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  • Unreported Judgment

Helen Maree Newman v Deputy Commissioner Tracey Linford APM & Crime and Corruption Commission

 

[2020] QCAT 179

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Newman v Deputy Commissioner Linford APM & Anor [2020] QCAT 179

PARTIES:

Helen Maree Newman

(applicant)

v

Deputy Commissioner Tracy Linford APM

Crime and Corruption Commission

(respondents)

APPLICATION NO/S:

OCR246-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 May 2020

HEARING DATE:

6 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The decision of Deputy Commissioner Tracy Linford APM of 24 June 2019 that one ground of misconduct concerning Helen Maree Newman is substantiated, is confirmed.

THE TRIBUNAL DIRECTS THAT:

  1. Helen Maree Newman must file in the Tribunal two (2) copies and give to Deputy Commissioner Tracy Linford APM and the Crime and Corruption Commission one (1) copy of written submissions in respect of sanction by:

4:00pm on 10 June 2020 

  1. Deputy Commissioner Tracy Linford APM and the Crime and Corruption Commission must file in the Tribunal two (2) copies and give to Helen Maree Newman one (1) copy of written submissions in response by:

4:00pm on 1 July 2020

  1. Helen Maree Newman must file in the Tribunal two (2) copies and give to Deputy Commissioner Tracy Linford APM and the Crime and Corruption Commission one (1) copy of written submissions in reply by:

4:00pm on 15 July 2020

  1. Unless any party requests a further oral hearing and unless otherwise ordered by the Tribunal, the matter will be further determined on the papers and without an oral hearing on a date not before:

4:00pm on 22 July 2020

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION –DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where disciplinary proceedings commenced ­– where findings made that misconduct proven and sanction imposed – where subject officer no longer a member of the Queensland Police Service – where disciplinary declaration issued – where subject officer applied to review the substantiation decision – where the Crime and Corruption Commission applied  to review the sanction decision – whether subject officer provided false and misleading information to a superintendent of the Queensland Police Service and investigators of the Ethical Standards Command

Crime and Corruption Act 2001 (Qld), s 219BA, s 219C,  s 219G(2), s 219B, s 219H, s 444, Schedule 2

Police Service Administration Act 1990 (Qld), s 1.4.

Police Service (Discipline) Regulations 1990 (Qld), s 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 66

Aldrich v Ross [2001] 2 Qd R 235

Briginshaw v Briginshaw (1938) 60 CLR 336

Hardcastle v Commissioner of Police (1984) 53 ALR 593

Murray v Deputy Commissioner Stewart [2011] QCAT 583

APPEARANCES & REPRESENTATION:

Applicant:

S H Hollands instructed by Gilshenan & Luton

First Respondent:

M D Nicolson instructed by Legal Services, Queensland Police Service

Second Respondent:

J Gorry, Crime and Corruption Commission

REASONS FOR DECISION

  1. [1]
    On 24 June 2018, Deputy Commissioner Tracy Linford found one ground of misconduct presented against Sergeant Helen Newman to be substantiated and demoted Ms Newman in rank from Sergeant to Senior Constable.
  2. [2]
    Relevantly, the Deputy Commissioner found that between 15 October 2017 and 20 March 2018, inclusive, Ms Newman’s conduct was improper in that she provided false and misleading information to Superintendent McNab (‘McNab’) and Queensland Police Service (‘QPS’) investigators attached to the Ethical Standards Command (‘ESC’).[1]
  3. [3]
    Ms Newman left the QPS after the disciplinary proceedings were commenced. The Deputy Commissioner was satisfied that Ms Newman’s conduct would have resulted in a sanction of demotion had she remained a member of the QPS and issued a disciplinary declaration pursuant to Part 7A of the Police Service Administration Act 1990 (‘PSAA’).
  4. [4]
    Ms Newman seeks to review the Deputy Commissioner’s finding of misconduct and the decision to issue a disciplinary declaration that was made by the Deputy Commissioner on the basis that Ms Newman would be demoted from Sergeant to Senior Constable had she remained in the QPS (‘the sanction decision’). The Crime and Corruption Commission (‘the Commission’) also seeks to review the Deputy Commissioner’s sanction decision.[2]
  5. [5]
    It is common ground that the Tribunal will firstly review the Deputy Commissioner’s finding of misconduct. If, on review, the Tribunal finds the one ground of misconduct to be substantiated, the parties will be given an opportunity to address the Tribunal further in relation to the Deputy Commissioner’s sanction decision.

The Tribunal’s role on review

  1. [6]
    The Tribunal stands in the shoes of the decision-maker (here the Deputy Commissioner) exercising the same powers as the decision-maker under the enabling act to produce the correct and preferable decision.[3] The review proceeds before the Tribunal as a rehearing on the evidence that was before the decision-maker commonly referred to as the ‘section 21 material’.[4] It is appropriate to give ‘considerable weight’ to the findings of the decision-maker on the basis that the decision-maker might be thought to have ‘particular expertise in the managerial requirements of the police force’.[5] The Tribunal does, however, have a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.[6] I adopt the observations made by the Tribunal in Murray v Deputy Commissioner Stewart:[7]

Considerable respect is paid in this Tribunal to the views of the original decision maker [see Aldrich v Ross [2001] 2 Qd R 235], but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own views. Aldrich v Ross (at p 257) recognises that the independent review tribunal is the only vehicle by which a public perspective is brought to bear in police disciplinary matters, and accordingly there will be cases where it will be appropriate and necessary to depart from the views of the original decision maker.[8]

  1. [7]
    In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.[9] Further, the Tribunal must be satisfied and find accordingly that the conduct complained of is police misconduct. ‘Misconduct’ is conduct that, if proven, is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.[10]

