Tolsher v Deputy Commissioner Robert Gee - [2019] QCAT 178

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Tolsher v Deputy Commissioner Robert Gee [2019] QCAT 178

PARTIES: DAVID TOLSHER

(applicant)

v

DEPUTY COMMISSIONER ROBERT GEE

(respondent)

APPLICATION NO/S: OCR255-18

MATTER TYPE: Occupational Regulation

DELIVERED ON: 19 June 2019

HEARING DATE: 1 May 2019

HEARD AT: Brisbane

DECISION OF: Member Richard Oliver

ORDERS:
1.   The decision of the respondent in respect of Matter 1(a) is set aside.

2.   The decision of the respondent in respect of Matter 1(b) is confirmed.

3.   The sanction imposed by the respondent is set aside.

4.   In respect of Matter 1(b) the applicant is reprimanded.

CATCHWORDS:
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE – MISCONDUCT AND BREACH OF DISCIPLINE – where applicant retained in his possession an iPhone which was evidenced to be used in the prosecution of a criminal offence – whether the retention of the iPhone was in breach of the Operational Procedure Manual – whether the applicant was authorised to retain the iPhone – whether the retention of the iPhone was justified in the circumstances – whether the applicant’s conduct in retaining the iPhone in his possession was contrary to the Operational Procedures Manual constituted misconduct or alternatively breach of discipline – where officer conducted interviews alone with potential witnesses; where officer did not make written record of interviews – whether conduct of failure to follow procedures in conducting interviews was misconduct or breach of discipline

Queensland Civil and Administrative Tribunal Act 2009 s 20
Police Service Administration Act 1990 (Qld) s 7.4,
Police Service (Discipline) Regulations 1990 ss 3, 9
Deputy Commissioner Ian Stewart v Dark [2012] QCA 228
Commissioner Stephen Hollands v Tolsher [2016] QCATA 123 at [22]
Briginshaw v Briginshaw (1938) 60 CLR 235

APPEARANCES:

Applicant: N Smith of Gilshenan & Luton Legal Practice

Respondent: S McLeod QC instructed by Queensland Police Service Legal Unit

REASONS FOR DECISION

Introduction

On 30 January 2018, Mr Tolsher[1] was directed to attend a disciplinary hearing in respect of allegations that he had engaged in official misconduct. On 10 September 2018 Deputy Commissioner Gee made a decision that Mr Tolsher had engaged in official misconduct by retaining evidence to be used in a criminal prosecution, an iPhone, in his personal possession rather than storing it in a secure facility at the police station. He also concluded that the manner in which he conducted an investigation into images of women found on the iPhone, was contrary to the Operational Procedures Manual and constituted misconduct.
[1]I will refer to the applicant as Mr Tolsher, rather than prefaced with rank as it changed over the years.
Having been satisfied that the misconduct had been substantiated he imposed a sanction of reduction in rank from Senior Sergeant paypoint 4.3 to Sergeant, paypoint 3.5 for a period of 2 years[2]. The sanction also provided that he could resume his rank of Senior Sergeant paypoint 4.3 after the 2 year period ‘dependent upon your satisfactory work and disciplinary performance over this period’.
[2]Deputy Commissioner’s Reasons, page 31.
On 24 September 2018 Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 178
Decision Date: 19 June 2019

CaseChat Overview and Summary

The case of Tolsher v Deputy Commissioner Robert Gee involved a police officer, Mr Tolsher, who was accused of misconduct and breach of discipline. The Deputy Commissioner, Mr Gee, alleged that Mr Tolsher had retained an iPhone used in a criminal investigation, which was contrary to the Operational Procedures Manual, and had conducted interviews alone with potential witnesses without making written records. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether these actions constituted misconduct or a breach of discipline.

The primary legal issue before QCAT was whether Mr Tolsher's conduct in retaining the iPhone and conducting interviews without proper documentation amounted to misconduct or a breach of discipline. The tribunal examined whether Mr Tolsher's actions were justified given the circumstances and whether they contravened the operational procedures manual. The Deputy Commissioner argued that Mr Tolsher, given his experience, should have known better than to retain the iPhone and conduct interviews without proper protocol. However, Mr Tolsher maintained that his actions were taken to prevent the potential circulation of explicit images and to safeguard the integrity of the investigation.

QCAT found that while Mr Tolsher had indeed breached some procedures, his actions were not egregious enough to constitute misconduct. The tribunal noted that Mr Tolsher had the express permission of his superior, DSS Salton, to retain the iPhone for the investigation. The tribunal also considered the sensitive nature of the investigation, which involved explicit images and potential privacy breaches, and found that Mr Tolsher's actions, though unorthodox, were taken with the intention to protect the investigation. Regarding the interviews, QCAT acknowledged that Mr Tolsher had not followed proper procedure but found that his intention was not to circumvent the rules but to expedite the investigation. The tribunal ultimately concluded that while Mr Tolsher's conduct was inappropriate, it did not rise to the level of misconduct or a breach of discipline warranting severe sanction.

The tribunal set aside the decision regarding Matter 1(a), confirmed the decision regarding Matter 1(b), and set aside the sanction imposed by the Deputy Commissioner. In respect of Matter 1(b), the tribunal ordered that Mr Tolsher be reprimanded.

