Lee v Crime and Corruption Commission
[2016] QCA 145
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- Lee v Crime and Corruption Commission[2016] QCA 145
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Lee v Crime and Corruption Commission[2016] QCA 145
Lee v Crime and Corruption Commission[2016] QCA 145
SUPREME COURT OF QUEENSLAND
CITATION: | Lee v Crime and Corruption Commission & Anor [2016] QCA 145 |
PARTIES: | ANTHONY LEE |
FILE NO/S: | Appeal No 9866 of 2015 SC No 2174 of 2015 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2015] QSC 226 |
DELIVERED ON: | 7 June 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 April 2016 |
JUDGES: | Philip McMurdo JA and Douglas and Bond JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | |
CATCHWORDS: | POLICE – EXTERNAL OVERSIGHT – where, in 2008, a complaint of misconduct against a police officer was referred to the appellant police officer for investigation – where the appellant’s final report recommended that the officer be exonerated – where the officer in question in fact committed the conduct complained of and was charged and sentenced on numerous offences – where, in the course of its investigation, the police Ethical Standards Command (“ESC”) discovered that the appellant had failed to interview subject officers and view CCTV footage of the officer’s conduct before submitting his final report – where the ESC supplied this information to the Crime and Corruption Commission (“CCC”) – where the CCC subsequently recommended to the ESC that the appellant should face a disciplinary hearing – where the Deputy Commissioner of Police did not act on the CCC’s recommendation and negotiated an outcome with the appellant whereby he would undertake an Administrative Consensual Disciplinary Process and be demoted in rank, wholly suspended for 12 months – where the CCC applied for review of that decision by QCAT – where the QCAT Appeal Tribunal returned the matter to the decision-maker to reconsider, suggesting further evidence be considered – where, on 16 December 2014, the Assistant Commissioner of Police decided that he would finalise the matter by way of “managerial action” – where, on 18 December 2014, the CCC advised the Assistant Commissioner it did not agree with the proposed method of “managerial action” and was assuming responsibility for the investigation pursuant to s 48(1)(d) of the Crime and Corruption Act 2001 (Qld) – where the appellant sought a declaration in the Trial Division that because the matter had been dealt with by the Assistant Commissioner the CCC had no power to assume responsibility of the investigation – where the learned trial judge dismissed the application and held that the decision of 16 December 2014 did not finalise all allegations against the appellant and, in any event, such a limitation on the CCC’s powers would undermine its monitoring role – where the appellant contends the learned trial judge erred – whether, on the correct construction of the Crime and Corruption Act 2001 (Qld), the CCC’s investigative powers were exhausted upon the Assistant Commissioner’s decision Crime and Corruption Act 2001 (Qld), s 33, s 34, s 37, s 38, s 41(1), s 42, s 45(1), s 46(2)(b), s 47(1)(c), s 48(1)(d), s 49(1), s 219G, s 219H Police Service Administration Act 1990 (Qld), s 7.4 Arndt v Crime and Misconduct Commission [2013] QCATA 340, cited Kitching & Anor v Queensland Commissioner of Police & Ors [2010] QSC 303, cited Lee v Crime and Corruption Commission & Anor [2014] QCATA 326, related Lee v Crime and Corruption Commission & Anor [2015] QSC 226, approved Minister for Immigration and Multicultural Affairs v Bhadwaj (2002) 209 CLR 597; [2002] HCA 11, cited |
COUNSEL: | P J Davis QC, with A D Scott, for the appellant R N Traves QC, with E Mac Giolla Ri, for the first respondent S A McLeod for the second respondent |
SOLICITORS: | Queensland Police Union Legal Group for the appellant Crime and Corruption Commission Official Solicitor for the first respondent Public Safety Business Agency for the second respondent |
- PHILIP McMURDO JA: The appellant is a serving police officer who has been the subject of investigation for misconduct in the performance of his duty in 2008.
- Under what was called the Crime and Misconduct Act 2001 (Qld), and is now called the Crime and Corruption Act 2001 (Qld) (“the CCC Act”), the misconduct of police officers was and is the concern of both the Commissioner of Police and what is now called the Crime and Corruption Commission (“the CCC”).[1] The Commissioner of Police had and retains the primary responsibility to deal with conduct which is “police misconduct” as defined in that Act. The CCC has the primary responsibility for dealing with “corrupt conduct” as the CCC Act defines that term. Prior to amendments to the Act in 2014, it had the primary responsibility for dealing with “official misconduct” as that term was defined.
- In 2013, a Deputy Commissioner of Police (as the Commissioner’s delegate) decided that the appellant should be disciplined for his misconduct in 2008, by being demoted in rank. But he decided also that the demotion should be suspended for 12 months on the condition that the appellant committed no further misconduct during that period.
- The CCC was dissatisfied with that decision and exercised its right under s 219G of the Act to apply to the Queensland Civil and Administrative Tribunal (QCAT) for a review of that decision. On 19 November 2014, the Appeal Tribunal of QCAT, constituted by the Honourable James Thomas AM QC, set aside the decision (and a related decision) of the Deputy Commissioner and ordered that “the disciplinary proceeding against [the appellant] [be] returned for reconsideration and further processing.”[2]
- A few weeks later, an Assistant Commissioner of Police decided that there should be no disciplinary action against the appellant, but that instead there should be “managerial action”. That action, he decided, should be the appellant’s participation in a programme conducted within the Police Service on the subject of “professionalism and ethical decision making”. He decided also that he would “personally chastise” the appellant. He was influenced to make this decision by the appellant’s agreement to undertake 60 hours of unpaid community service.