Background

  1. [8]
    It is helpful to set out the following background relevant to the one allegation of misconduct concerning Ms Newman as follows:[11]
    1. (a)
      On 24 August 2017, ESC commenced an investigation in relation to Detective Inspector Colfs (‘Colfs’).
    2. (b)
      Ms Newman worked as a support officer at the Mackay District Office along with other officers including Colfs.
    3. (c)
      On 13 October 2017, Colfs was suspended from duty.
    4. (d)
      On 13 October 2017, Colfs’ office was searched by Superintendent Bruce McNab (‘McNab’) and Senior Sergeant Matthew Gerry (‘Gerry’).
    5. (e)
      No QPS official diaries were located during the search and Colfs’ office remained unlocked.
    6. (f)
      On 16 October 2017, McNab and Gerry searched Colfs’ office. No official diaries were located during the search. McNab asked Ms Newman if she had seen any of Colfs’ diaries. Ms Newman replied she ‘hadn’t’.
    7. (g)
      On or about 23 October 2017, Ms Newman packed up the drawers and bookshelves of Colfs’ office into several boxes and relocated them to her office. Ms Newman later told ESC investigators that amongst the contents were ‘big blue books’.
    8. (h)
      On 5 December 2017 a telephone call between Colfs and Ms Newman was intercepted (‘the intercept’). The intercept was lawfully obtained.
    9. (i)
      During the intercept Colfs asked Ms Newman if she had packed up her drawers (in her office). Ms Newman told Colfs that, as stated, ‘…I have some diaries’.
    10. (j)
      On 12 December 2017, Colfs sent Ms Newman a text message asking about some of her belongings. Ms Newman replied to Colfs and stated that she has her ‘scanner and reading glasses and the notebook’.
    11. (k)
      On 24 December 2017, Detective Senior Sergeant Samantha Bliss packed up the remainder of Colfs’ office and delivered several boxes containing Colfs’ personal effects to her residence.
    12. (l)
      On 7 February 2018, Detective Acting Inspector Cameron Herpich (‘Herpich’) sent an email to Ms Newman stating that he requires Colfs’ work diaries.[12] Ms Newman confirmed that she received Herpich’s email during a police interview on 19 February 2018.[13]
    13. (m)
      On 8 February 2018, McNab advised Ms Newman that he had searched Colfs’ office and had not located any police diaries. On the same day Ms Newman responded to Herpich’s email received on 8 February 2018 stating that, amongst other things, ‘…there are no diaries in the office to provide’.[14]
    14. (n)
      On 19 February 2018, Ms Newman was interviewed about Colfs’ diaries by the ESC (the first interview). During the interview Ms Newman was asked, amongst other things, whether she ‘ever got any diaries out of Colfs office at all’? Ms Newman responded, ‘No’.
    15. (o)
      On 16 March 2018 Detective Inspector Prestige (‘Prestige’) sent an email to McNab requesting that he provide information about Colfs’ diaries and conversations with Ms Newman about Colfs’ diaries.[15]
    16. (p)
      On 16 March 2018, McNab sent an email to Prestige stating that, amongst other things, he asked Ms Newman if she had seen any diaries and Ms Newman said ‘No’.
    17. (q)
      On 19 March 2018, Ms Newman was interviewed by ESC (the second interview).
    18. (r)
      On 14 August 2018, Ms Newman was stood down from duty.
    19. (s)
      On 9 November 2018, Ms Newman separated from the QPS.
    20. (t)
      Colfs was not interviewed by the QPS and was medically discharged from the QPS in April 2019.
    21. (u)
      The location of Colfs’ diaries is still unknown.

Particulars of the alleged misconduct

  1. [9]
    The one allegation of misconduct contains further and better particulars and references to dates of conversations, emails and extracts from transcripts of interview taken from a number of police disciplinary interviews. The allegations and relevant particulars concern the identification and location of Colfs’ official police diaries and an intercept of a telephone conversation between Ms Newman and Colfs on 5 December 2017 (‘the intercept’).
  2. [10]
    Ms Newman participated in two directed interviews with ESC on 19 February 2018 and 19 March 2018, respectively. The recording of the intercept on 5 December 2017 was played to Ms Newman during the QPS interview on 19 March 2018.
  3. [11]
    Following a disciplinary hearing, the Deputy Commissioner made findings contained in the reasons document about whether Ms Newman knew where Colfs’ official police diaries were located.[16] Relevantly, the Deputy Commissioner concluded from listening to the intercept that Ms Newman must have known where the official police diaries were located.
  4. [12]
    The Deputy Commissioner was satisfied that Ms Newman was aware that Colfs’ diaries were being sought after by McNab early after Colfs’ suspension from the QPS (on 13 October 2017). Although not expressly stated in the reasons, the Deputy Commissioner accepted McNab’s evidence that he had a lengthy conversation with Ms Newman after his (McNab’s) ‘cursory search’ on 16 October 2017 of Colfs’ office. The Deputy Commissioner was satisfied that Ms Newman knew McNab was looking for the diaries. Further, the Deputy Commissioner found the intercept to be ‘compelling’ evidence that Ms Newman removed Colfs’ official diaries and did so knowing that McNab wanted them for the investigation into allegations against Colfs.
  5. [13]
    The Deputy Commissioner considered the ESC investigator’s interview with Ms Newman on 19 February 2018 during which Ms Newman was questioned about the location of Colfs’ diaries. The Deputy Commissioner found Ms Newman’s answers ‘concerning’ as Ms Newman denies removing Colfs’ diaries from her office. Further, as reflected in the reasons document, Ms Newman admits to seeing ‘big blue books’ similar to QPS official diaries but did not look at them or confirm that they were in fact official diaries. The Deputy Commissioner found that Ms Newman did not advise McNab that there were some ‘big blue books’ located in Colfs’ office knowing that McNab was seeking the diaries. The Deputy Commissioner also considered the answers given by Ms Newman during the ESC interview when she was questioned about the intercept and what Ms Newman had said to Colfs about the diaries. The Deputy Commissioner found Ms Newman’s answers to be, as stated, ‘confused, almost evasive’. The relevant extract from the Deputy Commissioner’s reasons document is as follows:

