Wadham v Deputy Commissioner Ian Stewart
[2010] QCAT 578
•14 September 2010
CITATION: Wadham v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 578
PARTIES: Laura Wadham
v
Deputy Commissioner Ian Stewart
Queensland Police Service
APPLICATION NUMBER: OCR104-10
MATTER TYPE: Occupational regulation matters
HEARING DATE: 10 August 2010
HEARD AT: Brisbane
DECISION OF: JR Browne
DELIVERED ON: 14 September 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. In respect of matter one the respondent’s decision is affirmed.
2. In respect of matters two and three the respondent’s decision as to the sanction imposed is otherwise affirmed.
3. The applicant’s application is dismissed.
CATCHWORDS: Police officers – discipline – inappropriate use of funds
Rehearing by QCAT – nature of “review” and standard of proof required - element of “knowingly” as stated in charge -
Review of sanction – whether dismissal is manifestly excessive -
Crime and Misconduct Act 2001 s 219G;
Police Service Administration Act 1990 s 1.4;
Police Service (Discipline) Regulation 1990 s 9;
Queensland Civil and Administrative Tribunal Act 2009 ss 17, 19.Aldrich v Ross (2001) 2 Qd R 235, cited
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, cited
Comptom v Deputy Commissioner Ian StewartQueensland Police Service [2010] QCAT 384, cited
Crime and Misconduct Commission v Nikola & Anor TA 1 of 2007, cited
Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409, cited
Conder v Byrne & Anor (2004) QSC 82, cited
DPP Cth v Neamati (2007) NSWSC 746, cited
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, cited
O’Keeffe v Deputy Commissioner Rynder [2010] QCAT 109, cited
Pereira v Director of Public Prosecutions (Cth) (1988) 82 ALR 217, cited
Rejfek V McElroy & Anor (1964-5) 112 CLR 517, cited
Rogers v Leak TA 9 & 10 of 2000, cited
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Ms Laura Wadham represented by Mr C Gnech of the Queensland Police Union Solicitors Office
RESPONDENT: Queensland Police Service represented by Mr M Nicolson and instructed by the Official Solicitor for the Queensland Police Service
REASONS FOR DECISION
Introduction
1.This is an application to review a decision by a deputy commissioner of police, Deputy Commissioner Ian Stewart (“the respondent”) made on 16 April 2010 in relation to a disciplinary hearing conducted under the Police Service Administration Act 1990 (“PSAA”) and the Human Resource Management Manual (“HRMM”) held on 2 February 2010.
2.The respondent delivered his findings and reasons on 16 April 2010 that the following disciplinary charges of misconduct against Senior Constable Laura Wadham (Laura Wadham known as “the applicant”) were substantiated:
Matter One
That between the 20th day of April 2008 and 21st day of June 2008 at Brisbane or elsewhere your conduct was improper in that you:-
(a)inappropriately utilised funds from the Surfers Paradise Criminal Investigation Branch Social Fund.
[Section 1.4 of the Police Service Administration Act 1990 and Section 9(1)(f) of the Police Service (Discipline) Regulations 1990].
Further and better particulars
Investigations have identified that you were a member of and a primary signatory to the Surfers Paradise Criminal Investigation Branch (CIB) Social Fund, Queensland Police Credit Union Account, Member Number 437665 (the Account).During 20 April 2008 and 21 June 2008 without permission or authority you knowingly transferred:-
o $200 from the Account to your personal Queensland Police Credit Union Account Number 101591851 on 21 April 2008;
o $600 from the Account to your personal Queensland Police Credit Union Account Number 101591851 on 5 May 2008; and
o $400 from the Account to your personal Queensland Police Credit Union Account Number 101591851 on 20 June 2008.
Matter Two
That between the 31st day of May 2008 and 29th day of September 2008 at the Gold Coast, Brisbane or elsewhere your conduct was improper in that you:-
(a)inappropriately accessed and utilised the Queensland Police Service computer system without an official purpose related to the performance of your duties as a member of the Queensland Police Service.
[Section 1.4 of the Police Service Administration Act 1990 and Section 9(1)(f) of the Police Service (Discipline) Regulations 1990].
Further and better particulars
Investigations have identified that you knowingly accessed the Queensland Police Service computer system and utilised the personal details of Constable Stephen Hamilton. It is alleged you assumed the identity of Constable Stephen Hamilton when you:-o completed seventeen (17) Queensland Police Service Competency Based Training (CBT) Units; and
o forwarded internal correspondence via Queensland Police Service Computer System email to the Human Resource Manager, South Eastern Region.
Matter Three
That between the 31st day of May 2008 and 5th day of June 2008 at the Gold Coast, Brisbane or elsewhere your conduct was improper in that you knowingly provided false and misleading information when you:-
(a)completed seventeen (17) Queensland Police Service Competency Based Training (CBT) Units;
(b)completed and submitted a Queensland Police Service Paypoint Progression Form;
(c)completed and forward correspondence to the Human Resource Manager, South Eastern Region.
[Section 1.4 of the Police Service Administration Act 1990 and Section 9(1)(f) of the Police Service (Discipline) Regulations 1990].
Further and better particulars
Investigations have identified that you knowingly assumed the identity of Constable Stephen Hamilton and provided false and misleading information.In relation to Matter 3(a):-
You provided false and misleading information via the Queensland Police Service computer system causing the Competency Acquisition Program to record the successful completion of these units, as if they were completed by Constable Stephen Hamilton, who obtained the resulting benefit of personally having completed these units and successfully completed this training.In relation to Matter 3(b):-
You completed and forwarded correspondence on behalf of Constable Hamilton with the view to obtaining his paypoint progression from Constable Paypoint Level 1.2 to Constable Paypoint Level 1.3 and the corresponding pay increment.In relation to Matter 3(c):-
You completed and forwarded correspondence to the Assistant Commissioner, South Eastern Region in response to the request of Ms Annie Harris, Human Resource Manager, South Eastern Region. Ms Harris sought information from Constable Hamilton regarding his ability to allegedly complete seventeen CAP Units whilst on sick leave. You completed and submitted this report on behalf of Constable Hamilton via the Queensland Police Service internal email system.
