.

   ·The relevant considerations are not limited to those considerations that personally affect that person.

2. In accordance with those principles, it seems to me that referring to similar matters such as those outlined at page 18 of the Appellant’s Outline of Submissions, can only be of limited assistance.   I accept the Respondent’s submission that a finding that the Appellant knowingly gave false sworn testimony necessarily involves dismissal as the appropriate sanction.

1. With respect to the issue of whether or not this Tribunal suspends that punishment, I note the decision of SpencervBaulch(2004) QCA 234 which is to the effect that the discretion to suspend an order including one for dismissal does not require special or exceptional circumstances but it may be exercised whenever “the Tribunal considered it appropriate to do so in the circumstances”. I do not consider it appropriate to suspend the sanction imposed in the circumstances of this case.

1. I am not going to set out the facts and circumstances of each of the cases set out at page 18 of the Appellant’s Outline.  Suffice it to say that I find them of little assistance in this matter given the fact that the Appellant contested the charges both before the Respondent and before this Tribunal.   He has at no stage of the disciplinary process made any admission of misconduct nor has he demonstrated remorse in any shape or form.  It was submitted by the Respondent that the Appellant “shaped his story to fit the available facts as he perceived them, for instance, the claim that he was dispatched immediately after the interview between Howard and Skillen.”  I do not need to find whether or not I accept that submission in coming to this conclusion.

1. I have had regard to his disciplinary record which is not unblemished.   In respect of the cases that appear at paragraph 90 of his Outline, I make the following observations:

   The decision in Re Bowen [1996] 2 Qd.R. 8 dealt with an Inspector of police who improperly alerted a subordinate that the subordinate was the subject of a complaint relating to the misappropriation of a tool box worth some $18,000.00, thereby disclosing confidential information. The Inspector then falsely denied making the disclosure to an officer of the Criminal Justice Commission and then repeated the denial in a signed witness statement duly endorsed with a declaration under the Oaths Act.

   It was held in Bowen by Demack J. that the effect of the Inspector’s denials was as follows:

   “When the appellant lied on 3 June 1993, he did something which erodes public confidence in the police service, and which also affects the trust other members of the police service have in each other.  He lied to hide his own misdoing.  When he was false to his oath on 10 August 1993, he put himself in the situation where his testimony was forever open to challenge.  This, in a significant sense, denied the public the use of his services in the active detection of the crime.  It also erodes public confidence and adds weight to the arguments of those who seek to curtail the powers of the police service.  It may destroy the trust other members of the police service should have in him.”

   It is submitted that the Appellant’s actions in relation to Counts 2 and 3 should be seen in a similar light.

   In Bowen a Misconduct Tribunal exercising original jurisdiction instead of dismissing the officer demoted him in rank from Inspector to Sergeant paypoint 1.  From the judgment of the appeal, which was heard by a single Supreme Court Justice, it appears that serious consideration was given to dismissing the officer from the service.  The following appear to be factors in the decision to demote rather than dismiss:

   (i) The officer did not contest nor admit the charges, although he would seem to have admitted the underlying facts;

   (ii) The officer had an impressive record as a police officer of 30 years meritorious service, culminating in his holding the rank of Inspector;

   (iii)He had some 52 referees, mainly other police officers, speaking of the high regard in which he was held.

   In the case of Stretton which involved an officer giving false evidence in a criminal trial the sanction was dismissal suspended with conditions for three years.  The relevant factors in that case appear to be:

   (i) The officer subsequently admitted giving the false testimony to the Criminal Justice Commission;

   (ii) Stretton did not contest nor admit the charges;

   (iii)Specialist medical evidence of post traumatic stress and the effect of discontinuing medication provided significant mitigating circumstances;

   (iv)The officer was said to have an unblemished record and had good references from supervisors, colleagues and persons outside the police service;

   (v)The admissions were accepted as showing both remorse and insight;

   (vi)It was accepted that there was a small likelihood of the officer reoffending.

   In the case of Morier the officer had plead guilty in the Magistrates Court to attempting, whilst an employee of the Queensland Police Service, to dishonestly obtain the sum of $500.00 from the Commissioner.  The charge concerned a fraudulent travel claim.  She was originally dismissed from the Service but on appeal to a Misconduct Tribunal the sanction was reduced in that the dismissal was suspended.  In that case the following was taken into account:

   (i) The officer was dealt with in Court by way of a good behaviour bond for a period of twelve months with no conviction recorded;

   (ii) The officer was remorseful;

   (iii) The officer admitted the misconduct;

   (iv)It was accepted that her behaviour was aberrant and out of character and that she had an otherwise unblemished record;

   (v)The Tribunal considered that not enough consideration had been given to her mitigating personal circumstances which included difficulties in relation to her accommodation in Charleville and financial difficulties;

   (vi)The Tribunal further considered that too little consideration had been had to the deterrent and punitive character of a suspension.

   In the case of Vann the officer took home a smoking utensil that he had seized and then falsified an entry on an official property receipt.  He then lied when interviewed by another officer.  The officer also served a notice to appear upon a defendant with an incorrect appearance date resulting in the issuing of a warrant and the subsequent arrest and detention of the person.  The officer then also lied when interviewed by another officer, about that matter.  The sanction of dismissal imposed at first instance was suspended, with some misgiving, by a Misconduct Tribunal upon appeal.  The matters taken into account were:

   (i) The delay in finalizing matters whilst the officer was allowed to remain on duty;

   (ii) His subsequent good behaviour over two years;

   (iii)the fact that the matters arose within 18 months of his induction;

   (iv)The references from fellow officers attesting to his good behaviour and work performance in the time after the incidents;

   (v)The capacity of the officer to reform and become a competent officer.

   In the case of Thomsen the officer concerned was, whilst off duty, involved in a single vehicle accident.  She failed to remain at the scene and failed to report the accident to police.  She further made a false report to her insurer and lied to a representative of her insurer and to police officers investigating the accident and her conduct. The officer maintained her fabrication at the initial disciplinary hearing.  The Misconduct Tribunal upheld the sanctions imposed upon the officer, including sanctions of dismissal suspended for a period of twelve months.  The factors taken into account by the Tribunal were:

   (i) The fact that the officer was “young” in service having only served 21 months at the time of the accident;

   (ii) The delay in bringing proceedings of some 33 months, although it was noted that the officer had contributed to the length of this period due to her dishonesty;

   (iii)For that entire period, as there had been an ongoing investigation, the officer had been prevented from progressing through promotion and paypoints;

   (iv)The absence of any other incidents, either before or subsequently, on her record;

   (v)The accident itself occurred whilst the officer was off duty;

   (vi)The officer did not contest the charges before the Tribunal;

   (vii)The Deputy Commissioner had been prepared “albeit tentatively” to give her further chance to redeem herself.

2. Ultimately I am of the view that the sanction imposed was appropriate in all of the circumstances and that there is no reason for me to exercise my discretion under s 28 of the Act because I do not consider it appropriate to do so in all of the circumstances of this case.