- The CCC was dissatisfied with that outcome. It believed that the conduct of the appellant had not been properly investigated by the Police Service. Under s 47 and s 48 of the CCC Act, the CCC has a monitoring role where alleged or suspected corruption is being dealt with by the Commissioner of Police. Under each of those provisions, the CCC has a power to “assume responsibility for and complete an investigation” of an officer’s conduct. Within two days of the communication by the Assistant Commissioner of his decision, the CCC exercised, or purported to exercise, that power. The question in this case is whether the CCC was able to do so.
- The appellant commenced this proceeding in the Trial Division, seeking a declaration that the CCC had no power to further investigate his conduct. His case was and remains that the CCC’s powers in relation to the appellant’s misconduct ceased to be exercisable once the Assistant Commissioner notified the appellant and the CCC of his decision in December 2014. After that point, the appellant claimed, neither the CCC nor the Commissioner of Police (or his delegate) had any remaining power to deal with the matter of his misconduct. That argument was rejected by the primary judge (Daubney J) and the originating application was dismissed.[3] By this appeal, the appellant seeks a declaration as he sought from the primary judge, upon much the same argument.
- Before going to the reasoning of the primary judge, it is necessary to set out the events from which this dispute arose and to discuss the relevant statutory provisions.
The appellant as an investigator
- On 18 January 2008, a police officer named Senior Constable Price assaulted a young woman, Ms Toms, in the course of arresting her at the Whitsunday watchhouse. She made a formal complaint against Price on the same day. A few days later, her complaint was referred to the appellant, for his investigation as to whether any offence or misconduct had been committed by Price.
- Price’s assault of Ms Toms had been reliably recorded by the CCTV facility in the watchhouse. On 8 February 2008, the appellant took possession of the relevant footage.
- On 26 February 2008, the appellant submitted an interim report to his superior officers. He wrote that he had been unable to contact Ms Toms, but he had spoken to Price and he had viewed the CCTV footage. Price denied the assault and remarkably, the appellant reported that the footage supported his denial. He wrote also that the complaint by Ms Toms was interwoven with charges which had been brought against her and that no action should be taken until those charges had been finalised. After Ms Toms pleaded guilty to various offences on 29 April 2008, the appellant submitted his final report, recommending that Price be exonerated.
- Price was the subject of further complaints at this time, which, together with the complaint which had been made by Ms Toms, came to be investigated by the Ethical Standards Command within the Police Service (“the ESC”). In the course of that investigation, it was discovered that the CCTV footage corroborated Ms Toms’s version and disproved Price’s version of the incident. The appellant was interviewed and said that, in truth, he had not viewed the CCTV footage.
- Eventually Price was charged with several offences, including the assault of Ms Toms. In October 2010, Price pleaded guilty in the District Court to those charges and was sentenced to a period of 27 months imprisonment.
An investigation by the CCC
- In May 2012, the ESC sent to the CCC files relating to, amongst other things, the complaint by Ms Toms. The CCC then considered the conduct of a number of police officers who had worked with Price at the time of the offences committed by him. It also considered the conduct of the appellant in his purported investigation of Price.
- On 20 December 2012, the CCC wrote to the ESC, setting out the result of its investigation of these matters including the conduct of the appellant. Its letter was headed “Discipline issues in relation to Whitsunday investigation”. In respect of the appellant, the CCC wrote:
“On 5 June 2008 the matter was taken over by ESC as part of the Whitsunday investigation. Senior Sergeant Lee was interviewed by ESC on 5 August 2008 in relation to his handling of the Ms Toms's complaint and his subsequent investigation.
It's evident that S/Sgt Lee had sufficient information available to him to conduct a disciplinary investigation in a timely manner. He was in possession of the video footage that is prima facie evidence of an unlawful assault. In addition to this, Detective Sergeant Nicholas Williams of the Airlie Beach CIB had obtained a witness statement from Ms Toms. Senior Sergeant Lee's inertia in this matter was such that he failed to view the footage, and failed to interview the subject officers. In point of fact he did nothing with the complaint for five (5) months, and this was only addressed when the matter was taken over by the ESC.
During his interview with ESC investigators, S/Sgt Lee claimed that he was unable to contact the complainant to obtain a complaint or statement even though D/Sgt Williams had already done this. S/Sgt Lee states further that he had conversations with Price but did not formally interview him or make a record of their conversations. Absurdly, S/Sgt Lee informed the ESC investigators that he had not even taken the time to view the CCTV footage.
Then without having conducted the most basic of investigations, S/Sgt Lee submitted a request to the PPM of the Region that all the subject officers should be exonerated.
Aside from the total lack of professionalism as a senior officer in the QPS S/Sgt Lee has failed in his duty and has not met the expectations placed in him by his senior managers. Put simply, his abilities to be, and operate as, an Officer in Charge are seriously in question.”
In the same letter the CCC made this recommendation:
“In relation to Senior Sergeant Lee, his conduct is such that it warrants specific consideration. He is both senior in service and rank and therefore this does not mitigate his conduct. Aside from the outstanding issue relating to the viewing of the CCTV footage S/Sgt Lee's conduct is such that it should face a disciplinary hearing with the prescribed officer being of no less a rank than Assistant Commissioner.”
The 2013 decision
- The Police Service did not follow the CCC’s recommendation. The appellant was not required to face a disciplinary hearing. Instead an outcome was negotiated between the ESC and the appellant whereby he admitted to certain acts and omissions and agreed to a certain sanction.