3.The respondent having found the charges to be substantiated ordered that the applicant be dismissed from the Queensland Police Service (“the QPS”) pursuant to section 5 of the Police Service (Discipline) Regulations 1990, in respect of matters one, two and three.
APPEAL
4.The Queensland Civil and Administrative Tribunal (“the tribunal”) has jurisdiction to review the decision made by the respondent by virtue of section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) and section 219G of the Crime and Misconduct Act 2001.
5.The tribunal, in exercising its review jurisdiction, “must decide the review in accordance with [the QCAT Act] and the enabling Act under which the reviewable decision being reviewed was made”.[1] The nature of the review is by way of a rehearing on the evidence (original evidence) that was before the original decision maker, the respondent.[2] The tribunal is “bound to make its own decision on the evidence before it, whether or not new evidence is received”.[3]
[1] The QCAT Act s 19(a).
[2] Crime and Misconduct Act 2001 s 219H.
[3] Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 at 6.
6.There is no new evidence before the tribunal and the issues to be determined by the tribunal have been agreed by the parties as follows:[4]
1.In relation to matter one, the applicant seeks a review of the finding on the basis that the decision maker failed to determine the requisite standard of proof. In particular, the contentious issue is whether the Applicant “knowingly” committed the alleged conduct.
2.In relation to matters two and three, the applicant agrees to the facts as stated, the only issue in contention is the sanction imposed by the Deputy Commissioner. The applicant submits that the sanctions imposed, that is, dismissal is manifestly excessive.
[4] Agreement of parties as to narrowed issues in the matter dated and filed 6 August 2010.
7.The parties have filed in the tribunal written outline of submissions and oral submissions were made at the hearing.
8.Mr Gnech on behalf of the applicant indicated at the hearing that should the tribunal find matter one to be substantiated then the applicant does not seek a review of the sanction imposed in respect of matter one, that is dismissal.
9.The decision in Aldrich v Ross[5] sets out the “approach” to be taken by the tribunal in deciding the review.[6] The leading judgment delivered by Thomas JA provides:
…the Misconduct Tribunal is required to make its own decision on the available evidence rather than merely to determine the correctness of the original decision…That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.[7]
[5] (2001) 2 Qd R 235.
[6] Cromptom at 28.
[7] Aldrich v Ross at 257. See also O’Keefe v Deputy Commissioner Rynders [2010] QCAT 109.
10.The requisite standard of proof to be applied by the tribunal being the civil standard on the balance of probabilities is set out in the decision of Briginshaw v Briginshaw & Anor.[8] It was held by Dickson J:
…The seriousness of the 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 matters ‘reasonable satisfaction’ should not be produced by the inexact proofs, indefinite testimony, or indirect inferences.[9]
[8] (1938) 60 CLR 336.
[9] Ibid 361.
11.The “clarity of proof required” by the tribunal in determining the civil standard may vary according to the seriousness of the charge to be determined.[10] That is, the standard of proof required is subject to a sliding scale determined by the serious nature of the charges.[11] The tribunal has considered the decision in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[12] which held:
…the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authorative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[13]
[10] Rejfek v McElroy & Anor (1964-5) 112 CLR 517, 521 (Barwick CJ, Kitto, Taylor, Menzies, Windeyer JJ). See also Conder v Byrne (2004) QSC 82.
[11] O’Keeffe v Deputy Commissioner Rynders [2010] QCAT 109 at 12.
[12] (1992) 67 ALJR 170.
[13] Ibid 170 (Mason CJ, Brennan, Deane and Gaudron JJ).
12.In Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors[14] the court held that the tribunal is not required to consider whether “evidence was capable of satisfying the criminal standard of proof…[but] whether it was open to the tribunal on the probative evidence to not be satisfied of the particular alleged applying the civil standard of proof”.[15]
[14] [2009] QSC 409.
[15] Ibid at [66] per Appelgarth J.
MATTER ONE
13.Matter one relates to alleged conduct occurring on 21 April 2008, 5 May 2008 and 20 June 2008 in that the applicant “knowingly” transferred money from the Surfers Paradise Criminal Investigation Branch (CIB) Social Fund (the “Social Fund”) to the applicant’s own personal account by utilising the on-line internet Police Credit Union banking facility. The amount of the money transferred from the Social Fund is $200.00, $600.00 and $400.00 respectively on the aforementioned dates.
14.By way of background, the applicant at the time of the transfer of funds held an account with the Teachers Credit Union and operated two bank accounts with the Queensland Police Credit Union as follows:
1.Growth (savings) account number 1015918 S1
2.Loan account number 1015918L70.6
15.The applicant was also a primary signatory and member of the Social Fund which held Account number 437665 S1.
16.The applicant had access to both her savings and loan accounts on the Queensland Police Credit Union internet banking website along with the Social Fund account. No evidence has been adduced as to how the applicant came to have access to the Social Fund account on the internet banking facility however the parties agree that the applicant was a primary signatory to the Social Fund at the relevant times. The applicant became a signatory approximately eighteen (18) months to two (2) years ago [December 2006 to June 2007].[16] The Social Fund only required one signatory to authorise any transaction and there was one other signatory at the relevant time. Membership to the Social Fund is voluntary and members complete a personal account deduction for money which is deposited fortnightly and funds are used to purchase amenities such as tea and coffee; and to contribute towards Queensland Police Service (QPS) functions.
[16] Transcript of interview with the applicant, Tribunal material vol 2, pages 124, 125.
17.The applicant was employed as a Detective Senior Constable in the Coomera Police Station at the time matter one was reported on 14 July 2008. The applicant commenced her first year as a police constable on 6 August 1999 and was stationed at Surfers Paradise until February 2003 when she was transferred to Coomera.
