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Yabsley v Acting Assistant Commissioner Michael Keating[2015] QCAT 258

Yabsley v Acting Assistant Commissioner Michael Keating[2015] QCAT 258

CITATION:

Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258

PARTIES:

Mark Yabsley

(Applicant)

 

v

 

Acting Assistant Commissioner Michael Keating

(Respondent)

APPLICATION NUMBER:

OCR236-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

20 March 2015

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Browne

DELIVERED ON:

1 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision made by Acting Assistant Commissioner Michael Keating on 22 August 2012 that matter 1 (as particularised) is substantiated is set aside and the following is substituted:
  1. Matter 1: Only the following particular is substantiated - On the 30 May 2012, at Brisbane you utilised Assistant Watchhouse Officer Adrian Coolwell to assist you with transportation for private purposes from the police Airwing car park to the Brisbane Airport while he was on official duty at the Brisbane City Watchhouse.
  1. The decision made by Acting Assistant Commissioner Michael Keating on 22 August 2012 that matters 3 and 4 is substantiated is confirmed.
  1. The decision made by Acting Assistant Commissioner Michael Keating on 26 September 2012 to impose a sanction on Mark Yabsley that he be demoted from the rank of Senior Sergeant 4.3 to Sergeant 3.4 effective from 26 September 2012 is set aside.
  1. Mark Yabsley must file in the Tribunal two (2) copies and give to Acting Assistant Commissioner Michael Keating one (1) copy of any written submissions as to the appropriateness of sanction to be imposed by the Tribunal by:

4:00 pm on 14 July 2015

  1. Acting Assistant Commissioner Michael Keating must file in the Tribunal two (2) copies and give to Mark Yabsley one (1) copy of any written submissions in reply by:

4:00 pm on 28 July 2015

  1. The application is listed for a further 2-hour oral hearing in Brisbane on 10 August 2015 at 9:30 am.

CATCHWORDS:

POLICE DISCIPLINARY PROCEEDINGS – SANCTION – travel on the QPS Airwing - whether honest and reasonable but mistaken belief that approval to travel given – where experienced officer – where policy requires approval for travel – whether officer utilised QPS resources – where officer had workplace injury - whether officer failed to notify – where officer left rostered duty – whether officer absent from duty – whether allegations of misconduct substantiated

Crime and Corruption Act 2001 (Qld), s 219BA, s 219H, Schedule 2

Police Service Administration Act 1990 (Qld), s 1.4

Police Service (Discipline) Regulations 1990 (Qld), s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21

Aldrich v Ross [2010] 2 Qd R 235; cited

Briginshaw v Briginshaw (1938) 60 CLR 336; cited

Crime and Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409; cited

Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384; cited

CTM v The Queen [2008] HCA 25; cited

DA v Deputy Commissioner Stewart [2011] QCATA 359; cited

Murray v Deputy Commissioner Stewart [2011] QCAT 583; cited

R v Sheehan [1999] QCA 461; cited

O'Brien v Assistant Commissioner Stephen Golleschewski, Queensland Police Service [2014] QCATA 148; cited

Watson v Deputy Commissioner McCallum [2012] QCAT 165; cited

APPEARANCES:

 

APPLICANT:

Mark Yabsley

RESPONDENT:

Acting Assistant Commissioner Michael Keating

REPRESENTATIVES:

 

APPLICANT:

Mark Yabsley represented by Mr T Schmidt of legal counsel

RESPONDENT:

Acting Assistant Commissioner Michael Keating represented by Mr P Van Grinsven of legal counsel instructed by Legal Services, Public Safety Business Agency