…I am unable to accept that you provided anything other than false and misleading information on the topic of diaries. Having regard to the potentially grave consequences for you, I am satisfied that you provided false and misleading information to Superintendent McNab and ESC investigators.[17]

  1. [14]
    In the oral hearing, Mr Nicolson appearing for the Deputy Commissioner submitted that each of the particulars contained in matter one must be proven in order for the Tribunal to find that the misconduct is substantiated. Mr Nicholson referred the Tribunal to each of the particulars and the relevant evidence contained in the Section 21 material.[18] Mr Nicholson submitted that there are two elements of the charge in that Ms Newman’s conduct was improper because she provided false and misleading information. Relevantly, Mr Nicolson submitted that Ms Newman provided false and misleading information to McNab and ESC investigators about Colfs’ diaries that were required (by the ESC) while Colfs was suspended. Mr Nicolson submitted that it is clear from the intercept that Ms Newman has diaries belonging to Colfs because McNab has said that Colfs might need them.
  2. [15]
    In written submissions, Ms Newman contends that there is no evidence to support a finding that Colfs’ diaries were in her (meaning Colfs’) office prior to or after 13 October 2017. Ms Newman denies that she provided ‘false and misleading’ information.[19] More importantly, Ms Newman denies that she provided a false and misleading statement to officers from the ESC and McNab in respect of the whereabouts of the official blue diaries belonging to Colfs.[20] In further written submissions, Ms Newman submits that, amongst other things, the Deputy Commissioner must prove that she was the person who removed Colfs’ official police diary from her office or elsewhere.[21] Ms Newman submits that the evidence simply does not even go close to supporting such a finding and it follows that in the absence of such a finding, she cannot be found guilty of providing ‘false and misleading information’.[22] Ms Newman says that only Colfs might know where the police diary might be, and she (meaning Colfs) has not been interviewed.[23]
  3. [16]
    In the oral hearing, Mr Hollands appearing for Ms Newman submitted that the inference that Ms Newman knew the whereabouts of official police diaries is not the only one that can be drawn from the extract of the telephone intercept and Ms Newman provided a reasonable explanation concerning the intercept. Mr Hollands again submitted that the only person with reliable knowledge concerning the whereabouts of the police diaries is Colfs and she has not been interviewed.

Tribunal findings

Particular one – McNab’s conversation with Ms Newman on 16 October 2017

  1. [17]
    It is contended that on 16 October 2017, after searching Colfs’ office for diaries, McNab asked Ms Newman if she had seen any of Colfs’ diaries. Ms Newman replied that she ‘hadn’t’.
  2. [18]
    During the ESC interview, McNab was questioned about his conversations with McNab and the location of Colfs’ diaries. McNab stated that he had ‘quite a lengthy conversation’ with McNab about Colfs’ diaries after his ‘cursory’ search of Colfs’ office on 16 October 2017.[24] McNab stated that he explained to Ms Newman the ‘importance of them’ meaning the diaries and how he was really keen to get a hold of them.[25] I accept McNab’s evidence given about his conversation with Ms Newman on 16 October 2017 during which he discussed Colfs’ diaries. McNab’s evidence given during the ESC interview is consistent with information he reported by email to Prestige on 16 March 2018. In the email dated 16 March 208, McNab refers to his, as stated, ‘brief’ search of Colfs’ office that he conducted with Gerry and his conversation with Ms Newman about Colfs’ diaries. The relevant extract from McNab’s email is as follows:

On the 16th of Oct 2017 I attended the office of the DI with Sen Sgt Gerry PPM Mackay. At this time, I conducted a brief search of the office to locate any diaries. I then spoke with [Ms Newman] about their possible location, as I wanted to make sure they were available for both the DI and ESC. She told me she didn’t know where they were, and didn’t have any of them. I asked if she located them to let me know. I then briefed [Ms Newman] as to the location of all my diaries should the need ever arise…[26]

  1. [19]
    Ms Newman does not dispute that McNab asked her about Colfs’ diaries on 16 October 2017. Ms Newman accepts that on 16 October 2017 (when McNab asked her if she has seen any of Colfs’ diaries) she told McNab she ‘hadn’t’ (seen the diaries).[27] I am satisfied that particular one of the one allegation of misconduct is proven. I find that on 16 October 2017, after McNab and Gerry conducted a brief search of Colfs’ office for diaries, McNab asked Ms Newman if she had seen any of Colfs’ diaries. Ms Newman told McNab that she ‘hadn’t’ (meaning Ms Newman had not seen Colfs’ diaries).[28]

Particular two – Herpich’s email to Ms Newman dated 7 February 2018

  1. [20]
    Herpich sent an email to Ms Newman on 7 February 2018 requesting that Ms Newman provide Colfs’ diaries. In the email sent by Herpich to Ms Newman on 7 February 2018, Herpich states as follows:

…I require all [Colfs’] work diaries since she commenced as the Detective Inspector in Mackay so that she can refer to them (if required) during her interview…[29]

  1. [21]
    Ms Newman does not dispute that Herpich emailed her on 7 February 2018.[30] Further, during the police interview on 19 March 2018, Ms Newman confirmed that Herpich emailed her asking about Colfs’ diaries.[31] I am satisfied that particular two of the one allegation of misconduct is proven. I find that on 7 February 2018, Herpich emailed Ms Newman stating that he required Colfs’ work diaries so that Colfs’ can refer to them (meaning her diaries) during her interview.