18.The applicant was approached about matter one by Acting Detective Inspector Huth (“Huth”) on 11 July 2008. Prior to this the applicant had discussed the circumstances surrounding matter one with her team leader Detective Sergeant Mark Proctor (“Proctor”) at his private residence on 11 July 2008. Proctor recorded notes of the conversation in his police notebook and a copy of the relevant notebook extract has been included in the material provided by the respondent pursuant to section 21(2) of the QCAT Act (“the tribunal material”). Proctor notes in his notebook that the applicant “appeared genuinely shocked [sic] explained that she must have transferred funds accidentally. [Proctor] advised her to put the money back into the [account as soon as possible]”.[17]
[17] Tribunal material vol 2, p 44b.
19.Huth recorded the conversation he had with the applicant on 11 July 2008 in his police notebook also included in the tribunal material.[18] This is relevant to the issues raised by the applicant in that the applicant made certain admissions about the nature of the transfer of the funds to Huth. The tribunal notes the relevant extract from the notebook:[19]
[18] Ibid p 38.
[19] Ibid.
Q How did it happen
A I thought I was transferring money. My pay goes into my Teachers Credit Union Account. I thought I was transferring money from it into my Police Credit Union Account.
Q Laura I didn’t even know there was internet banking connected to our social club account.
A Yes there is Senior I’m so sorry.
20.The applicant repaid the funds by way of transfer from her Savings account to the Social Fund on 11 July 2008 as evident from the bank statements for the Social Fund included in the tribunal material.[20]
[20] Ibid p 41.
21.The applicant participated in an interview after the appropriate direction was given on 3 December 2008. During the interview the applicant was advised that Huth had conducted an audit of the Social Fund account which revealed transactions which had been made to transfer funds on 21 April 2008, 5 May 2008 and 20 June 2008 totalling an amount of $1,200.00. During the interview the applicant said the following in relation to her discussion with Huth, in particular her statement to him that she thought she was transferring money from her Teacher’s Credit Union account:[21]
[21] Ibid p 118.
Wadham:To the best of my recollection no. I do have money, most of my pay at that time was going into my Teachers Credit Union account but I’ve got two accounts with the Police Credit Union, a growth savings account and a loan account with the Police Credit Union where I deposit $300 [a] fortnight into that account.
…
Burgess:…Now it was left at the conversation was that you thought you were transferring money that your pay goes into your Teachers Credit Union account, that you thought that you were transferring money from it into your Police Credit Union Account and it appears that you disagree with that conversation.
Wadham:Yeah….My pay goes into my Teachers Credit Union account, but I thought I was transferring money from my loan account into my savings account…..
22.The applicant confirmed during the interview that she did not know the account number for her savings account, only her membership number:[22]
Burgess:All right. Now do you know the particulars of your savings account at all, what the account number is
Wadham:Yeah 10159, well I’ve just my membership number I don’t know the account number sorry my membership number is 1015918.
[22] Ibid p119.
23.The applicant claims that she was not aware of the Social Fund internet banking facility until after she spoke to Proctor and a member of the Queensland Police Credit Union.
Wadham:I rang the Police Credit Union and they said because I was a signatory on the social club account and I already had internet banking from my own personal account, from my two Police Credit Union accounts. It was just automatic, that because I was a signatory they put the internet banking on my, sorry for the internet banking for the social club onto my every day for my account.[23]
[23] Ibid p 120.
24.The applicant stated during the interview that both her savings and loan account numbers would have appeared on the first transaction page on the Queensland Police Credit Union internet banking website with the accounts listed on “a page”.[24] The applicant agrees that on the “transfer page” it is necessary to select your account for example the applicant’s loan account then select from options such as the savings account from the “second box” and then enter an amount which appears at the bottom of the transaction page.[25] To complete the transaction it was necessary to hit the “pay now button” which would bring up a confirmation page showing the account details and the applicant’s password would be entered.[26]
[24] Ibid p 130.
[25] Ibid p 131.
[26] Ibid p 132.
25.The applicant was questioned during the interview as to how the Social Fund account number came to appear on the applicant’s “personal computer with the access” and the applicant responded as follows:[27]
[27] Ibid p 132.
Wadham:No. It’s [sic] I don’t know. I have previously transferred money, it was a couple of years ago from my loan account to my savings account and all I did was on the first page where the accounts come up, chose the bottom account because that was my loan account and then in that page just choose my drop down menu to choose my account, my S1 account, and then put the amount in and then when I pay now I just put the password in I don’t check.
Burgess:It’s the same password for each of the three accounts for the access to the CIB social club account, your L70,6 account and your S1 account.
Wadham:Yes. It just gives me access to anything that I am a member of or a signatory of
.
Burgess:Now this computer where you conducted the transactions, is that a work computer or home computer.
Wadham: No it was in an internet café.
26.The applicant does not dispute during the interview that the first transaction in the amount of $200.00 occurred via internet transfer on 21 April 2008 whilst on recreation leave. It is also agreed that the savings account balance was only $0.25 short of her overdraft facility of $2,500.00 and that there were two (2) transactions indicating a total amount of $153.00 spent from the savings account on 21 April 2008.
Burgess:So by withdrawing the sum money of $200.00 [sic] it reduced the balance and then the sum of $153.00 was spent on that day [21 April 2008].
Wadham: Yes.[28]
[28] Ibid, p 134.
27.The second transaction which occurred on 5 May 2008 in the amount of $600.00 was also discussed during the interview and the applicant agreed that her savings account had been overdrawn as at 30 April 2008. The account statements also showed that there were transactions and withdrawals on 5 May 2008 including a withdrawal of $475.00 from an ATM at Kawana and that the account was left $0.92 short of the overdraft facility.