REASONS FOR DECISION

  1. [1]
    Mark Yabsley has been a police officer with the Queensland Police Service (QPS) for approximately 35 years. He was promoted to Senior Sergeant in 2000 and later seconded to work in the Brisbane City Watchhouse in about February 2012.
  2. [2]
    Shortly after his arrival in the Brisbane City Watchhouse Mr Yabsley’s partner left Brisbane to work in Cairns. Mr Yabsley spoke to his supervisor at the time, Inspector Montgomery-Clark (the Inspector) about his relationship. There was also a discussion about Mr Yabsley travelling on the QPS Airwing to visit his partner in Cairns.
  3. [3]
    The QPS Airwing is used to transport police officers, QPS staff and prisoners. Travel on the Airwing requires approval and the procedure for travel is contained in a policy.[1]
  4. [4]
    The Inspector approved Mr Yabsley’s travel on the QPS Airwing for flights from Brisbane to Cairns on 4 May 2012, returning on 11 May 2012.[2]
  5. [5]
    Mr Yabsley took further flights on the Airwing from Brisbane to Cairns on 14 May, returning on 16 May 2012; and on 23 May, returning on 25 May 2012.
  6. [6]
    On 3 February 2014, Mr Yabsley received a direction from the respondent decision-maker to attend a disciplinary hearing about four matters of alleged misconduct. The allegations related to Mr Yabsley’s travel on the QPS Airwing, making requests to travel, using the prisoner escort van and leaving work early. There was also an allegation that Mr Yabsley travelled on one of the flights during a time when he had a reported workplace injury.[3]
  7. [7]
    The respondent conducted a disciplinary hearing.[4] It was later determined on 22 August 2014 that the proposed charges for matters 1, 3 and 4 are substantiated and that Mr Yabsley’s conduct amounts to misconduct.[5]
  8. [8]
    Because matters 1, 3 and 4 were found to be substantiated a sanction was imposed. He was demoted from the rank of Senior Sergeant 4.3 to Sergeant 3.4 effective from 26 September 2014.[6]
  9. [9]
    Mr Yabsley seeks a review of the respondent’s decision in relation to the findings that the matters are substantiated and the sanction imposed.[7]
  10. [10]
    The Tribunal made directions at the hearing for the filing of a chronology that identifies the matters in agreement and the matters in dispute.[8] The parties have also prepared and filed written submissions.[9]
  11. [11]
    Mr Yabsley says that he had an ‘on-going approval’ to fly. He says it was reasonable in all of the circumstances to hold the honest and reasonable belief that he had on-going approval from the Inspector. He also says that his conduct had no effect on QPS resources. In relation to the WorkCover injury matter Mr Yabsley says that his actions were ‘reckless’ as opposed to ‘deliberate’.[10]
  12. [12]
    In regards to the sanction imposed Mr Yabsley says the sanction is excessive and the respondent decision-maker has considered previous conduct that was not available for him to consider because it involved a sanction that had been ‘suspended’ under the Police Service (Discipline) Regulations 1990.[11]
  13. [13]
    The respondent submits that Mr Yabsley did not have a ‘blanket’ approval to travel. The respondent submits that Mr Yabsley is a very experienced senior police officer and in all of the circumstances it was not reasonable for him to have formed the belief that he had a ‘blanket’ approval to travel.[12]

What is the Tribunal’s role on review?

  1. [14]
    The review proceeds before the Tribunal as a ‘rehearing’ on the evidence that was before the respondent decision-maker.[13] The Tribunal must hear and decide the review as a ‘fresh hearing’ on the merits to produce the correct and preferable decision.[14]
  2. [15]
    The material before the Tribunal includes transcripts of interviews conducted by the QPS as part of the disciplinary process.[15] Mr Yabsley, the Inspector and other QPS officers participated (under direction) in a police disciplinary interview.
  3. [16]
    The Tribunal on review brings the public prospective to bear and the Tribunal is bound to make its own decision on the evidence before it.[16] It is well settled law that considerable respect should be given to the views of the original decision-maker (the respondent),[17] but if the Tribunal reaches a different view ‘its duty is to act in accordance with its own views’.[18]
  4. [17]
    In determining whether the proposed charges are substantiated, the required standard to which the Tribunal must be satisfied is on the balance of probabilities.[19] The approach to be adopted was stated by Dixon J (as he then was) in Briginshaw v Briginshaw:[20]

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

  1. [18]
    In Crime and Misconduct Commission v Assistant Commissioner J P Swindells & Ors[21] Applegarth J said that the Tribunal in applying the Briginshaw civil standard of proof must be reasonably satisfied as to the truth of the fact alleged taking into consideration the seriousness of the allegation, the inherent likelihood of a particular occurrence and the ‘gravity of the consequences’ which flow from the finding. Applegarth J said:

It is unnecessary to conclude whether the evidence was capable of satisfying the criminal standard of proof. The issue is whether it was open to the tribunal on the probative evidence to not be satisfied of the particular alleged, applying the civil standard of proof.[22]

  1. [19]
    If the Tribunal finds that the disciplinary matters are substantiated it must determine whether Mr Yabsley’s conduct is police misconduct.[23] Misconduct is defined under s 1.4 of the Police Service Administration Act 1990 (Qld) and 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.[24]

What was the conduct?

  1. [20]
    The disciplinary matters found to be substantiated by the respondent decision-maker are:

Matter 1:

That between 3 May 2012 and 1 June 2012 at Brisbane and elsewhere your conduct was improper in that you inappropriately utilised Queensland Police Service resources for purposes not related to your official duties.

Section 1.4 of the Police Service Administration Act 1990 and s.9 (1) (f) of the Police Service (Discipline) Regulation 1990.

Further and better particulars-

  • utilised the QPS Police Airwing flights between Brisbane and Cairns on the 14th, 16th, 23rd and 25th May 2012;
  • submitted requests to travel between Brisbane and Cairns on the QPS Airwing and falsely indicated you had the prior approval of Inspector Montgomery-Clarke;
  • utilised QPS Airwing flights which were not approved in accordance with QPS Airwing Standing Order 20 – ‘Guidelines for Travel on Police Aircraft’;
  • your travel on QPS Airwing flights was for personal reasons;
  • utilised a prisoner escort van transporting juvenile prisoners to the police Airwing on 14 May 2012 for your personal benefit and gain;
  • On the 30 May 2012, at Brisbane you utilised Assistant Watchhouse Officer Adrian Coolwell to assist you with transportation for private purposes from the police Airwing car park to the Brisbane Airport while he was on official duty at the Brisbane City Watchhouse.