Orders

Orders of the court

1. The decision of the respondent in respect of Matter 1(a) is set aside.

2. The decision of the respondent in respect of Matter 1(b) is confirmed.

3. The sanction imposed by the respondent is set aside.

4. In respect of Matter 1(b) the applicant is reprimanded.

Background

Background to the litigation

Detailed particulars of the charges were provided in support of the allegations made are as follows: i. On 24 June 2012, Mr XE was arrested by the Ipswich Criminal Investigation Branch (CIB) for the offence of rape, at which time an iPhone 5 was seized from Mr XE and lodged at the Ipswich Police Station Property Point as an exhibit; andii. The iPhone 5 exhibit contained several images of naked women who were considered potential witnesses or victims in relation to possible sexual and/or privacy related offences.In relation to Matter One (a):i. You removed the exhibit from the Ipswich Property Point without properly recording all movements within QPRIME in order to carry out inquiries with women you suspected were depicted in the images contained within the iPhone;ii. You accessed information and images on the iPhone enabling you to identify the names and addresses of the potential witnesses or victims;iii. You maintained personal possession of the exhibit over a period of days and stored the device at your home address in a Milo tin modified to allow you to maintain a constant charge to the phone;iv. Whilst the iPhone was in your personal possession at your home address and elsewhere, Mr XE who at that time was considered a rape suspect remotely monitored the iPhone and subsequently identified your home address through your failure to adequately safeguard the iPhone electronically;v. Whilst the iPhone was in your personal possession cellular data was downloaded to the iPhone and the iPhone became connected to a public Wi-Fi signal at a McDonalds Restaurant on a number of occasions; andvi. You accessed the iPhone on multiple occasions prior to a complete forensic examination by the Electronic Evidence Examination Unit, potentially contaminating evidence of the commission of an offence.In relation to Matter One (b):i. You attended the home addresses of Ms NE and Ms DT and the business address of Ms HA whose personally sensitive images appeared on the iPhone 5 seized as an exhibit from Mr XE;ii. When attending the addresses of Ms NE, Ms DT and Ms HA you identified yourself as a police officer;iii. You were not on rostered duty at the time you attended the addresses of Ms NE and Ms HA;iv. You failed to formally record any conversation and were not in the company of a corroborating officer when discussing potential sexual and/or privacy related offences with either Ms NE, Ms DT or Ms HA;v. During your enquiries with Ms NE, Ms DT and Ms HA you displayed to them each, images contained on the iPhone, including naked images of various women whilst asking them to identify any of the images that were of themselves; andvi. Your official enquiry at Ms NE’s residence was approximately 30 minutes in duration. However, you remained at Ms NE's residence for a total of approximately 90 minutes wherein you discussed matters relating to your own personal relationship. In all of the circumstances your actions reasonably caused Ms NE to feel uncomfortable and uncertain as to your intentions.Further Background

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

What emerges from Dark is that the conduct complained of, when determining whether it falls within the definition of misconduct or breach of discipline, must be considered in the context of the particular case (my emphasis). This was reinforced by Carmody J in Assistant Commissioner Stephen Hollands v Tolsher.[11]Consideration[11][2016] QCATA 123, [22].Matter 1(a) I have found that Mr Tolsher retained the iPhone with the express permission of DSS Salton to pursue the further investigation in respect of the images found on the iPhone. Despite his understanding that he was to retain the iPhone in his possession, the Deputy Commissioner submits that given Mr Tolsher’s length of service and experience particularly as a Senior Sergeant, he ought to have known better and returned the iPhone to the Property Point. It is also submitted that DSS Salton did not have to go so far as to tell Mr Tolsher about the “nuts and bolts” of the proper procedures to be adopted because of his rank and experience. However, Mr Tolsher’s conduct must also be considered in the context of this investigation. Firstly, it involved an individual working in emergency services which presumably if Mr XE did take the photos without consent and it became public knowledge would reflect badly on the integrity of that service. Secondly, it related to explicit images found on the iPhone and there was a genuine concern that if the iPhone was left at the police station, the content might be circulated. One should, naturally, assume with respect to the latter, such conduct by police officers ought not occur but acting out of an abundance of caution, both DSS Salton and Mr Tolsher simply wanted to ensure that this would not happen. There is also criticism that by keeping the iPhone in his possession, it could have been corrupted through automatic connection to alternate Wi-Fi services such as occurred when it automatically connected to the Wi-Fi service in a McDonalds restaurant on a couple of occasions. It seems to me however, given that Mr Tolsher was unaware of this automatic connectivity, had he put it back in the Property Point and then retrieved it and went about his business to conduct the various interviews, had he come in close proximity with, for example a McDonalds, it would have connected automatically in any event. In this respect I note he did take steps, although somewhat unorthodox, to ensure the content was not accessed with the use of the milo tin. Because the iPhone was in Mr Tolsher’s possession, the location of it could be ascertained by Mr XE which revealed Mr Tolsher’s home address to him. This falls within the same category as the Wi-Fi connection. Mr Tolsher was unaware of this and similarly, the iPhone’s location could have been ascertained no matter where Mr Tolsher happened to be with the iPhone whilst conducting the investigation, once it was taken from the Property Point. It should also be noted that during the course of the investigations Mr Tolsher kept DSS Salton “briefed up” as the investigation progressed. He did nothing untoward in terms of the investigation with the iPhone, by retaining it in his possession. In other words, he did not use the iPhone for any other purpose.