- On 3 June 2013, Deputy Commissioner Barnett sent to the appellant a document entitled “Invitation to undertake Administrative Consensual Disciplinary Process”. The document described the nature of this so called ACDP in these terms:
“The Administrative Consensual Disciplinary Process (ACDP) has been developed to enable you to accept responsibility for your alleged conduct and to have the matter dealt with quickly with proposed sanction(s). The process, ordinarily conducted on a paper review, provides for speedier resolution of the complaint matter and is an alternative to the discipline hearing process.”
- The document explained that the matter could be finalised by the ACDP if the appellant accepted responsibility “for the alleged conduct”. It set out what were said to be the relevant facts of the appellant’s conduct. It referred to his misrepresentation that he had viewed the CCTV footage and of the effect of that evidence. It referred also to the appellant’s failure to interview two police officers who were present at the time of Price’s assault on Ms Toms and the appellant’s failure to speak to another police officer who had interviewed Ms Toms and obtained a statement from her.
- There was no formal charge of misconduct against the appellant. The ACDP document contained this proposed “summary of fault conduct”:
“Between 22 January and 30 April 2008 at Mackay you failed to adequately conduct preliminary inquiries into a disciplinary complaint in that you:
•failed to view Whitsunday Watchhouse CCTV footage of the incident;
•failed to obtain versions of witnesses involved in the complaint;
•submitted false information … that you had in fact viewed the CCTV footage;
•unreasonably submitted a recommendation exonerating officers involved in the incident.”
Under a heading “Classification”, the conduct was described as “Misconduct.”
- The document proposed the following outcome:
“Sanction(s)
I order that the subject officer be demoted in rank from Senior Sergeant pay point 4.4 to Sergeant pay point 3.5. Further that the sanction be suspended for 12 months on the condition that the subject officer does not commit any further misconduct during the 12 month period.”
- On 14 June 2013 the appellant countersigned the document, agreeing in these terms to the proposal:
“I accept responsibility for the alleged conduct, consent to participation in the Administrative Consensual Disciplinary Process (ACDP) and accept the proposed classification of conduct and sanction(s)”.
The proceeding in QCAT
- The decision of Deputy Commissioner Barnett was a decision reviewable by QCAT under s 219G of the Act and the Commission applied for its review. By s 219H, the review was to be by way of rehearing on the evidence before the original decision‑maker, but with a power in QCAT to admit further evidence. A QCAT member granted leave for the Commission to adduce certain evidence that had not been before the Deputy Commissioner and ordered that the matter then be returned to the Deputy Commissioner for reconsideration. The present appellant applied to the QCAT Appeal Tribunal for leave to appeal against those orders.
- The proposed further evidence was described by Mr Thomas QC, in his reasons, as follows:[4]
“(a)The original statement and transcript of interview of the complainant Toms;
(b)Compass (police computer system) summary reports showing the instructions and information received by [the appellant] from time to time in relation to his investigation of Price, and his responses; and
(c)The transcript of the subsequent interview of Sergeant Lee by the ESC investigator.”
- The appellant there argued that the further evidence should not be considered, because it was apparently intended to support a finding that the appellant had acted dishonestly where no such finding had been made by the Deputy Commissioner. For this and other reasons, it was necessary for the Appeal Tribunal to consider the nature of the conduct for which the appellant had been sanctioned.
- Mr Thomas QC accepted a submission for the appellant that although there had been no formal charge, the appellant had been disciplined upon an allegation of misconduct which alleged no more than an inadequacy in his investigation, without any element of dishonesty or bias.[5] He commented that “On the available evidence it [was] surprising that so low level a charge is all that was brought” and that “This is one of the matters about which the CMC in its monitoring role is entitled to be concerned.”[6] Mr Thomas QC said that more serious allegations would be reasonably open for consideration, including that the appellant had knowingly misrepresented what he had done (or not done) in his investigation and, in particular, that he had lied about having examined the tape.[7]
- Mr Thomas QC had further concerns as to the disciplinary process and its outcome in this case. He doubted that Deputy Commissioner Barnett had a power to fully suspend the sanction.[8] And he was critical of the Deputy Commissioner’s use of the term “misconduct”, without the relevant limb of the statutory definition of that term being identified.[9]
- As to that last point, the Deputy Commissioner had exercised a disciplinary power which derived from s 7.4(2) of the Police Service Administration Act 1990 (Qld), which provides as follows:
“(2)An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.”
Mr Thomas QC referred to regulation 9 of the Police Service (Discipline) Regulation 1990 (Qld), by which “misconduct” is prescribed as a ground for disciplinary action. He observed that the term “misconduct” would naturally bear the same meaning as it has in the Police Service Administration Act, which, by s 1.4 of that Act, is:
“… conduct that -
(a)is disgraceful, improper or unbecoming an officer; or
(b)shows an unfitness to be or continue as an officer; or
(c)does not meet the standard of conduct the community reasonably expects of a police officer.”
When regard is had to the range of conduct which might be “misconduct”, the concern of Mr Thomas QC that the Deputy Commissioner had failed to identify the way or ways in which the appellant’s conduct had been “misconduct” is understandable.[10]
- After discussing the proposed further evidence, saying that it gave a “fuller, more satisfactory picture of Sergeant Lee’s investigation than the material supplied to the decision‑maker,”[11] Mr Thomas QC concluded as follows:[12]
“[129]I initially favoured the idea that QCAT, the ultimate independent arbiter in these cases, should proceed to determine the issues. However upon further examination of the whole process I am concerned that the present QCAT review would have to continue on the basis of the current ‘charge’ which, when interpreted as all counsel now agree it should be interpreted, may well be an inadequate reflection of the seriousness of the conduct the evidence is capable of showing.