28.The applicant stated that her partner had been living at his parent’s house since November 2007 and she was paying medical bills for her partner who was a serving police officer at the time and that although her partner’s financial situation “was fine” he did not want to pay the medical bills because he had been diagnosed “with a severe breathing disorder and the medical bills [she] was paying was psychiatrist visits and he [did not] want to see the psychiatrist and was refusing to pay so [she] paid them, to make him see the psychiatrist”.[29]
[29] Ibid, p 137.
29.The third transaction which occurred on 20 June 2008 in the amount of $400.00 was also discussed during the interview. The applicant’s savings account indicated a balance which was less than $5.00 of the overdraft facility. The applicant agrees there was also $400.00 withdrawn from a teller machine at Kawana on 20 June 2008.
30.The applicant agrees that there had been no transfer of funds from her personal loan account into her personal savings account throughout the period from 1 April 2008 to 3 December 2008. However, she had transferred approximately $400.00 from her personal loan account into her personal savings account approximately three (3) years ago but did not have any recollection of this transaction.[30] Included in the tribunal material is a copy of an extract from the applicant’s bank statement evidencing a transfer on 16 April 2007 from account 1015918L70.6 (loan account) to 1015918S1 (savings account) in the amount of $510.10.[31]
[30] Ibid p 140.
[31] Ibid p 178.
31.Also included in the tribunal’s material is a “Timeline of Events” prepared by the applicant setting out a number of significant family tragedies throughout the relevant period of the transactions up until the time of the interview.[32]
[32] Tribunal material vol 1, p 27.
32.When questioned about the transactions the applicant claimed to have little experience with the internet banking facility:[33]
[33] Tribunal material vol 2, p 144.
Burgess:Now what anyone’s going to ask is this. How did the CIB social club account appear on the screen on the internet in front of you
Wadham:I honestly don’t know it was there. I didn’t look. I sort of very rarely use it, I use it when I need to transfer money and I just didn’t look. I just transferred it straight from the bottom account to my S1 [savings]. It’s my own fault. Each transaction was ,maybe 20 seconds, 30 seconds. It’s my own stupidity because I didn’t check. I did not even know I had access to the account.
Burgess:So you don’t remember how it appeared on the computer.
Wadham: No
…
Burgess:437665S1. Now would you agree that that’s the account number that would have had to appear on your transaction on each of the occasions.
Wadham: I guess so yep.
Burgess: Which is in no way similar to
Wadham: No
Burgess: Your account personal account number
Wadham: No
Burgess:OK and the balances themselves weren’t were not similar because they were always positive balances whilst all your loan account balances and your savings account balances were all negative.
Wadham: Yep
33.At the conclusion of the Police interview the applicant made the following comment about the transactions: [34]
Wadham:Just what I said before, I accept full responsibility, its my own fault. As you can see I obviously don’t do bank statements, I’ve had to arrange to get them from the bank this morning, I don’t look at bank statements. I obviously need to check things better and pay closer attention when I’m doing things. There was no intent and, yeah, I’m sorry to have made you have to do this.
[34] Ibid p 145.
34.The Disciplinary Investigation Report, Findings and Recommendations prepared by Senior Sergeant Burgess (“Burgess report”) provides information about the internet banking facility available to members of the Queensland Police Credit Union and the steps to be taken to conduct on-line transfer of funds.[35] A copy of the transaction pages as they appear on the internet banking website have also been included in the tribunal material.[36]
[35] Tribunal material vol 1, p 15.
[36] Tribunal material, vol 2, pages 176-178.
Applicant’s Submissions
35.The applicant has outlined the following issues in the application filed 30 April 2010:
1.the respondent decision maker failed to determine the requisite standard of proof;
2.the respondent decision maker misinformed himself as to the state of the evidence in support of the element of intent;
3.the respondent decision maker’s decision to substantiate the matter was against the weight of evidence.
36.Mr Gnech, for the applicant in his written submissions, states that the allegation determined by the respondent against the applicant is “very serious and extremely serious gravity of consequences available is proven by the fact that the applicant was in fact dismissed”.[37] It is the applicant’s submission that the respondent has failed to state where on the sliding scale the standard of proof has been assessed.
[37] Outline of Submissions for the Applicant filed 28 June 2010, p 4.
37.The applicant does not dispute that the money was transferred as alleged but rather she transferred the funds in error without “intent”.
38.It is the applicant’s submission that the respondent bears the onus to prove to the requisite standard at law that she transferred the funds with “intent”.[38] Mr Gnech argues that “knowingly” is analogous to the term “intent” and that it can “only be inferred from the facts which have been proven”.[39]
[38] Ibid p 5.
[39] Ibid see Sinnasamy Selvanayagam v R [1951] AC 8.
39.Mr Gnech submits that the respondent decision maker relied on the findings made in the Burgess report. In particular that the applicant had operated her account close to the overdraft limit “drawing an inference that the applicant needed the money”.[40] However, the applicant’s bank statements reveal that during the period 1 April 2008 to 3 December 2008 inclusive the account was overdrawn on a total of nine (9) occasions. Furthermore, the applicant repaid the money within hours of being informed of the matter and this negates the inference “to proving intent”.[41]
[40] Outline of Submissions for the Applicant p 5.
[41] Ibid.
40.It is the applicant’s submission that she rarely used the internet banking facility and she “clicked” the bottom box in error because she had previously used the internet to transact money on 16 April 2007. Mr Gnech in written submissions states that the applicant simply “[clicked] the bottom account as this is what she had done previously” and she therefore did not “hold a belief” that there was a change to the existing circumstances, that is, that she had opened or closed any other accounts.[42] Furthermore, the applicant argues that she was not aware of having internet access to the Social Fund account at the relevant time of the transfers.
[42] Ibid.
41.The applicant argues that the savings account shows no transfer activity during the relevant time and that the account statement supports her evidence that she was not “familiar with the website and just completed the transactions as previously done so on the 16 April 2007”.[43]
[43] Ibid p 6.