Matter 3:

That between the 1 May 2012 and the 12 May 2012, at Brisbane and elsewhere your conduct was improper in that you failed to notify Inspector Montgomery-Clarke and the staff at the QPS Airwing you were unable to perform prisoner escort duty due to a workplace injury.

Section 1.4 of the Police Service Administration Act 1990 and s.9 (1) (f) of the Police Service (Discipline) Regulation 1990.

Further and better particulars

In relation to this matter investigations have identified that you:

  • were diagnosed as being totally incapacitated from the 2nd May to and including the 11 May 2012 after sustaining a workplace injury at the Brisbane City Watchhouse (BCWH) on the 30th April 2012;
  • were therefore unable to provide the ‘duty of care’ required by operational police escorting prisoners in QPS custody;
  • utilised the QPS Airwing on 4 May 2012 and 11 May 2012; and
  • were using the QPS Airwing for personal benefit or gain.

Matter 4:

That on the 14 May 2012 and 30 May 2012 at Brisbane your conduct was improper in that you were absent from duty without leave granted or reasonable excuse.

Section 1.4 of the Police Service Administration Act 1990 and s.9 (1) (f) of the Police Service (Discipline) Regulation 1990.

  • were rostered to perform duty from 6am to 2pm on 14 May 2012;
  • without authorisation left your rostered duty on or about 11:06 am on that date;
  • were rostered to perform duty from 6am to 2pm on 30 May 2012;
  • without authorisation left your rostered duty on or about 12:30pm on that date;
  • terminated duty on those dates to travel to the QPS Airwing for personal reasons.

Matter 1 – What are the issues to be determined by the Tribunal?

  1. [21]
    Mr Yabsley says he had approval to fly on 14, 16, 23 and 25 May 2012 because he believed the flights had been approved by the Inspector. Mr Yabsley says that a request to fly on the Airwing generated an on-line form and the system automatically sent emails to the applying officer and the Inspector as the approving officer.[25] Mr Yabsley says that on each occasion (he made a booking) the Inspector was aware prior to a flight being undertaken that Mr Yabsley had used (what he believed) was the Inspector’s on-going approval to authorise his travel.[26] Mr Yabsley says that when he was travelling he was performing a function because he was available for prisoner escorts and this was entered on the booking request form (for travel).
  2. [22]
    The respondent submits that Mr Yabsley’s reason for travel was on compassionate grounds and this should be the reason entered on the flight booking request form (for travel). The respondent submits that Mr Yabsley maintains his position that his primary purpose (for travel) was to assist with prisoner escorts but it is only ‘upon being pressed that he concedes he wanted to see his partner’.[27] The respondent submits that Mr Yabsley did ‘concede’ in the disciplinary interview that he would not ordinarily volunteer to do prisoner escorts on the Airwing and had his partner not been in Cairns, he would not have travelled.[28]
  3. [23]
    The respondent submits that the Inspector was the State Coordinator for Watchhouses and this included approving Airwing travel for prisoners from all over the State.[29] The respondent says that the Inspector received several emails and the ‘requirement’ to seek approval (to fly) was on Mr Yabsley prior to submitting the flight booking request.[30]
  4. [24]
    The respondent, in the written submissions filed, refers to the policy for travel on the Airwing. The respondent says that the policy is not ambiguous and the document ‘speaks for itself’.[31] The respondent says that travel authorised by a commissioned officer infers that the person travelling (subject to s 1(a) to 1(d) of the policy) is ‘performing official duties’.[32]
  5. [25]
    The respondent ‘accepts’ that an off duty police officer who is travelling on the Airwing on compassionate grounds may be requested (where the officer is able) to assist with prisoner escorts during the authorised flight. The respondent says that the off duty officer would be advised of this upon his or her arrival at the Airwing. The respondent says in that instance, the police officer is ‘undertaking an official police function (duty) at that specific time only’.[33] The respondent says that the function ceases upon the prisoner escort arriving at its destination and the prisoner being accepted into custody by other officers.[34] The respondent says that for the police officer’s travel on the Airwing to ‘fall’ within s 1(a) to 1(d) of the policy the reason for travel must relate to the relevant person ‘performing official duty’ at the time the booking request is submitted.[35]
  6. [26]
    In this case Mr Yabsley says that in order to substantiate matter 1, the onus (of proof) was on the respondent decision-maker (now the Tribunal on review) to be satisfied on the balance of probabilities that he was not honestly or ‘alternatively reasonably mistaken in his belief’.[36]
  7. [27]
    It is settled law in Australia that once the defence of honest and reasonable but mistaken belief has been raised, the respondent bears the onus of ‘displacing the ground’.[37] In CTM v The Queen[38], the High Court said that the concept of honest and reasonable belief has a subjective element that is ‘within the knowledge of the accused’ and an objective element that ‘must be capable of being measured against the evidence by a tribunal of fact’.[39]
  8. [28]
    In Watson v Deputy Commissioner McCallum[40] the Tribunal had to determine whether the applicant held an honest and reasonable but mistaken belief as to the circumstances giving rise to the charges. The Tribunal referred to the ‘general proposition’ that in a disciplinary proceeding the respondent has a ‘persuasive onus’ to show that the applicant’s belief did not exist.[41] The Tribunal said that unless the existence of an honest and reasonable but mistaken belief is excluded to the required Briginshaw standard, the applicant ‘cannot be found guilty’.[42] Judicial member J Thomas (presiding) said:

We are prepared to accept that unless the existence of an honest and reasonable but mistaken belief on Constable Watson’s behalf that the dog had not bitten Mr B is satisfactorily excluded having regard to the principles in Briginshaw, he cannot be found guilty on matter one. Neither could he be found guilty on matter three, which alleges that he was untruthful on occasions when he denied that a dog bite incident had occurred.