Particular three – Ms Newman’s alleged conversations with McNab about Colfs’ diaries

  1. [22]
    McNab is alleged to have spoken to Ms Newman about the location of Colfs’ diaries on more than one occasion.  One of the conversations between McNab and Ms Newman is alleged to have happened before Ms Newman sent her reply to Herpich’s email about the location of Colfs’ diaries (sent on 8 February 2018).
  2. [23]
    Relevantly, particular three refers to McNab’s alleged further conversations with Ms Newman during which he asked Ms Newman if she had seen any diaries when she packed Colfs’ property into boxes. Ms Newman is alleged to have told McNab that she, as contended, ‘hadn’t’ (meaning she had not seen Colfs’ diaries).
  3. [24]
    It is non-contentious that on 8 February 2018, Ms Newman replied to Herpich’s email received by her on 7 February 2018, as follows:

I have spoken to [McNab] and he advised that he searched the office on the day of [Colfs’] suspension to look for diaries and notebooks and was unable to locate any. We have searched the District Office and there are no diaries in the office to provide.[32]

  1. [25]
    On a fair reading of Ms Newman’s email to Herpich on 8 February 2018, I am satisfied that Ms Newman had a conversation with McNab about Colfs’ diaries before she (Ms Newman) sent her reply email to Herpich on 8 February 2018. Ms Newman stated in her email that she has, as stated, ‘spoken’ to McNab.
  2. [26]
    Ms Newman told an investigator during the ESC interview on 19 February 2018 that McNab told her that he had searched Colfs’ office after she (Colfs) was suspended (on 13 October 2017).[33] Further, during the ESC interview, Ms Newman said that McNab asked her ‘the other day’ did she box up diaries.[34] Ms Newman also recalls McNab asking her about Colfs’ diaries after she had packed up Colfs’ belongings (on 23 October 2017). The relevant extract from the interview is as follows:

HERPICH: Alright the big blue books after Mr MCNAB had gone in there and you packed up um D-I COLFS [sic] office did you tell Mr MCNAB there were some big blue books in there at all?

NEWMAN: I told him there was a heap of stuff in the bottom draw [sic] that I'd boxed up.

HERPICH: Yeah but specifically the big blue books

NEWMAN: He said did you box up any diaries he said to me the other day did you box up any diaries I said boss I don't really know what they were there was a heap of stuff in there, I really don't know what they were. I didn't look at the front cover of the books, I didn't open the books, I just picked it up UI and put it in a box.

HERPICH: Alright but what you said to me this afternoon is you've indicated there were some big blue books like the ones that we're um Detective NEWTON and I UI

NEWMAN: Similar to that yes but I don't know whether they were, I don't know I don't have a diary or a notebook I have a little one like a normal Q-P-S one so I don't know if there are other stuff like that there was folders there was paperwork and I didn't look at the front of the books, I didn't look in the books I just put them all in a box and sent them. I didn't actually look in at any of the stuff to be honest with you.[35]

  1. [27]
    During the interview on 19 March 2018, Ms Newman confirmed that McNab had asked her about Colfs’ diaries after she received Herpich’s email (on 7 February 2018). Ms Newman said as follows:

Yeah, he asked me if I knew-well I got an email from Mr Herpich asking me if I could tell him if Nikki's diaries were here. I can't remember the exact words, and I spoke to Mr NcNab and said 'Do you know where any of Nikki's diaries are?' and he said 'No. Send an email back to Cameron [Herpich] saying that I had a look in Nikki's office the day of the stand-down and I couldn't find any. Do we have any here?' and I said 'Not that I know of.'

I went and asked Leslie, the admin lady who I assume would have them. She said she doesn't have any diaries from any of the inspectors.[36]

  1. [28]
    McNab’s email sent to Prestige on 16 March 2018 is relevant to particular three of the allegations. McNab’s email to Prestige dated 16 March 2018 responds to Prestige’s request (made in an earlier email dated 16 March 2018) to McNab for him to recall any conversation with Ms Newman in relation to diaries and when she (Ms Newman) packed up [Colfs’] office into boxes. In the email McNab told Prestige that on 7 February 2018 he asked Ms Newman if she had seen Colfs’ diaries and she said ‘No’. McNab states that (on 7 February 2018) he told Ms Newman to reply (meaning to Herpich’s email of 7 February 2018) to, as stated, ‘that effect’.
  2. [29]
    Further McNab told Prestige (in McNab’s email dated 16 March 2018) that on 9 February 2018 he rang Ms Newman and asked her if she had seen ‘any diaries’ when she packed up Colfs’ office and Ms Newman said ‘No...but she was just packing up papers they could have been there’. McNab states that he asked Ms Newman if she had ever had any of the diaries and she said ‘No’. The relevant extracts from McNab’s email to Prestige are set out as follows:

On the 16th of Oct 2017 I attended [Colfs’] office with [Gerry]. At this time, I conducted a brief search of the office to locate any diaries. I then spoke with [Ms Newman] about her possible location, as I wanted to make sure they were available for both the DI and ESC. She told me she didn’t know where they were and didn’t have any of them. I asked if she located them to let me know. I then briefed [Ms Newman] as to the location of all my diaries should the need ever arise….I had a conversation with [Ms Newman] sometime in the weeks following the suspension of [Colfs] as I observed that her office had been partially packed. …[Ms Newman] told me she [packed Colfs’ office]. All items from the desk and cupboards had been packed into boxes which were on the floor. Items left in the office were what I call “[knick] knacks” and personal items such as pictures and books left on two book cases.