42.The applicant also relies on the evidence of Proctor where he described the applicant in his notebook as being “shocked” when approached about the allegations and that this evidence indicates the applicant was not aware of the transactions.
43.The applicant also relies on various character references in relation to her good character “inferring the applicant’s honesty rather than dishonesty”.[44]
[44] Ibid p 7.
44.In relation to the admission made to Huth as to the transfer of funds from the Teachers Credit Union account, the applicant submits that she “must have said [this] in error given her distressed state and [did not] mean to deliberately mislead”.[45] The applicant argues that the tribunal, in determining whether an untruth told to Huth by the applicant will impact on the relevant standard of proof to be determined, should consider that the applicant did provide testament to her version of transferring money form her loan account during the QPS interview.[46] Although the tribunal may consider the decision in Petty v R; Maiden v R[47] in taking into account any untruth to Huth the applicant is required to participate in an interview by direction given.[48]
[45] Ibid.
[46] Ibid p 6.
[47] 65 ALR 625.
[48] Outline of Submissions for the Applicant p 7.
Respondent’s Submissions
45.Mr Nicolson, on behalf of the respondent, relies on the findings made in the Burgess report included in the tribunal material. In particular the steps to be taken by a member performing an internet transfer of money which requires the member to access the banking internet website, enter their account number and unique password, select an account via a “pull down menu” from which money is to be transferred and “indicate” the account to which the money is to be transferred via a pull down menu which must be another Queensland Police Credit Union account. The amount of money to be transferred is entered as is the member’s unique password. The transaction details are again displayed and the member must again enter their unique password to confirm the transaction.[49]
[49] Tribunal material vol 2, p 15.
46.Mr Nicolson, in his submissions, refers the tribunal to the findings made by the respondent decision maker as to the standard of proof required. In particular he submits that the respondent did determine the requisite standard of proof as being a “reasonably high standard” on the balance of probabilities having regard to the decision of Rogers v Leak.[50]
[50] TA 9 & 10 of 2000. Outline of submissions for the respondent filed 9 July 2010, p 8; and see Tribunal material p 89.
47.In relation to the element of “knowingly” Mr Nicolson refutes the applicant’s submission that this is not a term “known in law” and refers the tribunal to the decision in DPP Cth v Neamati[51]:
…knowledge was made out if the defendant was aware of the existence of this circumstance, that is of his lack of eligibility, or was aware that it will exist in the ordinary course of affairs, that is…he will not be eligible for the benefit that he intended to gain by his conduct.[52]
[51] (2007) NSWSC 746.
[52] at 12 per Howie J. See Outline of respondent’s submissions, p 9 (at 11).
48.It was held in the decision of Pereira v Director of Pubic Prosecutions (Cth)[53] that where “actual knowledge” is a specified element of the offence “it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence”.[54]
[53] (1988) 82 ALR 217.
[54] at 219 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. See Outline of respondent’s submissions p 9.
49.Mr Nicolson also refers to the decision in Tabe v The Queen[55] and “proof of that knowledge [which] may depend upon inference from primary facts but in some circumstances that inference may be irresistible”.[56]
[55] (2005) 225 CLR 418.
[56] Ibid p 10 and at 446 per Hayne J; and see He Kaw The v The Queen (1985) 157 CLR 523.
50.It is the respondent’s submission that the tribunal need only be satisfied as to the applicant having knowledge of the transfer of funds and not intention.
51.In relation to the applicant’s submission that the respondent has relied on circumstantial evidence, the tribunal is referred to the following findings of the respondent decision maker:
1.the applicant had not made any transfers into her savings account other than the Social Fund account.[57]
2.the “most logical and acceptable reason” for the applicant’s use of the funds is that she knowingly transferred funds from the Social Fund account and the transactions were not made in error as argued by the applicant.[58]
[57] Tribunal material vol 1, p 90.
[58] Ibid p 92.
52.Mr Nicolson submits on behalf of the respondent that the applicant has failed to provide a “reasonable explanation” as to the transfer of funds and the tribunal should be satisfied that given the “staged checking process” being the steps required to transfer funds on the internet, the applicant’s explanation is “unbelievable”.[59]
[59] Outline of respondent’s submissions p 11.
53.The tribunal is also referred to the noticeable difference in the respective account numbers; and the fact that the applicant’s savings account was operated at an account level close to the overdraft facility. Mr Nicolson argues that the applicant having repaid the money transferred from the Social Fund account does not prove the applicant was not in financial hardship at the relevant time.[60] Mr Nicolson submits that no weight should be attached to the one off transaction in 2007 given that this transaction occurred over 12 months prior to the relevant Social Fund account transfers (matter one).
[60] Ibid p13.
54.The tribunal is also referred to the respondent decision maker’s findings as to the weight to be attached, if any, to the applicant’s conversation with Huth and the contested allegation that the applicant had previously informed Huth that she thought she was transferring funds from her Teachers Credit Union account to her savings account. It is Mr Nicoloson’s submission that the respondent decision maker did not attach any weight to the inconsistent evidence however the evidence was clearly considered.[61]
[61] Ibid p 12; and see Tribunal material p 91.
55.In relation to the character references provided by the applicant, Mr Nicolson argues that the evidence “attracts little weight” when assessing the material, in particular the evidence adduced by the respondent as to the staged checking process for internet transactions which disproves the applicant’s submission that she simply did not check the account number from which funds were to be transferred.[62]
[62] Ibid p. 13.
Tribunal Findings
56.The tribunal rejects the applicant’s submission that the respondent decision maker failed to determine where on the sliding scale the requisite standard of proof has been assessed. The respondent decision maker in the Findings and Reasons refers to the decision in Rogers v Leak[63] and states that “…any adverse findings are [to be] made to this requisite standard”, that is, “…a reasonably high standard on the balance of probabilities”.[64] The applicant, should matter one be substantiated by this tribunal, is facing dismissal as the applicant does not dispute the issue of sanction in respect of matter one. Given the nature of the charges and the sanction to be imposed, the tribunal considers the requisite standard of proof to be assessed is as determined by the respondent decision maker being a reasonably high standard on the balance of probabilities.