[130]I am concerned at the risk of public ‘perception of a biased process or outcome, or of ‘Caesar v Caesar’ (which) … can operate to erode public confidence in the QPS’ which the decision‑maker was clearly at pains to avoid.
[131]Other aspects of the process mentioned above at [86] - [107] add to concern that the present determinations are unsatisfactory and that they require reconsideration.
[132]An outcome based on the present charge might well wear the appearance of a failure of the police disciplinary system. QCAT should not perpetuate such a situation if it has a discretion to make an order that will permit apparent defects to be remedied.
[133]I therefore favour a return of the matter to the decision‑maker in such a way that will permit him, if so inclined, to reconsider the further progressing of the matter. ‘The matter’ is of course the disciplinary proceeding against Sergeant Lee. If the original determinations are set aside, the proceedings will have reached the stage described in paragraph 2.5 of the Commissioner’s circular of 30 November 2012.
[134]At that stage of proceedings, the decision‑maker may if he sees fit:
- Make a request to be provided with the material here described as the additional evidence (ACDP para 2.5(2)).
- Return the matter to the appropriate PPM for further enquiries or investigation (ACDP para 2.5(iii)).
- Obtain advice from the ESC Legal and Policy Unit or the PPM (under ACDP para 2.7).
- Invite the Policy Unit and/or the PPM to reconsider its formulation of the false conduct in Form A.
It is also possible that the ESC Assistant Commissioner could reverse the original decision to proceed by way of ACDP.”
As already mentioned, the orders made by the Appeal Tribunal relevantly included an order that the decision of Deputy Commissioner Barnett be set aside and that the matter be returned for reconsideration and further decision.
The December 2014 decision
- The decision of the Appeal Tribunal was given on 19 November 2014. On 16 December 2014, Assistant Commissioner O'Regan of the ESC wrote to the CCC and the lawyer acting for the appellant, advising that he was “of the view that the most appropriate course of action [was] to finalise the matter by way of managerial action rather than disciplinary action”. He said that in each of his letters, but his more extensive letter was that to the CCC to which I will now refer.
- The Assistant Commissioner wrote that following the order to set aside Deputy Commissioner Barnett’s decision, he was required to make a determination “on the most appropriate course of action to take concerning Senior Sergeant Lee’s conduct”. It may be noted that this reference to the appellant’s conduct, and more generally these letters from the Assistant Commissioner, suffered from the same problem which Mr Thomas QC had described in Deputy Commissioner Barnett’s document, by not describing the nature and thereby the relative seriousness of that conduct. That indicated that the Assistant Commissioner had not considered whether the appellant had been merely inadvertent, reckless or deliberately deceitful. He made no reference to the further evidence which had been debated in and considered by QCAT.
- The Assistant Commissioner referred to the purpose or purposes of discipline within the Police Service and to other relevant factors including the fact that almost seven years had passed since the relevant events. He also referred to the appellant’s willingness to undertake 60 hours of unpaid community service “in recognition of his failure”. The Assistant Commissioner concluded as follows:
“I acknowledge the conduct of Senior Sergeant Lee is serious. However, I am of the opinion it is not conduct that would have resulted in a sanction of dismissal from the QPS when considering all the circumstances and previous QCAT comments with respect to dismissal. Had such a sanction been reasonably open, I would have no hesitation in referring the conduct to another prescribed officer for disciplinary hearing.
After careful consideration of the conduct and above relevant factors, I am of the view that the most appropriate course of action is to finalise the matter by way of managerial action rather than disciplinary action.
The managerial action will also require Senior Sergeant Lee to attend the Integrity and Performance Group, Ethical Standards Command to complete a face to face program on professionalism and ethical decision making. It is my intention to personally chastise Senior Sergeant Lee in accordance with section 11 of the Police Service (Discipline) Regulations 1990.
I am of the view the public interest would be best served focussing on correcting the improper decision making adopted by Senior Sergeant Lee and consider this additional training and managerial action to be an appropriate strategy on this occasion.”
- On 18 December 2014, the CCC replied, advising the Assistant Commissioner that it did not agree that dealing with the appellant by way of “managerial guidance” was an appropriate course. On the following day, the CCC wrote to the Assistant Commissioner (with a copy to the appellant’s lawyer), again saying that it did not agree that dealing with the appellant by way of managerial action was an appropriate course and continuing:
“Pursuant to section 48(1)(d) of the Crime and Corruption Act 2001 the Commission is assuming responsibility for the investigation of the allegations against Senior Sergeant Anthony Lee.
Pursuant to section 48(3) we advise that you not take any further action in relation to the matter, including your proposed course of action to finalise the matter by way of managerial action against Senior Sergeant Lee.”
- In a letter dated 13 January 2015 to the Commissioner of Police, the acting chairman of the CCC wrote that “the available material strongly suggests that Detective Senior Sergeant Lee’s conduct was intentionally misleading and dishonest” and that it was “conduct more serious than an ‘inadequate investigation’”. He wrote that the evidence raised the prospect of criminal conduct by the appellant by possible breaches of s 92A (misconduct in relation to public office) and s 140 (attempting to pervert the course of justice) of the Criminal Code.
The legislation
- The CCC Act, which was then called the Crime and Misconduct Act 2001 (Qld), was substantially amended in 2014.[13] The parties agreed that the determination of this appeal is to be according to the Act as amended in 2014, those amendments having taken effect before December 2014 when the CCC assumed or purported to assume responsibility for the investigation of the appellant.[14] I will refer to the CCC Act in its present terms except where some reference to the pre 2014 Act is necessary.