  1. [29]
    In this case, in relation to matter 1, the Tribunal must determine whether Mr Yabsley did form an honest belief and was it reasonable for him to believe he had approval to fly. Consistent with Watson’s case, unless the existence of an honest and reasonable but mistaken belief on Mr Yabsley’s behalf that he did not have the Inspector’s approval to fly is satisfactorily excluded to the required standard, the particulars of matter 1 that relate to travel on the Airwing (on 14, 16, 23 and 25 May 2012) cannot be substantiated.

What did the Inspector say about giving his approval to fly?

  1. [30]
    The Inspector said that Mr Yabsley wanted his approval to travel on the Airwing so that he (Mr Yabsley) could ‘rescue his relationship’.[43] The Inspector said he told Mr Yabsley that he would ‘help out wherever [he] could’ and said that he did not think he could approve the travel by ‘rank alone’ to authorise a flight on the Airwing for ‘personal use’.[44] The Inspector said Mr Yabsley told him that he had received advice from ‘somebody’ he knew at the Airwing and said that ‘it could be done’.[45]
  2. [31]
    The Inspector said he told Mr Yabsley that he would need to get something in writing ‘from them’ and it (the travel) has to be ‘at no costs to the region’ and he ‘[has] to be able to approve it’.[46]
  3. [32]
    The Inspector said that Mr Yabsley sent emails to him that had been exchanged between Mr Yabsley and Malcolm Lynch, Chief Pilot (of the Airwing). A relevant extract of Mr Yabsley’s email to Malcolm Lynch on 24 April 2012 is as follows:

Can you advise what the policy is for police travelling on the airwing to Cairns. The query is I need to travel to Cairns in the near future and I have been advised that I can travel on the airwing subject to approval by my commissioned officer.

My Inspector has asked if there is any cost to the region (MNR) if I was to travel by airwing.[47]

  1. [33]
    A relevant extract of Malcolm Lynch’s email (in reply) to Mr Yabsley on 26 April 2012 is as follows:

Travel on the coastal airwing is not cost covered from the region. Seat availability is on the basis of the purpose. If your travel is work related then first in, first served. If your travel is non-work related then there is always the possibility you could be bumped off the flight at the last minute to accommodate legitimate work travel. Refer below: …[48]

  1. [34]
    The email from Malcolm Lynch contains information about travel for work and non-work related travel.[49] Mr Lynch’s email refers to the policy applicable for travel on the Airwing. A section or part of the policy is included in the email (sections 1 and 2). The extract of the policy (included) refers to ‘persons’ that are permitted to travel with ‘the prior approval of a commissioned officer of police’. The policy also provides that ‘no other person’ except those permitted to travel ‘shall travel’ without authority from the Superintendent, Specialist Services Branch for passengers boarding in Brisbane and any Assistant Commissioner for passenger boarding at their respective centres.[50]
  2. [35]
    The Inspector had a further discussion with Mr Yabsley about travel (on 26 April 2012). The Inspector said that Mr Yabsley showed him the email (from Mr Lynch). The Inspector said that he told Mr Yabsley that there being no cost to the region was the most ‘important factor’ and said that if he can approve it he would like him to associate himself with either a prisoner or some property.[51] The Inspector said that Mr Yabsley went outside to speak to his (the Inspector’s) roster clerk (on 26 April 2012) about changing his shifts in relation to ‘that flight’.[52]
  3. [36]
    The Inspector said that he told Mr Yabsley to put him (the Inspector) ‘down’ as the commissioned officer to approve the travel.[53] The Inspector said he took the time to pick Mr Yabsley up from the Airwing (on 11 May 2012). He also said, when questioned about the policy (contained in Mr Lynch’s email), that he must have read it ‘quite quickly’ and said he understood that if it (the travel) was non-work related then you ‘got kicked off’. He said that it (the travel) was ‘first come first served’ and that it would be a ‘good idea’ if he (Mr Yabsley) could associate himself with a prisoner or property.[54]
  4. [37]
    The Inspector agreed when questioned that he has subsequently become aware that (his interpretation of the policy) was wrong and he has been given managerial guidance.[55]
  5. [38]
    The Inspector said that he did not give approval for Mr Yabsley to travel again on the Airwing (after 4 and 11 May 2012). He said that ‘unfortunately [he] wasn’t checking the emails’.[56] The Inspector said he saw Mr Yabsley at the QPS Airwing on 25 May 2012 and asked Mr Yabsley ‘Who authorised that?’ The Inspector said Mr Yabsley told him ‘I did’.[57]
  6. [39]
    The Inspector said he sent an email to Mr Yabsley on 28 May 2012 and a further email dated 29 May 2012[58] about approving travel on the Airwing. An extract from the email dated 28 May 2012 is as follows:

Mark,

Candidly I’m not happy. Whilst I was fine to approve the [Airwing] flight as a once off as you needed to stave off a crisis with your partner in Cairns, using my name to approve your travel when ever you feel like it goes beyond the pale. Just so we’re clear – Each and every time you want to use my name as approving something, you have the courtesy to ask me first please.