On the 7th Feb I observed an email from [Herpich] about the diaries of [Colfs]. I spoke with [Ms Newman] and said I didn’t find them when I looked did she ever see them? She said no, I told her to reply to that effect. On the 9th Feb I rang [Ms Newman] and we discussed other matters. I had been thinking about that email, and the fact that when I returned from leave, after Christmas 2017, all the remaining belongings of [Colfs] had been removed from her office. I asked [Ms Newman] if when she had packed the rest of the belongings up did she see any diaries? She said she had packed the office. I asked her is [sic] she had seen the diaries, and she said no, but she was just packing up papers, they could have been there. I said she knew what the diaries looked like they would stand out? She repeated she didn’t see any. I asked her if she had ever had any of the diaries and she said no. I recorded notes of this conversation on 9/2 on page 131 of diary J0015114.[37]

  1. [30]
    Ms Newman disputes that she had conversations with McNab on 7 February 2018 and again on 9 February 2018, about Colfs’ diaries.[38] Notwithstanding, Ms Newman does, however, in effect, refer to a conversation she had with McNab on 8 February 2018 when she responded by email to Herpich. Ms Newman also refers more generally to a discussion with McNab about Colfs’ diaries during the ESC interview on 19 February 2018.
  2. [31]
    On 19 February 2018, when questioned by an ESC investigator, Ms Newman recalls that McNab asked her about Colfs’ diaries. Ms Newman said that McNab asked her ‘did you box up any diaries’ and she told McNab ‘I don’t really know what they were…’.[39] Further, during the ESC interview with Ms Newman on 19 March 2018, Ms Newman states that when she received Herpich’s email (on 7 February 2018) she spoke to McNab about Colfs’ diaries and recalls a conversation she had with McNab about Colfs’ diaries.[40] As discussed above, Ms Newman sent an email to Herpich on 8 February 208 stating that there are no diaries in the office.
  3. [32]
    I have considered all of the evidence and find that, on balance, McNab had a conversation with Ms Newman on 7 February 2018 and again on 9 February 2018 about the location of Colfs’ diaries. I find that on 7 February 2018 and again on 9 February 2018, McNab asked Ms Newman if she had seen Colfs’ diaries when she packed up Colfs’ belongings and Ms Newman told McNab that she had not seen Colfs’ diaries. I find particular three of the one allegation of misconduct is proven.

Particular four – Ms Newman’s email to Herpich on 8 February 2018

  1. [33]
    It is contended that Ms Newman responded to Herpich’s email on 8 February 2018 stating that we have searched the District Office and there are no diaries (belonging to Colfs). In the email dated 8 February 2018 Ms Newman states as follows (emphasis added):

…[McNab] searched the office on the day of [Colfs’] suspension to look for diaries and notebooks and was unable to locate any. We have searched [Colfs’] office and there are no diaries in the office to provide.[41]

  1. [34]
    I find particular four of the one allegation of misconduct is proven. I find that Ms Newman told Herpich in an email dated 8 February 2018 that there are no diaries (belonging to Colfs) in the office to provide.

Particular five – answers given by Ms Newman during the ESC interview on 19 February 2018 about Colfs’ diaries

  1. [35]
    During the ESC interview on 19 February 2018, Ms Newman was questioned about the location of Colfs’ diaries. Relevantly, Ms Newman told Herpich that she (Ms Newman) had ‘no idea’ what happened to Colfs’ work diaries.[42] The relevant extracts from the transcript of interview are as follows:

Herpich: Okay alright um so bearing in mind as I understand she didn't come into work on the day that she was actually suspended um her diary do you know where her diary may have been?

Newman: No.

[And further:]

Herpich: You got [sic] no idea what happened to um D-I Colfs [sic] diaries at all, her work diaries?

Newman: There so Nicky had a heap of stuff in her office um Mr SHADLOW who was relieving here said can we get some of this stuff out of here so I just boxed up, he was in the office when I did it, I just boxed up a heap of stuff out of the drawers put them in boxes and they went like in back into my office and then um Sam BLISS went down to Hervey Bay UI her daughter for sport and she took a whole heap of Nicky's stuff. So, Sam also boxed up the rest of the stuff that was in there, however there were plastic tubs in there that I don't know what was in them I don't know.[43]

  1. [36]
    I find that during the interview on 19 February 2018 Ms Newman told Herpich that she packed up Colfs’ ‘stuff’ (on or about 23 October 2018). It is clear from the answers given by Ms Newman, during the interview, that she told Herpich that she had ‘no idea’ as to the whereabouts of Colfs’ diaries. I find particular five of the one allegation of misconduct is proven. I find that on 19 February 2018, during the ESC interview conducted by Herpich, Ms Newman was asked numerous times about the location of Colfs’ diaries and on each occasion, she denied any knowledge as to the location of Colfs’ diaries.
  2. [37]
    Ms Newman was also questioned about what she saw when she was emptying Colfs’ office drawers during the ESC interview on 19 February 2018. Ms Newman told Herpich about the contents of Colfs’ belongings that she had packed into boxes. Ms Newman stated that that there were ‘probably’ a couple of ‘big blue books’ but she did not look at them to see ‘who’s [sic] they were’. Ms Newman said that she packed up what was in the bottom drawer of Colfs’ office. Ms Newman was questioned about whether she had ever got diaries out of Colfs’ office and whether she ever had any diaries in her possession. Ms Newman replied, ‘No’. The relevant extracts from the transcript of interview are as follows:

Herpich: .. you would have seen what you were taking out of the drawers?

Newman: So in the bottom drawer in Nicky's office there was paperwork like that and I just picked it all up, I didn't go through anything and just out it all into a box and then they went.

Herpich: I understand that but diaries in particular they're quite distinctive.

Newman: Yep so they're probably would have been a couple of big blue books like that I didn't look in them and see who's [sic] they were or...

Herpich: Alright they were in her office?

Newman: In the bottom drawer.

Herpich: Yep in her office and you packed those up?

Newman: I packed up what was in the bottom drawer yeah.

Herpich: I understand that but you said that there was big blue books like this-

Newman: Similar to that I don't know­

Herpich: -in her bottom drawer.