- As noted at the outset, the Commissioner of Police has primary responsibility for dealing with complaints about, or information or matter the Commissioner reasonably suspects involves “police misconduct”.[15] The CCC has a monitoring role for police misconduct, according to s 47 which provides as follows:
“47Commission’s monitoring role for police misconduct
(1)The commission may, having regard to the principles stated in section 34 –
(a)issue advisory guidelines for the conduct of investigations by the commissioner of police into police misconduct; or
(b)review or audit the way the commissioner of police has dealt with police misconduct, in relation to either a particular complaint or a class of complaint; or
(c)assume responsibility for and complete an investigation by the commissioner of police into police misconduct.
(2)The commissioner of police must give the commission reasonable help to undertake a review or audit or to assume responsibility for an investigation.
(3)If the commission assumes responsibility for an investigation, the commissioner of police must stop his or her investigation or any other action that may impede the investigation if directed to do so by the commission.
(4)In this section –
complaint, about police misconduct, includes information or matter involving police misconduct.”
- The CCC has primary responsibility for dealing with complaints about or information or matter involving “corrupt conduct”, including corrupt conduct by police officers.[16] One of the actions which may be taken by the CCC, in dealing with a complaint about corrupt conduct, is to refer that complaint to a public official to be dealt with by that official or in cooperation with the CCC, subject to the Commission’s monitoring role.[17] The term “public official” is defined to include the Commissioner of Police. The monitoring role of the CCC for corrupt conduct is described in s 48 as follows:
“48Commission’s monitoring role for corrupt conduct
(1)The commission may, having regard to the principles stated in section 34—
(a)issue advisory guidelines for the conduct of investigations by public officials into corrupt conduct; or
(b)review or audit the way a public official has dealt with corrupt conduct, in relation to either a particular complaint or a class of complaint; or
(c)require a public official—
(i)to report to the commission about an investigation into corrupt conduct in the way and at the times the commission directs; or
(ii)to undertake the further investigation into the corrupt conduct that the commission directs; or
(d)assume responsibility for and complete an investigation by a public official into corrupt conduct.
(2)The public official must—
(a)give the commission reasonable help to undertake a review or audit or to assume responsibility for an investigation; and
(b)comply with a requirement made under subsection (1)(c).
(3)If the commission assumes responsibility for an investigation, the public official must stop his or her investigation or any other action that may impede the investigation if directed to do so by the commission.
(4)In this section—
complaint, about corrupt conduct, includes information or matter involving corrupt conduct.”
- The term “corruption” means corrupt conduct or police misconduct.[18]
- By s 33, the CCC has the function, described as the corruption function, of ensuring that a complaint about, or information or matter involving, “corruption” is dealt with in an appropriate way, having regard to certain principles which are set out in s 34. Those principles are expressed in s 34 as follows:
“(a)Cooperation
- the commission and units of public administration should work cooperatively to deal with corruption
(b)Devolution
- subject to the cooperation and public interest principles and the capacity of the unit of public administration, action to deal with corruption in a unit of public administration should generally happen within the unit
(c)Public interest
- the commission has an overriding responsibility to promote public confidence in the way corruption within a unit of public administration is dealt with
- the commission should exercise its power to deal with particular cases of corruption when it is appropriate having primary regard to the following –
- the capacity of, and the resources available to, a unit of public administration to effectively deal with the corruption
- the nature and seriousness of the corruption, particularly if there is reason to believe that corruption is prevalent or systemic within a unit of public administration
- any likely increase in public confidence in having the corruption dealt with by the commission directly.”
- Section 37 requires the Commissioner of Police, if holding a reasonable suspicion that a complaint, or information or matter involves police misconduct, to notify the CCC of the matter. Section 38 requires any public official (thereby including the Commissioner of Police) suspecting that a complaint, information or matter involves, or might involve, corrupt conduct, to notify the CCC of that matter. Section 37 was not amended in 2014. The relevant amendment to s 38 in 2014 was to substitute the term “corrupt conduct” for “official misconduct”. It was under s 37 or s 38 (or perhaps both provisions) that the ESC sent the material about the events at Whitsunday, including material relating to the appellant’s conduct, to the Commission in May 2012.
- Section 49 is headed “Reports about complaints dealt with by the commission”. In December 2012, s 49 relevantly provided as follows:
“49Reports about complaints dealt with by the commission
(1)This section applies if the commission investigates (either by itself or in cooperation with a public official), or assumes responsibility for the investigation of, a complaint about, or information or matter involving, misconduct and decides that prosecution proceedings or disciplinary action should be considered.
(2)The commission may report on the investigation to any of the following as appropriate –
(a)the director of public prosecutions, or other appropriate prosecuting authority, for the purposes of any prosecution proceedings the director or other authority considers warranted;
(b)…
(c)…
(d)…
(e)…
(f)the chief executive officer of a relevant unit of public administration, for the purpose of taking disciplinary action…”.
It was apparently pursuant to s 49 that the Commission wrote to the ESC in December 2012, recommending that there be a disciplinary hearing in the appellant’s case.[19] The Commission had investigated the appellant’s conduct and decided that disciplinary action should be considered.[20]
- I have referred already to the disciplinary powers under s 7.4 of the Police Service Administration Act 1990 (Qld).[21] It can be seen that the Commission’s recommendation for a disciplinary hearing to be conducted by a “prescribed officer” was by reference to the power in s 7.4(2). The term “prescribed officer” was and is defined for s 7.4 to mean an officer authorised by a regulation to take disciplinary action in the circumstances of any case in question. It is unnecessary to discuss here the detail of that disciplinary regime within the Police Service. The range of disciplines which may be imposed, according to s 7.4, includes the dismissal or demotion in rank of a police officer. It does not include any part of the outcome proposed by Assistant Commissioner O'Regan. As he wrote, he had decided to proceed by managerial action, rather than by disciplinary action.