[63] TA 9 & 10 of 2000.
[64] Tribunal material vol 1, p 88.
57.In relation to the applicant’s submission that the tribunal need only be satisfied as to the applicant’s “intent” in respect of matter one, the tribunal has had regard to the decision of the former Misconduct Tribunal in Crime and Misconduct Commission v Nikola & Anor.[65] The former Misconduct Tribunal held that it was open to the department responsible for drafting the disciplinary charges to particularise alleged conduct as “knowingly providing false information” as opposed to the wording used in the subject charge in that matter being “providing false information”. The former Misconduct Tribunal also considered the decision in Melling v O’Reilly[66] as to whether a finding by the Assistant Commissioner that the police officer involved was guilty of misconduct for furnishing a report which was “knowingly” false. The former Misconduct Tribunal found that the use of the words “falsely stating in a report” alleged a “false report” and it “did not assert that the report was made wilfully” by the omission of the word “knowingly” from the relevant charge to be considered.[67]
[65] TA 1 of 2007.
[66] TA 6 of 1991. See Crime and Misconduct Commission v Nicola at 15.
[67] Ibid.
58.Similarly, it was open in this matter for those drafting the disciplinary charges in respect of matter one to use the words “intentionally”. The tribunal must therefore consider in determining matter one the element of “knowingly” as stated in the relevant charge. However, the tribunal must be satisfied to the requisite standard on the balance of probabilities and in having regard to all of the material before it that the applicant had knowledge that is a belief of her “lack of eligibility” that the account number entered or selected by using the on-line internet banking facility was not the account number for the applicant’s personal loan account but rather the account number for the Social Fund.[68] The tribunal in considering the element of “knowledge” may draw inferences from the evidence “where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available”.[69]
[68] DPP Cth v Neamati and Pereira v Director of Pubic Prosecutions (Cth).
[69] Pereira v Director of Pubic Prosecutions (Cth) at 220.
59.It is clear from the applicant’s banking records that the savings account was operated at the overdraft limit during the relevant period of the transfers of funds in matter one. Banking records provided show that there were no transfers from the loan account to the applicant’s savings account during the period 01 April 2008 to 03 December 2008 (inclusive). However, a credit in the amount of $266.94 is made to the loan account from the QPS every fortnight as stated by the applicant during the interview on 3 December 2008.
60.The applicant during the interview on 3 December 2008 stated that she held at the relevant time an account with the Teachers Credit Union to which her pay is deposited and two accounts with the Police Credit Union being the savings account and the loan account.[70] Although the applicant denies having knowledge of internet access to the Social Fund account at the relevant time she is aware of the necessary steps required to enable an on-line internet transfer to take place. That is, the applicant agrees there is essentially a two-stage checking process of the accounts selected whereby it is firstly necessary to “select” the account, enter an amount to be transferred, type a reference (there was no reference entered in respect of the matter one transfers), a confirmation page showing the relevant account numbers to be transacted appears on the screen and then a prompt appears to enter a password before the transaction is completed.[71]
[70] Tribunal material vol 2, p 20.
[71] Ibid p 132.
61.The applicant stated during the interview on 3 December 2008 that she previously transferred money “a couple of years ago” from her loan account to her savings account and she did not check when the subject transfers were made in that she “chose the bottom account because that was [her] loan account” and then in that transaction page she chose her savings account before entering her password.[72]
[72] Ibid p 132.
62.The applicant has provided a copy of the transaction being an internet banking statement evidencing a transfer of $510.00 from the loan account to the savings account on 16 April 2007. The applicant has given evidence during the interview on 3 December 2008 that she made enquiries with the Police Credit Union and was informed that “it was just automatic” in that she was given internet access to the Social Fund when she became a signatory because she already had internet access for her own personal accounts.[73] The applicant submits that she simply clicked the bottom account as this is what she had done previously and therefore did not “hold a belief” that there was a change to the existing circumstances that is from the previous transaction conducted on 16 April 2007.[74] The tribunal has some concerns about the applicant’s submission as there is included in the tribunal material evidence which indicates that the applicant became a signatory to the Social Fund on 6 March 2006.[75] The applicant’s evidence that there was no change to the existing circumstances is contradicted. The applicant would have had internet access to the Social Fund at the time the 16 April 2007 transaction was completed and had the same steps been followed as submitted by the applicant then the funds would have been transferred from the loan account and not the Social Fund. However the tribunal has considered that there is no evidence available as to the order in which the accounts would have appeared on the applicant’s internet banking facility in particular whether the loan account appeared as the “bottom account” as stated by the applicant at the time the transfers were made.
[73] Tribunal material vol 2, p 120 and see paragraph 23 above.
[74] See paragraph 40 above.
[75] Ibid, p 26.
63.The tribunal does not accept the applicant’s evidence that she did not “check” the account selected on the internet banking transaction page at the time the transfers were made and that she simply selected the “bottom account because that was [her] loan account”. The account numbers for the applicant’s loan and savings accounts are noticeably different to the Social Fund account numbers; and there is a two-stage process to effect an internet transaction whereby the relevant accounts are selected and then the transaction details are shown before the member using the facility is again required to re-enter their password to confirm the transaction. The applicant does not dispute the steps to be taken to enable a transfer of funds using the internet banking facility clearly set out in the Burgess report. The applicant has also acknowledged during the interview that the account numbers for the savings and loan accounts are “in no way similar” to the Social Fund account numbers and that her savings and loan account balances were always “negative” and the Social Fund balance always positive.[76]
[76] Ibid p 144.