Newman: - what they were, honestly didn't look at them.

Herpich: Have you ever got um diaries out of D-I Colfs [sic] office at all?

Newman: No.[44]

[And further:]

Herpich: Have you ever had any diaries in your possession at all?

Newman:      No.[45]

Particular six – further answers given by Ms Newman during the ESC interview on 19 February 2018 about Colfs’ belongings (packed up by Ms Newman)

  1. [38]
    Particular six concerns what Ms Newman saw when she was packing up Colfs’ drawers. There is evidence before me that Ms Newman told Herpich during the ESC interview on 19 February 2018 that Colfs did ‘take a diary to the meetings’[46] and she (Ms Newman) had ‘no idea’ what happened to Colfs’ work diaries.[47] Ms Newman told Herpich on 19 February 2018, that she had ‘probably’ seen a couple of ‘big blue books’ when she was packing up Colfs’ belongings[48] but did not look at them.[49] Ms Newman also told Herpich during the interview that she packed Colfs’ belongings into boxes[50] and did not take Colfs’ diaries out of Colfs’ office[51] and confirmed that she has never had any diaries belonging to Colfs in her possession and Colfs has never given her anything to hold onto. The relevant extracts from the transcript are as follows:[52]

HERPICH: Okay was [Colfs] a person that used a diary fairly regularly?

NEWMAN: Um [Colfs] had a lot of note books, I don’t know if she used a diary. She use [sic] to take a diary to the meetings yes.[53]

HERPICH: You got [sic] no idea what happened to [Colfs’] diaries at all, her work diaries?

NEWMAN: There so [Colfs] had a heap of stuff in her office um…I just boxed up, [Mr Shallow] was in the office when I did it, I just boxed up a heap of stuff out of the draws [sic] put them in boxes and they went like in back into my office and then um…Sam boxed up the rest of the stuff that was in there, however, there were plastic tubs in there that I don’t know what was in them I don’t know.[54]

HERPICH: you would have seen what you were taking out of the draws [sic]?

NEWMAN: So in the bottom draw [sic] in [Colfs’] office there was paperwork like that and I just picked it all up, I didn’t go through anything and just out it all into a box and they went.

HERPICH: I understand that but diaries in particular they’re quite distinctive.

NEWMAN: Yep so they’re probably would have been a couple of big blue books like that I didn’t look in them and see who’s [sic] they were or…

HERPICH: Alright they were in [Colfs’] office?

NEWMAN: In the bottom drawer.

HERPICH: Yep. In [Colfs’] office and you packed those up?

NEWMAN: I packed up what was in the bottom draw [sic] yeah.[55]

HERPICH: Alright have you ever got any um diaries out of D-I COLFS [sic] office at all?

NEWMAN: No.

HERPICH: She's never given you anything to hold onto?

NEWMAN: No.

HERPICH: Alright and but you are aware that diaries are accountable items and so on?

NEWMAN: Yeah.[56]

Particulars seven and eight – answers given by Ms Newman during the ESC interview on 19 March 2018 about the intercept (the telephone call to Colfs on 5 December 2017)

  1. [39]
    Particular seven concerns the ESC interview on 19 March 2018 during which Ms Newman was questioned about her telephone conversation with Colfs (the intercept) on 5 December 2017. Before turning to the evidence or explanations given by Ms Newman during the ESC interview about her telephone conversation with Colfs, it is convenient to set out relevant extracts from the transcript of the intercept as follows:[57]

Colfs: ... In my drawers, have you packed my drawers at all?'  In my drawers, have you packed my drawers at all?

Newman: Uh Uh, nah, cause I didn't know what was work, Oh Oh hang on yes I have some diaries.

Colfs: Oh yes, so don't worry ...

Newman: Which I took, because I was asked if maybe we should go through and get them.

Colfs: By who.

Newman: Bruce, cause you might need them,., he said you might need them. But I already had them. I said I don't know. Anyway, he looked he goes, no there doesn't seem to be any in here, I said I don't know.

Colfs: He's looking in my office.

Newman: He said she'll need these for her interview.

  1. [40]
    Ms Newman was questioned on 19 March 2019 about whether she had had a conversation with Colfs in relation to diaries since she (Colfs) had been stood down, Ms Newman said, ‘Not that I can remember’. The relevant extract from the transcript of interview on 19 March 2019 is as follows:[58]

Newton:  You've never ever, to your knowledge, had any conversation with Detective Inspector Coifs [sic] in relation to diaries?

Newman: Since she's been stood down

Newton:  Yes?

Newman: Not that I can remember.[59]

  1. [41]
    Ms Newman was questioned on 19 March 2019 by ESC investigator Newton about the intercept and more specifically Ms Newman’s statement to Colfs during which Ms Newman is heard saying ‘yes, I have some diaries’. Ms Newman’s explanation about her statement to Colfs, given during the ESC interview, is that she was talking (to Colfs) about what was on her desk.[60] Ms Newman maintained her evidence that when she packed up Colfs’ belongings there were ‘blue books’ that she put into a box.[61] Ms Newman stated that she did not look at them (meaning the blue books) and she does not known what was in them.[62] When questioned by Newton about whether the ‘big blue books’ is what Herpich was ‘calling them’ meaning the diaries requested by Herpich, Ms Newman stated that the ‘blue books’ (she packed) looked the ‘same size as that’ and confirmed that the books were blue but maintained that she did not look at the front of the books.[63] Ms Newman stated that she could not remember having a discussion with Colfs about her diaries.[64]