The proceeding in the trial division
- The appellant applied for a declaration that the CCC has no power, under s 48(1)(d) of the CCC Act or otherwise, to assume responsibility for an investigation of his conduct. By referring to s 48, rather than s 47, he was apparently accepting that his conduct fell within the more serious category of corrupt conduct, rather than police misconduct. Similarly, in this court counsel for the appellant said that it was s 48 which should be considered. There is no material difference, for this case at least, between the respective terms of s 47 and s 48. In the terms of each section, what is in issue is the CCC’s power to “assume responsibility for and complete an investigation …”.[22]
- The contestants, as they were in this court, were the appellant and the CCC, the Commissioner of Police agreeing to abide by the order of the court.
- The appellant’s case was that the CCC had no power to further “deal with” his conduct, once the “allegations” against him had been “dealt with” for the purposes of the CCC Act, by the decision of the Assistant Commissioner on 16 December 2014.[23] It was conceded that the CCC had power to assume responsibility for and continue an investigation, but only to the point where “a final decision” was made “on the allegations to which the investigation relates.”[24]
- The argument before the primary judge, as it was here, stressed the desirability of finality. The argument cited a statement by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj[25] that the “requirements of good administration, and the need for people … to know where they stand, mean that finality is a powerful consideration.”
- It was argued that a need for finality was consistent with the provisions of the CCC Act which prescribed a time limit for an application to QCAT for review of a decision, such as that made by the Assistant Commissioner. It was submitted that this was a decision which was reviewable, on the application of the CCC, as a “reviewable decision” as that term is defined in s 219BA. If this was a reviewable decision, the CCC could have applied to QCAT for a review of the decision only within 14 days after the day on which the decision was announced.[26]
- It was further submitted that the power in s 48(1)(d) was to “complete” an investigation, so that it was not exercisable in this case because, it was argued, the investigation was already “complete”.
The decision of the primary judge
- The primary judge said that:[27]
“The fundamental tenet on which the applicant’s present case rests is that the decision by Assistant Commissioner O'Regan on 16 December 2014 of itself constituted completion of “an investigation by a public official into corrupt conduct” for the purposes of s 48(1)(d). It was on this prime contention that the applicant founded the argument that the CCC’s power to ‘deal’ with allegations against the applicant under the Act was spent. It was on this basis that the applicant invoked the principles of finality. It was on this premise that the applicant asserted that, because the decision of 16 December 2014 was a ‘final decision’, then necessarily the investigation was ‘complete’ and there was therefore no extant investigation to which the power under s 48(1)(d) could attach.”
His Honour did not accept that premise that the investigation had been “completed”.[28] He referred extensively to the reasons for the decision of the Appeal Tribunal in QCAT and to the subjects for further investigation which were there discussed.[29]
- The primary judge discussed the terms of the so‑called ACDP policy and the ways in which that policy did not appear to have been followed in this case. In particular, his Honour referred to a part of that document, by which the officer who was to decide on the appropriate outcome was required to be “independent of the investigation process”.[30] He noted that Mr O'Regan was “the Assistant Commissioner, ESC.”
- His Honour referred also to Clause 2.5 of that policy document, according to which the case was to be the subject of “managerial action”, and not disciplinary action, only if the relevant officer considered that there were insufficient grounds for disciplinary action. He observed that there was no evidence suggesting that such an assessment had been made in the present case.[31] And his Honour said that it was a “startling outcome”, by which a charge which initially attracted a disciplinary sanction could later be assessed as lacking sufficient grounds for disciplinary action.[32]
- His Honour drew support from what was said by Peter Lyons J in Kitching & Anor v Queensland Commissioner of Police & Ors,[33] when considering the monitoring power conferred by s 48(1)(c)(i) to require a public official to report about an investigation into corrupt conduct. Peter Lyons J there said:[34]
“The CM Act does not, in terms, preclude the exercise of the power conferred by s 48(1)(c)(i) after an investigation has been completed. Of its nature, an investigation is a process which may be recommenced at any time, for example, because new evidence becomes available, or because it is realised that further consideration is required. Moreover, it is not a process, the outcome of which alters status, rights, or legal relationships in some binding fashion. At most, it results in the formulation of conclusions and recommendations which are, of their nature, provisional. Given the primary responsibility and monitoring role conferred on the CMC in relation to official misconduct, there is no reason to limit by implication the effect of this provision.”
- The primary judge emphasised the importance of the principle stated within s 34(c) that “the CCC has an overriding responsibility to promote confidence in the way corruption within a unit of public administration is dealt with”.[35]
- The primary judge expressed these conclusions:
“[74]It is clear, in my view, that the most that can be said about the effect of the decision of 16 December 2014 was that it purported to finalise “the matter”, ie the alternative disciplinary process relating to the effective charge of an inadequate investigation by the applicant.
[75]In the circumstances of this case, I do not consider that the decision of 16 December 2014 could properly be regarded as completing an investigation into corrupt conduct.
…
[83]But in the circumstances of this case, I do not consider that it can properly be said that the making of the decision of 16 December 2014 necessarily or automatically means that there is nothing left to complete in the investigation into corrupt conduct. It follows that the making of that decision did not have the consequence that the CCC’s power to assume responsibility for the investigation into corrupt conduct was spent. To hold otherwise would, in my view, amount to a subversion of the CCC’s primary responsibility for dealing with complaints about corrupt conduct, and the patent importance of its monitoring role. Moreover, to hold that a current decision to deal with what is apparently now regarded as a minor disciplinary matter by “managerial action” would have the effect of precluding the CCC from investigating allegedly corrupt conduct, and would undermine Parliament’s express intention that the CCC have an overriding responsibility to promote public confidence in the way corruption within a unit of public administration is dealt with.”