64.The tribunal in determining whether matter one is substantiated has also considered the evidence given by the applicant during the interview on 3 December 2008 that she withdraw money after each transfer of funds from her savings account as she was paying her partner’s medical bills. In particular the applicant states that she was paying for “psychiatrist visits” as her partner was “refusing to pay them”.[77] The applicant’s bank account facility (savings account) was operated at or close to the overdraft limit at the time the transfer of funds were made and without the transfer the applicant would not have available funds in her savings account from which to withdraw money. The tribunal has also considered the “Timeline of Events” prepared by the applicant and included in the tribunal material throughout the period from November 2007 to November 2009 (inclusive).[78] It is clear from the applicant’s chronology that a significant number of family tragedies including the death, treatment of illnesses and accidents resulting in injuries of family members took place during the time of the transfer of funds (matter one). The only inference to be drawn from the chronology is that the applicant would have been under a considerable amount of personal stress during the time the transfer of funds took place.
[77] Ibid p 137.
[78] Ibid p 28.
65.The tribunal has also considered the statements made by the applicant to Proctor and Huth on 11 July 2008 in relation to the notes recorded in their respective police notebooks. In particular, Proctor notes that when the applicant was confronted about the allegations being the subject of matter one she “appeared genuinely shocked” and explained that she must have transferred the funds “accidentally”. Huth, in his police notebook, refers to the applicant stating that she must have transferred the funds from her Teachers Credit Union account. The applicant later denied the statement made to Huth during her interview on 3 December 2008. It was after the conversations with Proctor and Huth that the applicant states she arranged for the funds to be paid back into the Social Fund account from her savings account.
66.The tribunal accepts the evidence of Proctor that the applicant was “genuinely shocked” when confronted with the allegations pertaining to matter one. The tribunal also accepts the evidence of Huth that the applicant stated she thought she was transferring funds from her Teachers Credit Unit account. The tribunal has however considered the applicant’s submission that she was “distressed” and did not mean to “deliberately mislead” when she spoke to Huth about matter one. The tribunal does not make any findings about the the applicant’s intentions in so far as whether the statement made to Huth was made with the intention to mislead as per the respondent’s submissions. The tribunal does not however accept the applicant’s submission that Proctor noting the applicant as appearing “shocked” when discussing matter one supports an inference of innocence about the transfer of funds. The applicant appearing “shocked” could also indicate the applicant was shocked to be confronted about matter one because she had in fact knowingly transferred the funds from the Social Fund account to her savings account.
67.The tribunal has also considered the fact that the applicant repaid the money transferred immediately after she was confronted by Proctor on 11 July 2008. The numerous references which support the applicant’s “good character” have also carefully been considered.[79] The applicant has been in the QPS for a number of years having commenced her first year as a constable on 6 August 1999 and some of the references included in the material before the tribunal attest to the fact that the applicant has been a valued and well-respected member of the QPS. The tribunal accepts Mr Nicolson’s submission made on behalf of the respondent that little or no weight should be attached to the applicant’s ability to repay the funds to the Social Fund account; and to the character references provided, in considering all of the evidence available and that the applicant has failed to provide “a reasonable explanation” for the circumstances relating to matter one.
[79] Ibid pages 31-59.
68.The tribunal is satisfied on the balance of probabilities having regard to the requisite standard being a reasonably high standard taking into account the “seriousness of the allegation, the inherent unlikelihood of a particular occurrence and the gravity of the consequences flowing from a particular finding”[80] that the applicant inappropriately utilised funds from the Social Fund account and that her conduct was improper in that she knowingly transferred the funds into her personal savings account on the relevant dates as provided in matter one. It is open to the tribunal to draw inferences from the evidence relevant to the circumstances surrounding matter one to determine whether the applicant “knowingly” transferred the funds from the Social Fund account. The tribunal has carefully considered all of the evidence in particular, the process or steps involved for transferring funds using the internet banking facility; the applicant’s personal circumstances at the relevant time including her decision to pay her partner’s medical expenses; the applicant’s savings account balance which was operated at or close to the overdraft limit at the relevant time; and the noticeable different account numbers for the applicant’s savings and loan accounts to that of the Social Fund account. The tribunal finds matter one is substantiated and the appropriate order is that the application is dismissed.
[80] Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors at 66. See also Rejfek v McElrey.
MATTERS TWO AND THREE
69.The applicant seeks a review in respect of matters two and three of the sanction imposed on the basis that the sanction was manifestly excessive. Although the tribunal has determined that matter one has been substantiated and therefore the sanction imposed, which is not contested by the applicant, is dismissal, the issue of sanction in respect of matters two and three has been considered.
70.The applicant does not contest the facts as alleged in relation to matters two and three but that the sanction imposed is manifestly excessive.
71.Evidence was adduced by the applicant in written and oral submissions by Mr Gnech at the hearing as to the process involved for Police Training Programs. A police officer is required to accumulate points each year to progress to the next level of pay by completing CAP books through the computer and a constable development program or officer in charge program (CDP or OIC). In completing the CAP book an officer is required to answer and submit a number of questions through the QPS computer based program.
72.It is the applicant’s submission that the matters outlined in two and three are matters of plagiarism and that the current QPS policy relating to plagiarism does not outline dismissal as a possible sanction.
73.Mr Gnech on behalf of the applicant submits that the applicant is remorseful for her conduct and was “experiencing numerous extremely traumatic events in her life” at the relevant time.[81] Furthermore, the applicant has accepted the seriousness of the conduct and cooperated with the disciplinary process.
[81] Ibid.
74.The applicant also argues in written submission that her conduct must be considered within the appropriate context in that every police station has a folder containing the answers for each of the CAP book questions. The applicant submits that there is currently no supervision of the training program and the program can be described as “farcical” in that the practice of not completing the CAP book themselves is supported by management and an officer audited in respect of the training process is given sufficient time to complete the books.[82]
[82] Outline of submissions for the applicant p 9.