Findings - particulars six, seven and eight of the one allegation of misconduct

  1. [42]
    I am satisfied that each of the particulars six, seven and eight, respectively, of the one allegation of misconduct is proven. I find that, when questioned by Herpich during an ESC interview on 19 February 2018, Ms Newman confirmed that she has never taken diaries out of Colfs’ office and that she has never had any diaries (belonging to Colfs) in her possession. I find that Ms Newman had a telephone conversation with Colfs on 5 December 2017, during which Ms Newman told Colfs that she (Ms Newman) had some diaries. Further, Ms Newman told Colfs that she took the diaries because she was asked by Bruce (McNab) if ‘maybe we should go through and get them’.
  2. [43]
    I find that during an ESC interview on 19 March 2018, Ms Newman was questioned about whether she has ever had a conversation with Colfs in relation to diaries since Colfs was stood down (on 13 October 2017). Ms Newman responded, ‘not that I can remember’.
  3. [44]
    The evidence shows and I have found that Ms Newman had a conversation with Colfs about her diaries on 5 December 2017, during which Ms Newman told Colfs that she has ‘some diaries’. Ms Newman failed to disclose to ESC investigators during the interviews on 19 February 2018 and again on 19 March 2018 that she previously had a conversation with Colfs about her diaries (on 5 December 2017). More importantly, Ms Newman failed to disclose to McNab and ESC investigators that she had (or previously had) Colfs’ diaries, when she was asked questions about the location of Colfs’ diaries including whether she had seen Colfs’ diaries.
  4. [45]
    I have carefully considered the evidence and more importantly the explanations provided by Ms Newman during the directed interviews with ESC on 19 February 2018 and 19 March 2018, respectively. I have also considered the written submissions provided by Ms Newman in the disciplinary proceedings below and the submissions filed by Ms Newman for the purposes of the review proceeding. I have also listened to the recording of the intercept between Ms Newman and Colfs.
  5. [46]
    It is non-contentious that Ms Newman packed up Colfs’ office on 23 October 2017 and the contents packed by Ms Newman may have included police diaries.[65] Ms Newman contends, however, that she was not sure then, or when interviewed, about whether the ‘pack up’ included police diaries.[66]
  6. [47]
    As discussed above, Ms Newman told Herpich during the interview on 19 February 2018, that there were ‘probably’ a couple of big blue books ‘like that’ (meaning work diaries)[67] but she did not look at them.[68] I have found that McNab asked Ms Newman about Colfs’ diaries on 16 October 2017, being a date prior to when Ms Newman packed up Colfs’ belongings. During McNab’s conversation with Ms Newman on 16 October 2017, he explained the importance of Colfs’ diaries and that he was ‘really keen’ to get them meaning the diaries.[69] It is open for me to draw the reasonable inference from the answers given by Ms Newman during the ESC interviews, that some of Colfs’ belongings packed up by her on 23 October 2017 may have contained ‘big blue books’ or diaries belonging to Colfs.
  7. [48]
    The question of whether others may have entered Colfs’ office to remove items of interest after McNab and Gerry searched Colfs’ office on 13 October 2017 and again on 16 October 2017, matters not because the evidence shows that Ms Newman was aware that McNab was looking for Colfs’ diaries, McNab having spoken to her about Colfs’ ‘diaries’ on 16 October 2017 (after McNab and Gerry searched Colfs’ office).[70]  More importantly, McNab had only done a ‘cursory search’ of Colfs’ office.
  8. [49]
    It is open for me to draw the reasonable inference that Colfs’ diaries remained in Colfs’ office after McNab’s ‘cursory’ search on 16 October 2017. On or about 23 October 2017, Ms Newman packed up Colfs’ belongings knowing that McNab was looking for Colfs’ diaries because he (McNab) had told her about the importance of the diaries and he was keen to get them. McNab had a telephone conversation with Colfs on 5 December 2017 and told her (Colfs) that she has ‘some diaries. Ms Newman also sent a text message to Colfs on 12 December 2017 stating, amongst other things that she has Colfs’ ‘notebook’.[71]
  9. [50]
    On 7 February 2018, Herpich emailed Ms Newman about Colfs’ diaries. McNab also spoke to Ms Newman on 7 February 2018 and again on 9 February 2018 about Colfs’ diaries. Ms Newman did not tell McNab that she may have packed some ‘big blue books’ belonging to Colfs into boxes. Further, Ms Newman did not tell McNab, when asked by him (on 7 February 2018), that she had (or previously had) ‘diaries’ belonging to Colfs, Ms Newman having told Colfs during a telephone conversation on 5 December 2017 that she (Ms Newman) had ‘some diaries’ meaning Colfs’ diaries. Ms Newman emailed Herpich on 8 February 2018 stating that, amongst other things, ‘there are no diaries in the office to provide’.
  10. [51]
    On 9 February 2018, McNab had a further conversation with Ms Newman about Colfs’ diaries, McNab asked Ms Newman if she has ever had any of Colfs’ diaries. Ms Newman said ‘No’.
  11. [52]
    Ms Newman’s responses to McNab on 7 February 2018 and again on 9 February 2018, about Colfs’ diaries were false and misleading because Ms Newman, knowing that Colfs’ diaries were important and McNab wanted them, had packed up books belonging to Colfs that may have contained ‘big blue books’ or official diaries. Further, Ms Newman did not disclose to McNab that she had (or previously had) Colfs’ ‘diaries’, Ms Newman having told Colfs during a telephone conversation on 5 December 2017, that she (Ms Newman) had ‘some diaries’ meaning Colfs’ diaries.
  12. [53]
    Further, Herpich notified Ms Newman by email on 7 February 2018 that Colfs’ work diaries were required. Ms Newman confirmed in her email in response (to Herpich) on 8 February 2019 that ‘there are no diaries’ in the office to provide. The evidence shows, however, that there may have been diaries belonging to Colfs that Ms Newman packed up and put into boxes on 23 October 2017.
  13. [54]
    During the ESC interviews on 19 February 2018 and 19 March 2018, respectively, Ms Newman denied that she had ‘any diaries’ belonging to Colfs in her possession. Ms Newman’s answers given to ESC investigators were false and misleading because Ms Newman had told Colfs during a telephone conversation on 5 December 2017, that she had her (meaning Colfs’) diaries that she took having been asked ‘if maybe we should go through and get them’ by McNab.
  14. [55]
    Ms Newman failed to disclose to ESC investigators during the interviews on 19 February 2018 and 19 March 2018, respectively, that she had spoken to Colfs about her diaries. Further, Ms Newman failed to disclose to ESC investigators what she knew about Colfs’ diaries, Ms Newman having told Colfs on 5 December 2017 that she had some diaries meaning Colfs’ diaries that she (Ms Newman) took because she was asked if ‘maybe we should go through and get them’ by McNab.
  15. [56]
    I find that matter one is proven to the required standard. I find that between 15 October 2017 and 20 March 2018, Ms Newman’s conduct was improper in that she provided false and misleading information to Superintendent McNab and investigators attached to the ESC. I find that Ms Newman’s conduct in providing false and misleading information is misconduct in that her conduct does not meet the standard of conduct the community reasonably expects of a police officer. The correct and preferable decision is that the decision of Deputy Commissioner Tracy Linford APM of 24 June 2019 that one ground of misconduct concerning Helen Maree Newman is substantiated, is confirmed. I order accordingly.
  16. [57]
    The respective parties should be given an opportunity to make further submissions in respect of sanction. Unless any party requests a further oral hearing, the appropriateness of any sanction to be imposed following my findings relevant to the one allegation of misconduct, will be further determined on the papers based on the written submissions filed and without an oral hearing. I make directions to that effect.