How many times have you actually put me down as authorising flights?

Tony[59]

  1. [40]
    The Inspector said that he discussed the matter of flying with Mr Yabsley during his ‘very next shift’. The Inspector said that he asked Mr Yabsley ‘how many times have you flown on my authorisation’ to which Mr Yabsley replied ‘four times’. The Inspector said he had ‘only clearly authorised’ one flight and said that he ‘expressed considerable disappointment’ (to Mr Yabsley). The relevant extract from the interview is as follows:

… Um at that time I expressed considerable disappointment in him um and used the analogy that if I’d authorised four hours overtime in one instance that didn’t give him carte blanche to ah work four hours overtime whenever he felt like it.[60]

  1. [41]
    The Inspector was asked whether there was a conversation with Mr Yabsley after or around the time of authorising the first flight (for travel on 4 and 11 May 2012) that would give Mr Yabsley the ‘understanding that he could book the Airwing whenever he wanted to using your [the Inspector’s] name?’[61] The Inspector said ‘absolutely not’.[62] He said that there was no discussion as to any further trips and said that he was ‘taken a back’ when he (Mr Yabsley) said that it had been a ‘misunderstanding or miscommunication’.[63] The Inspector said ‘to be honest with you I think that’s a flat out lie’.[64]

What did Mr Yabsley say about approval to fly?

  1. [42]
    Mr Yabsley said that he went on several flights and ‘nothing was said to [him]’.[65] He said it was his ‘belief’ that he had a ‘blanket approval to travel on those flights’ and the Inspector had been given a copy of the itinerary.[66]
  2. [43]
    Mr Yabsley maintained his position throughout the disciplinary interview about the Inspector having given his approval. He said that ‘in hindsight’ after the discussion with the Inspector in late May 2012 he (Mr Yabsley) was to inform the Inspector of further flights. Mr Yabsley said that the Inspector never said (in late May 2012) ‘not to undertake the flights’ but only to ‘inform him’ of flights to be undertaken.[67]
  3. [44]
    Mr Yabsley did recall seeing the Inspector at the Airwing on 25 May 2012 but said that he could not recall (having) a conversation with the Inspector at the Airwing on 25 May 2012.[68]
  4. [45]
    Mr Yabsley could not recall the email sent by the Inspector on 28 May 2012 but did recall having a conversation with the Inspector later that day.[69]
  5. [46]
    Mr Yabsley also maintained throughout the disciplinary interview that when he was travelling on the Airwing he was ‘performing a function’.[70] He said when questioned that he was in uniform ‘most times’ when he travelled.[71] He accepted, when questioned, that he had never undertaken an escort (of prisoners) as part of his duties from Brisbane City Watchhouse.[72] The relevant extract of the transcript is as follows:

MA Do you just getting back to the authorisation and believing that he’d given you blanket coverage, do you think that was unusual for a um Inspector to give someone blanket coverage to use their name for trips not relating to their work on a Police Airwing?

MY Well you’re saying it’s not related to work, I’m saying that it was performing a function that um that was the understanding I had.

MA Ok what do you say, not relating to your work, we said yesterday that you’d never undertaken an escort as part of your duties from Brisbane city Watchhouse do you agree with that?

MY Yes and on that point you raised a um you gave me a list of persons who’d undertaken escorts.[73]