75.Mr Gnech in submissions on behalf of the applicant argues that the sanction to be imposed should not result in the applicant’s career being terminated. Mr Gnech refers to the numerous references provided which he states supports the applicant’s good character and long standing career in the QPS. Mr Gnech argues that the appropriate sanctions to be imposed for matters two and three would be a reprimand or fine in the range of one (1) to three (3) paypoint levels in the range of $1,200.00 to $3.600.00 based on an amount of $1,200.00 per paypoint level.
76.Mr Nicolson on behalf of the respondent submits that matters two and three relate to the unauthorised access of the QPS computer system to complete modules for another member, the applicant’s partner and a serving police officer. The modules were completed over four (4) days in June 2008 during which time the applicant submitted a QPS paypoint progression form in her partner’s name to progress to the next pay level. After completing the relevant paypoint form on 31 July 2008 the applicant completed and submitted a report on 29 September 2008 in her partner’s name to the human resource manager about the circumstances surrounding the completion of the training unit program given that the applicant’s partner was on sick leave at the relevant time.
77.Mr Nicolson in his written submissions argues that the offences relating to matters two and three are serious and is not similar to an act of plagiarism. In particular the unauthorised access of the QPS computer system is an act of “dishonesty”.[83] There is also a circumstance of aggravation in that the applicant has prepared a false paypoint progression form benefiting her partner in an increase of pay and “continued to be deceitful” by preparing and submitting an email “containing further lies in an attempt to cover up her conduct”.[84]
[83] Outline of submissions for the respondent p 17.
[84] Ibid p 18.
78.In considering a review of the sanction imposed, the tribunal must have regard to the respondent decision maker’s views and give consideration to those views as to the appropriate disciplinary sanction to be imposed, particularly where the tribunal has the same views as to the “facts and inferences” of the original decision maker.[85] The tribunal must however make its own determination as to whether the sanctions imposed being dismissal for both matters two and three were manifestly excessive having regard to all of the circumstances.[86]
[85] Aldrich v Ross at 258.
[86] Ibid and see O’Keeffe v Deputy Commissioner Rynders referred to in the Outline of submissions for the respondent p 19.
79.The decision in Hardcastle v Commissioner of Police[87]sets out the purpose of disciplinary proceedings which is reflected in the Queensland Police Service Human Resource Management Manual[88]:
The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australia Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish…or to exact retribution.[89]
[87] (1984) 53 ALR 593.
[88] S 181.1.
[89] Hardcastle v Commissioner of Police at 597.
80.The tribunal has also considered the need for the relevant internal disciplinary authority that is the QPS to maintain public confidence in police officer conduct and to maintain the self-esteem of its members.[90]
[90] Police Service Board v Morris (1985) CLR 397.
81.The tribunal rejects the applicant’s submissions that matters two and three are matters of plagiarism and that the tribunal should have regard to the QPS plagiarism policy. The particulars of matters two and three are clearly stated and refer to the applicant “inappropriately” accessing and utilising the QPS computer system and providing false and misleading information relating to the applicant’s partner, another serving police officer. The applicant has not completed the relevant training program and correspondence as alleged for her own benefit but rather for the benefit of another QPS officer who is also her partner. There is no evidence to indicate that the applicant’s partner was involved in the applicant’s conduct as referred to in matters two and three. Furthermore, the applicant has continued to engage in dishonest conduct by completing and submitting a report dated 29 September 2008 in her partner’s name via email stating that her partner had completed the CAP units with the approval of his Doctor who had also discussed the matter with a QPS officer and her partner had attended the Surfers Paradise Police Station to complete the program.
82.The tribunal has considered the various references provided by the applicant which support her good character and long service in the QPS. The “Timeline of Events” prepared by the applicant has also been considered.
83.The tribunal agrees with the submissions made by Mr Nicolson on behalf of the respondent that “the evidence implicating the applicant in this deceptive and misleading conduct is strong”.[91] The applicant has not only inappropriately accessed the QPS computer system to complete the training program but has submitted a form to enable her partner to receive a financial gain and then completed and forwarded correspondence to the Human Resource Manager through the internal QPS email, as stated in matter three.
[91] Outline of submissions for the respondent p 18.
84.The tribunal has considered the findings made by the respondent decision maker referred to by Mr Nicolson in written submissions:
I firmly believe [the applicant’s] actions are far more serious than simply completing your personal CBT’s in a manner not authorised or approved by the Service. You have not only completed CDP on, on behalf of your partner you have submitted further correspondence on two occasions that was both false and misleading… There can be no doubt that you have done so for the benefit of your partner which demonstrates a clear disregard for the policy and procedure manifested in actions of dishonesty, the proposed result being a specific financial benefit for your partner that he would not rightly be entitled to… I firmly believe that your conduct warrants consideration of a serious sanction as a deterrent to all members of the Service. Your willingness to engage in matters that amount to dishonesty is very worrying to me and the Service as a whole. A well reasoned member of the community viewing your actions would have no hesitation in my opinion in determining, that you have conducted yourself in a manner and to a standard that is both disgraceful and highly unacceptable for a police officer.[92]
[92] Tribunal material p 75.
85.The tribunal agrees with the findings of the respondent decision maker that the applicant’s conduct warrants serious sanction as a deterrent to all members of the QPS and that such conduct by a police officer would be viewed as being “dishonest” and both “disgraceful and unacceptable” by the community. The tribunal finds that in considering the circumstances of matters two and three and having regard to all of the material, the applicant’s conduct is of such a serious nature as to erode public confidence in the QPS and the appropriate sanction imposed by the respondent being dismissal for matters two and three was appropriate.
86.The tribunal orders as follows:
1.In respect of matter one the respondent’s decision is affirmed.
2.In respect of matters two and three the respondent’s decision as to the sanction imposed is otherwise affirmed.
3.The applicant’s application is dismissed.
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