Footnotes

[1]Notice of Formal Finding dated 24 June 2019.

[2]See applications to review filed on 17 July 2019 in OCR246-19 and OCR247-19, respectively and the Tribunal’s directions by consent dated 6 February 2020 consolidating proceedings OCR247-19 and OCR246-19 (to proceed as OCR246-19).

[3]Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’), s 19 and see the Crime and Corruption Act 2001 (Qld) (‘CC Act’), s 452. The matter proceeds under the previous statutory framework as in force before the commencement of the current CC Act (on 30 October 2019).

[4]Material filed by the respondent in accordance with s 21(2) of the QCAT Act (‘section 21 material’). See CC Act, s 219H.

[5]Aldrich v Ross [2001] 2 Qd R 235, 257-258 (Thomas J).

[6]Murray v Deputy Commissioner Stewart [2011] QCAT 583, [40].

[7]Ibid, [40] (Hon JB Thomas).

[8]Murray, [40].

[9]Briginshaw v Briginshaw (1938) 60 CLR 336.

[10]Police Service Administration Act 1990 (Qld), s 1.4.

[11]See joint submissions of the parties filed on 17 April 2020 and the Tribunal’s directions dated 6 February 2020.

[12]Section 21 material, Part B, p 77.

[13]Ibid, p 358, L925-935.

[14]Ibid, p 473.

[15]Ibid, p 293.

[16]Section 21 material, p 612.

[17]Ibid, p 624.

[18]See also outline of submissions on behalf of Deputy Commissioner Linford filed 11 October 2019.

[19]Further material to be relied upon and subject member’s written submissions dated 17 September 2019.

[20]Applicant’s further submissions in response filed 24 October 2019.

[21]Ibid.

[22]Ibid.

[23]Ibid.

[24]Section 21 material, p 281.

[25]Ibid.

[26]Section 21 material, p 292-293.

[27]See joint submissions of the parties filed on 17 April 2020.

[28]Ibid.

[29]Section 21 material, Part B, p 71.

[30]See joint submissions of the parties filed on 17 April 2020.

[31]Section 21 material, p 473, L262-272.

[32]Section 21 material, Part B, p 71.

[33]Ibid, p 359, L945-950.

[34]Ibid, p 363, L1090-1095.

[35]Ibid, p 363, L1080-1103.

[36]Section 21 material, p 473, L262-272.

[37]Ibid, p 292-292.

[38]See joint submissions of the parties filed on 17 April 2020.

[39]Section 21 material, p 363.

[40]Ibid, p 473.

[41]Ibid, Part B, p 71.

[42]Ibid, p 360, L995.

[43]Section 21 material, reasons document, p 359-360.

[44]Section 21 material, p 361-364

[45]Ibid, p 374.

[46]Ibid, p 359, L965.

[47]Ibid, p 360, L995.

[48]Ibid, p 361.

[49]Ibid, p 361.

[50]Ibid, p 362.

[51]Ibid, p 364.

[52]Ibid, p 360 to p 364, L110-120.

[53]Ibid, p 359.

[54]Section 21 material, p 360.

[55]Ibid, p 360-361.

[56]Ibid, p 364, L110-120.

[57]Section 21 material, p 124-125.

[58]Ibid, p 476.

[59]Ibid, p 476.

[60]Ibid, p 487.

[61]Ibid, p 488.

[62]Ibid, p 488.

[63]Section 21 material, p 488.

[64]Ibid.

[65]Applicant’s further submissions filed 24 October 2019, [13].

[66]Ibid.

[67]Section 21 material, p 361.

[68]Ibid, p 361.

[69]Section 21 material, p 281.

[70]Applicant’s further submissions filed 24 October 2019, [26].

[71]See joint submissions of the parties filed on 17 April 2020.

Close

Editorial Notes

  • Published Case Name:

    Helen Maree Newman v Deputy Commissioner Tracey Linford APM & Crime and Corruption Commission

  • Shortened Case Name:

    Helen Maree Newman v Deputy Commissioner Tracey Linford APM & Crime and Corruption Commission

  • MNC:

    [2020] QCAT 179

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    20 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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