The appellant’s argument in this court
- As already noted, the appellant’s submissions accepted that the type of conduct which was relevant in his case was “corrupt conduct”. Consistently with that premise, his argument was premised upon the Commissioner’s responsibility to deal with this matter having resulted from a referral by the CCC to the Commissioner under s 46(2)(b). As I have discussed, those concessions may not be correct: the better view is that each of the CCC and the Commissioner of Police treated this as a case of police misconduct. But the point is of little significance because of the identically expressed powers within s 47 and s 48.
- It was submitted that there were essentially two errors of the reasoning of the primary judge. The first was what was said to have been a finding by his Honour that the decision of Assistant Commissioner O'Regan did not purport to finalise all allegations against the appellant. It was submitted that it was clear from the Assistant Commissioner’s correspondence that he was “dealing with all matters”.[36] The second error was said to be that his Honour decided the case by reference to his own opinion that there were matters which ought to have been investigated before any final decision was made. It was said that it was for the Assistant Commissioner to decide how to deal with the appellant’s conduct and to decide whether there were matters for further investigation before a final decision was made.
The respondent’s argument in this court
- The CCC argued in support of the reasoning of the primary judge. It challenged the characterisation of the decision of the Assistant Commissioner as a final decision, pointing to the absence of any reference in the CCC Act to a “final decision” and suggesting that the appellant’s argument that this was a final decision was question begging.
- As to the first error suggested in the appellant’s submissions, the CCC argued that this misstated the finding by the primary judge, which instead was a finding that the decision had purported to finalise “the matter” but had not in fact done so.
- As to the second suggested error, namely determining the case on his Honour’s own opinion that there were matters which ought to have been investigated, the argument for the CCC appeared to dispute that his Honour reasoned in that way.
- As to the importance of finality, it was submitted for the CCC that this was an objective which was to be considered in the context of this legislation, where the relevant power was exercisable both by the Commissioner of Police and the CCC.
- The submissions for the CCC emphasised the importance of its corruption function and the potential for its work to be compromised by a decision within the Police Service to take managerial action where more serious action, perhaps a prosecution of a criminal charge, might be warranted.
- The CCC further submitted that according to a decision of an Appeal Tribunal of QCAT in Arndt v Crime and Misconduct Commission,[37] the decision of the Assistant Commissioner to take only managerial action was not a “reviewable decision” under s 219G. In reply to the submission, counsel for the appellant argued that this decision of the Appeal Tribunal was incorrect.
“Dealing with” a complaint
- The power to investigate corruption under the CCC Act is an element of the power to “deal with” a complaint, information or matter involving corruption. In essence, the appellant’s principal argument is that the matter having been dealt with by the Assistant Commissioner, it could not be dealt with again by the CCC. In particular, the CCC could not deal with it by investigating, or further investigating, the appellant’s conduct.
- Clearly it was the Commissioner of Police (or his delegate) who was dealing here with what the Act describes as the “complaint”.[38] Either by s 42(2) or by s 42(5), the Commissioner of Police had to deal with the complaint in the way that the Commissioner considered most appropriate, but subject to the CCC’s monitoring role. The term “deal with” in this context is defined by Schedule 2 of the Act as follows:
“Deal with, a complaint about corruption or information or matter involving corruption, includes –
(a)investigate the complaint, information or matter; and
(b)gather evidence for –
(i)prosecutions for offences; or
(ii)disciplinary proceedings; and
(c)refer the complaint, information or matter to an appropriate authority to start a prosecution or disciplinary proceeding; and
(d)start a disciplinary proceeding; and
(e)take other action, including managerial action, to address the complaint in an appropriate way.”
- As he wrote in December 2014, the Assistant Commissioner had decided what should be done, and therefore what should not be done, to deal with this complaint. He had decided to do none of the things within paragraphs (a), (b), (c) and (d) of that definition. In particular, he had decided not to investigate, or further investigate, the complaint. The investigation by the Police Service of this complaint was thereby at an end. The complaint was to be “dealt with” by the “managerial action” which he then proposed.
- Because that course was immediately resisted by the CCC, this decision was not implemented. The managerial action, which the Assistant Commissioner had decided should be taken, was not in fact taken by 19 December 2014, when the CCC purported to assume responsibility of the investigation of the complaint under s 48.[39] If, as the appellant argued, the CCC’s power under s 48(1)(d) (or s 47(1)(c)) is not exercisable once a complaint has been finally “dealt with” by the Commissioner, that stage had not been reached and that limitation upon the CCC’s power, if accepted, could not have founded the relief which was sought.
- A variant of the appellant’s argument was that a decision by the Commissioner of Police (or his delegate), as to the entirety of what should be done (and not done) to deal with the complaint, is itself an event which puts paid to the power of the CCC to deal with the complaint and, in particular, to investigate it. That decision having been made, it was argued the CCC’s powers for this complaint no longer existed.
- The essential difficulty in that argument is that by an implication, it would substantially limit the monitoring role of the CCC as expressed in s 47 and s 48. It is inherent in the role of monitoring that, on occasion, the CCC will disagree with the Commissioner in his dealing with a complaint. The notion that the Commissioner of Police, or more generally a public official, could preclude the exercise of the powers conferred in s 47 or s 48 simply by announcing his or her own decision as to how to deal with a complaint seems inconsistent with the CCC’s monitoring role. The limitation for which the appellant argued is not only not expressed in the legislation; it would compromise “the overriding responsibility [of the CCC] to promote public confidence in the way corruption within a unit of public administration is dealt with”.[40] The argument cannot be accepted.