  1. [47]
    Mr Yabsley was questioned about the ‘purpose’ of his travel on the Airwing. Mr Yabsley said that for the flight on 14 May 2012 he was assisting with prisoners from Brisbane to Cairns. He accepted when questioned that he was not ‘rostered on duty’. He said that part of ‘his intention’ (in flying) was to see his partner as they were still ‘having issues’ in relation to their relationship. He said he contacted the Airwing and was told they had vacant seats and that there were prisoners on board that required escorting.[74]
  2. [48]
    Mr Yabsley said that he was performing a function when he flew on 14 May 2012. He said that he did assist with the movement of prisoners. Mr Yabsley was questioned about ‘records’ that indicate he was not assisting with prisoner escorts on 14 May 212. Mr Yabsley said that he was ‘utilised on the return trip’ (on 16 May 2015).[75] Mr Yabsley said that he did not make any notes of the prisoner’s names in relation to the escorts that he undertook but maintained that he was assisting in the transportation of prisoners.[76]
  3. [49]
    Mr Yabsley was questioned about whether he would allow staff to make a blanket approval for various activities. The investigating officer said to Mr Yabsley, ‘you’ve been an officer in charge of various areas for the past twelve years…’.[77] Mr Yabsley said that he would not allow staff (he was supervising) to have a blanket approval. Mr Yabsley said that it was probably ‘best practice’ to say ‘let me know each time you are flying’. Mr Yabsley said (in relation to his case) ‘this’ was never ‘raised with’ him.[78]
  4. [50]
    Mr Yabsley was also questioned about the approval of the flights given on 4 and 11 May 2012. Mr Yabsley accepted that the Inspector approved the flights on compassionate grounds and said that he believed he did have approval based on the ‘conversation’ he had with the Inspector (in May 2012).[79] He said the Inspector ‘brought it to [his] attention that in future he would prefer for [him] to inform him each time [he] was to fly’.[80]
  5. [51]
    Mr Yabsley did not accept, when questioned, that the compassionate grounds no longer existed after the travel on 4 and 11 May 2012. He said that he thought he was doing the right thing for the service if he was travelling on the police plane because he was ‘contributing towards some benefit not only to [himself]’ and said that his intentions were ‘good’.[81] Mr Yabsley accepted, when questioned, that he was gaining a benefit from the flights and said that (the benefit to him) was the ‘offset’.[82]
  6. [52]
    Mr Yabsley said that the Inspector received emails about (his) other flights and the ‘matter’ was not ‘raised to him that [he] was doing anything untoward’.[83] Mr Yabsley said that he ‘assume[d]’ the Inspector got the email.[84] When questioned about his understanding of the number of emails received by the Inspector as the State Coordinator for the Watchhouse Mr Yabsley said that he did not know the Inspector’s email system.[85]
  7. [53]
    Mr Yabsley was questioned about any risk to the QPS ‘by people’ utilising the police plane. Mr Yabsley said that he is still a police officer performing a function and gave the example of being at a park (off duty) and seeing an assault take place and in intervening he would be ‘performing a function’ and he is ‘off duty’.[86]
  8. [54]
    Mr Yabsley was questioned about his travel on 11 and 14 May 2012. He said that he did complete a booking form. Mr Yabsley did not agree that he ‘undertook’ those flights without prior approval of a commissioned officer.[87] He said that he believed that the Inspector did not have any objection to authorising the flights so long as there was no cost to the region (he says there was no cost) and the travel was based on his interpretation of the policy in relation to the ‘duties he [was] going to perform’.[88]
  9. [55]
    Mr Yabsley when questioned about whether it would be appropriate to inform the Inspector about undertaking prisoner escorts on the Airwing said that the Inspector ‘never mentioned’ at the time to inform him of each flight. Mr Yabsley said ‘the general consensus’ (in his view) was the Inspector would approve them and he could use his name ‘any time’ he wished to travel.[89]
  10. [56]
    Mr Yabsley was questioned about all of his flights. He accepted that he was on sick leave during the flight on 4 and 11 May 2012.[90] Mr Yabsley was questioned about the booking confirmation email forwarded to Raymond Duryea, Operations Co-ordinator, that indicates he (Mr Yabsley) is available for prisoner escorts on the flight on 16 May 2012 and was told that the Inspector said he had not authorised the flight. Mr Yabsley said that when applying (for the travel) he was performing prisoner escorts.[91] Mr Yabsley said that for the flight on 23 May 2012 the purpose was to ‘assist the movement of prisoners but also to undertake…[continue] the establishment of [his] relationship with his partner’.[92]
  11. [57]
    Mr Yabsley accepted when questioned that he had a ‘rest day’ on 23 May 2012 when he flew. He maintained throughout the interview that the purpose of the flight on 23 May 2012 was to escort prisoners and that he had blanket approval (from the Inspector). He said that even though he was off duty on a rest day, he was ‘still performing a function of a police officer’.[93]
  12. [58]
    When questioned about the flight on 25 May 2012, Mr Yabsley accepted that the booking was made on the Police Airwing website on 17 May 2012 and that the booking indicated himself as being available for prisoner escort. Mr Yabsley accepted that he was rostered ‘PDO’ and that he was off duty on the flight.[94] Mr Yabsley maintained that he had the Inspector’s prior approval to fly and that he was available to assist with the movement of prisoners should he be required.[95]
  13. [59]
    Mr Yabsley was questioned about whether he agreed that he did get a financial benefit out of the flights that he (Mr Yabsley) says were taken as a ‘voluntary service performing a function’.[96] Mr Yabsley said he believed it would be ‘reasonable’ referring to the ‘actions’ he took.[97] Mr Yabsley was questioned about whether he got a financial benefit out of travelling on the Airwing. Mr Yabsley said, ‘Um in regards to that I didn’t um pay for a commercial flight, yes’.[98]
  14. [60]
    Mr Yabsley was also questioned about using the Airwing in applying the ‘SELF TEST’.[99] Mr Yabsley said, ‘Um I felt, I believed it would be reasonable the actions which I took, um on the beliefs that I held at the time’.[100]
  15. [61]
    Mr Yabsley said during the disciplinary interview that the policy (for flying) is ‘ambiguous’.[101] He said that the relevant part of the policy that applied to his travel was s 1(a). Mr Yabsley said that s 1(a) can be ‘interpreted any way’ and said that his original interpretation (and that of the Inspector) was that ‘any police officer can travel with the prior approval’ of the commissioned officer. He further explains his interpretation (of the policy) by saying any police officer (who is) ‘performing official duty’ (can travel with approval from a commissioned officer).[102]
  16. [62]
    Mr Yabsley said that it was not clear in the policy as to the distinction between official on duty or unofficial on duty or ‘your not on duty’.[103] He said that if you are travelling and you are escorting prisoners then you are ‘still performing a function an official duty as a police officer’.[104] Mr Yabsley maintains this position throughout the interview.[105]

What does the QPS policy (Standing Order No 20) and other QPS officers say about travel on the Airwing?

  1. [63]
    The policy allows certain ‘persons’ to travel on the Airwing with the prior approval of a ‘commissioned officer’ and this includes a police officer ‘performing official duty’. The policy says that ‘no other person’ except ‘those mentioned’ (in s 1(a) to (d)) ‘shall travel’ without the authority of, as stated in the policy: (a) the superintendent, specialist services branch; (b) any assistant commissioner for passengers boarding at their respective centres. The policy also provides for ‘concessional travel’ including travel due to illness or other ‘compassionate grounds’.[106]
  2. [64]
    There is evidence before the Tribunal from other QPS officers about Mr Yabsley’s travel on the Airwing. Gary Keillor (Senior Sergeant of the Brisbane City Watchhouse), Malcolm Lynch (Chief Pilot at the Airwing), Nikolay Radev (Office manager of Operations at the Airwing) and Raymond Duryea (Operations Coordinator for the Airwing) participated in the disciplinary interviews and were questioned about Mr Yabsley’s travel.
  3. [65]
    Mr Keillor said that Mr Yabsley approached him about opportunities to escort prisoners or transports to Cairns on the Airwing. Mr Keillor said that Mr Yabsley spoke about his ‘partner’ being in Cairns and that he would like to get any opportunity he could to go to Cairns to be able to spend time with his partner to ‘establish his relationship’.[107] Mr Keillor said Mr Yabsley approached him ‘later on’ (after the orientation) at the Watchhouse in April 2012.[108] Mr Keilor said that he explained to Mr Yabsley that he does get the ‘odd call’ to put a person on the Airwing and said that if he does they have to get the authority from a commissioned officer.[109]
  4. [66]
    Mr Keillor was questioned about Mr Yabsley’s travel on the Airwing and whether it was normal procedure for an officer being on a rest day (as Mr Yabsley was on 23 May 2012) to list that he is available to escort prisoners. Mr Keillor said that it is not ‘normal’ for an officer on a ‘rest day’ to ‘do the flights’. He said that ‘it puts them on operational shift or on operational duty’ and makes the officer eligible for workcover so it needs to be ‘authorised’ through the office. Mr Keillor said that if he receives a request for prisoner escorts he will look at ‘people on rostered shift’.[110] Mr Keillor said that Mr Yabsley did not speak to him about the flights (that Mr Yabsley took).
  5. [67]
    Mr Lynch said that the booking process for the Airwing involves the person (who has a need to travel) to fill in the booking form and they need to nominate the commissioned officer authorising the travel provided that the travel is within terms of (a), (b), (c) and (d) of the policy. He said a copy of the booking (for travel) goes to the coordinator, one copy goes to the commissioned officer and a copy (he thinks) goes back to the person making the request.[111]
  6. [68]
    Mr Lynch said that when ‘we’ receive it (a booking request) we ‘assume’ that the commissioned officer ‘has given his approval’.[112] The relevant extract from the transcript is as follows:

ML: So ah when we receive it we assume that the commissioned officers has given his approval, he’s been across the whole issue and ah otherwise if he didn’t approve it I imagine that he would ring us up and say look I didn’t approve this flight and that person would be unloaded. Ah or it may be that ah he said we have no further need for that person to travel and therefore unload him. So ah but, but than again um I guess it is opened to ah to ah abuse I suppose if ah, if given the current email system when you walk into your office in the morning and there’s 150 emails on your desk and by this time the persons already departed.[113]