- The appellant’s argument emphasised what was said to be the desirability of finality. From the appellant’s perspective, as the subject of a long running investigation of corruption, the finality of an outcome with which he agreed would clearly be important. But his is not the only interest in this process. There is also the public interest, to be served by the proper performance of the CCC’s function of ensuring that a complaint involving corruption is dealt with in an appropriate way.[41] The importance of finality from the perspective of the subject of a complaint of corruption is not sufficient to qualify the express and unambiguous terms of the relevant provisions of the statute.
- The appellant argued that the power to assume responsibility for and complete the investigation was not exercisable in this case because the investigation of the complaint had been completed. As I have noted, the investigation by the Police Service was at an end because of the Assistant Commissioner’s decision. But it is another thing to say that the investigation of the complaint was complete, in the sense that every potentially relevant fact or circumstance had been identified and considered. It appears that the Assistant Commissioner did not consider the further evidence described by the Appeal Tribunal which I have set out above at [23]. And the appearance of incompleteness of this investigation is confirmed by the absence of any characterisation of the appellant’s conduct as mere inadvertence or something more serious. Of course, subject to the CCC’s monitoring role, it was a decision for the Commissioner of Police (or his delegate) to decide whether to further investigate the complaint. He was not obliged to do so. But it could not be found, on the evidence before the primary judge, that the investigation had been completed, in the sense that every relevant fact or circumstance had been identified and considered. Rather the Assistant Commissioner had decided not to complete the investigation, for reasons which he then expressed. In this proceeding, the merits of his reasoning are not in question. The present relevance of his reasoning is that it demonstrates the difficulty for the appellant in proving that the power under s 48(1)(d) was not exercisable in this case because the investigation of the complaint had been completed.
- In this appeal it is unnecessary to consider the correctness of Arndt v Crime and Misconduct Commission. Assuming, as the appellant submits, the CCC was able to apply to QCAT to review the Assistant Commissioner’s decision, it does not follow that the CCC’s power to assume responsibility for the investigation was affected. In the performance of its monitoring role, the CCC is given powers to intervene where it disagrees with a course which is being taken in dealing with a complaint. If the CCC’s powers in its monitoring role in response to a decision by the Commissioner or another public official were limited to seeking a review by QCAT, those powers would be very much eroded. Again there is no indication from the language of any relevant provision that the CCC’s powers are limited if there is a reviewable decision.
- It follows that there was no expressed or implied limitation upon the power of the CCC to assume responsibility for an investigation of the appellant’s conduct. The investigation was apparently not completed, or at least, the contrary was not proved. The primary judge was correct to refuse the relief which was sought and to dismiss the originating application.
Conclusion and orders
- I would dismiss the appeal and order the appellant to pay the costs of each respondent of the appeal.
- DOUGLAS J: I agree with the reasons of Philip McMurdo JA and the orders proposed by his Honour.
- BOND J: I agree with Philip McMurdo JA.
Footnotes
[1] Formerly the Crime and Misconduct Commission.
[2] Lee v Crime and Corruption Commission & Anor [2014] QCATA 326.
[3] Lee v Crime and Corruption Commission & Anor [2015] QSC 226.
[4] Lee v Crime and Corruption Commission & Anor [2014] QCATA 326, [108].
[5] [2014] QCATA 326, [47].
[6] [2014] QCATA 326, [52].
[7] [2014] QCATA 326, [56].
[8] [2014] QCATA 326, [93].
[9] [2014] QCATA 326, [90].
[10] [2014] QCATA 326, [90].
[11] [2014] QCATA 326, [119].
[12] [2014] QCATA 326 (footnotes omitted).
[13] Crime and Misconduct and Other Legislation Amendment Act 2014 (Qld).
[14] By s 81 of the 2014 Act, s 416 was inserted, by which the Commission or a public official was required to deal with an existing complaint under the Act as in force on the commencement date.
[15] s 41(1).
[16] s 45(1).
[17] s 46(2)(b).
[18] As defined in Schedule 2.
[19] As set out above at [15].
[20] s 49(1).
[21] At [27] above.
[22] s 47(1)(c), s 48(1)(d).
[23] Applicant’s written submissions to the primary judge para 30.
[24] Applicant’s written submissions to the primary judge para 32.
[25] (2002) 209 CLR 597, 603 [8].
[26] s 219G(2).
[27] [2015] QSC 226, [50].
[28] [2015] QSC 226, [51].
[29] [2015] QSC 226, [52]-[62].
[30] [2015] QSC 226, [65].
[31] [2015] QSC 226, [68]-[69].
[32] [2015] QSC 226, [71].
[33] [2010] QSC 303.
[34] [2010] QSC 303, [85].
[35] [2015] QSC 226, [80].
[36] Appellant’s written submissions para 33.
[37] [2013] QCATA 340.
[38] The term “complaint” being consistently used in the CCC Act to refer to “complaints about, or information or matter” involving police misconduct or corrupt conduct.
[39] Until the “management” of the Police Service had taken the action which was proposed, there were things to be done in dealing with the complaint. The evidence does not support any conclusion that in the two intervening days the appellant had completed the proposed face to face program on professionalism and ethical decision making or that he had been chastised personally by the Assistant Commissioner.
[40] s 34(c).
[41] s 33.