  1. [69]
    Mr Lynch was questioned about prisoner escorts. He said that ‘from time to time’ we are short of escorts and the way this is managed is to defer prisoner travel to a later date. When asked if Mr Yabsley would be doing the service a favour by being available as an escort Mr Lynch said that ‘yes’ we do have an escort ratio and if the ratio cannot be met then ‘he would be doing us a service’ by providing the necessary prisoner ration.[114] Mr Lynch also agreed when asked to consider ‘on the other side of the coin’ (there is) the improper use of the Airwing for ‘personal gain’. Mr Lynch said, ‘Yeah, it’s ah inappropriate, yeah’.[115] Mr Lynch said that they receive ‘quite a few requests’ over the telephone and emails from people wanting to travel on ‘compassionate’ grounds or for whatever purpose and said that ‘it’s always handled well’ and this is one of the ‘rare instances’ (in Mr Yabsley’s case) he has ‘come across’ since the new booking system.[116]
  2. [70]
    Mr Radev said that the Superintendent SBS can approve travel on compassionate grounds.[117] He said that the chief pilot is creating and reviewing the SOPs (policy). He said the Airwing has an internal website that has a link to the booking form. When asked if the website has the SOPs (policy), he said, ‘No’.[118] He confirmed that the booking application (by email) goes to the booking officer, to the passenger (if different to the booking officer), the authorising officer and the Airwing coordinators.[119] He also said that in his experience he was aware of ‘issues’ with emails having been forwarded to the authorising officer and the authorising officer does not know about the travel.[120]
  3. [71]
    Mr Duryea confirmed that Mr Yabsley was used for escorting prisoners on some of the flights. He said that Mr Yabsley had contacted him a number of times and had told him that he had a ‘lady friend’ in Cairns.[121]
  4. [72]
    Mr Duryea said that Mr Yabsley did query probably ‘three times’ whether it is ‘ok’ for him to take ‘these’ flights. He said that he told Mr Yabsley ‘on every occasion that if he’s authorised by a commissioned officer to place that booking um I’ve got no concerns’.[122] He said that Mr Yabsley would not be getting a seat (on the flight) unless a seat was available. He also said that he did have a problem with escorts and said he was ‘constantly ringing officers in charge of watchhouses to try and get escorts’.[123]

Did Mr Yabsley form an honest belief and was it reasonable for him to believe he had approval to fly?

  1. [73]
    I am satisfied to the required standard that Mr Yabsley did form an honest belief that he had the Inspector’s approval to fly and that it was reasonable having considered all of the material, for him to form the belief.
  2. [74]
    Mr Yabsley has maintained throughout the disciplinary interviews that he believed the Inspector could approve his flights and that when he was flying he was performing a police function even though he was off duty at the time because he made himself available for prisoner escorts.
  3. [75]
    The Airwing flight booking confirmation notices show that Mr Yabsley was available for prisoner escort duties on all of the flights. The booking confirmation for travel on 4 and 11 May 2012 sent by email to Mr Yabsley and the Inspector on 26 April 201 confirms details of the flights and states that ‘officer(s) may be required to escort prisoners’ and that the ‘Commissioned/Authorising officer’ is the Inspector.[124]
  4. [76]
    The flight booking confirmations for travel on 14, 16, 23 and 25 May 2012 show that Mr Yabsley entered ‘available prisoner escort’ as his reason for travel on all of flights.[125] Mr Yabsley was utilised for some prisoner escort duties for two of the flights on 16 May 2012 and 23 May 2012.[126]
  5. [77]
    Mr Yabsley has maintained throughout the police interviews that a copy of the emails containing information about his flights (booked) was sent to the Inspector and there was no discussion or issue raised with him about the flights. Mr Yabsley has also maintained throughout the police interviews that the Inspector gave him a ‘blanket’ approval to fly.
  6. [78]
    In relation to the policy applicable for Airwing travel, I accept the respondent’s submission that the use of the words ‘official duty’ as they appear in the policy in s 1(a) would mean a police officer who is on rostered duty. This is consistent with the booking request form used for travel on the Airwing that requires information such as the ‘reason for travel’ to be completed.[127]
  7. [79]
    I also accept, however, that it was reasonable for Mr Yabsley to form the belief that the Inspector (as a commissioned officer) could approve his travel under the policy because he (the Inspector) told Mr Yabsley to ‘put him down’ as the authorising officer when they discussed booking the flights on 4 and 11 May 2012. The Inspector said in the disciplinary interviews that he read the email from Mr Lynch (shown to him by Mr Yabsley). The Inspector said he told Mr Yabsley to put himself down as the authorising officer and that Mr Yabsley should associate himself with prisoner escort duties. The Inspector said that he understood (in relation to travel on the Airwing) that if it was non-work related then you got ‘kicked off’ (the flight). The Inspector agreed when questioned that his understanding of the policy was wrong and he was given managerial guidance about the policy.
  8. [80]
    Mr Yabsley maintained throughout the interviews that he was performing a (police) function when he flew because he had made himself available for prisoner escort duties. The flight booking emails confirm that Mr Yabsley indicated his availability for prisoner escorts on all flights. Mr Yabsley said during the disciplinary interview that he believed the Inspector had given his approval for him to fly because nothing (further) was said to him (by the Inspector) and the booking confirmations for the flights were being sent by email to the Inspector. There is independent evidence before me about the flight bookings that are sent by email to the passenger (booking officer) and the authorising officer. Mr Duryea said in the disciplinary interview that he was aware of ‘issues’ with emails having been forwarded to the authorising officer and the authorising officer does not know about the travel.
  9. [81]
    The Inspector did approve the flights on 4 and 11 May 2012. The Inspector did not say during the disciplinary interview that he told Mr Yabsley that approval would be given (by him) for only the flights on 4 and 11 May 2012. The Inspector said that he was not checking his emails.
  10. [82]
    I am not satisfied to the Briginshaw standard that the existence of an honest and reasonable but mistaken belief on Mr Yabsley’s behalf that he did not have the Inspector’s approval to fly has been satisfactorily excluded. The particulars of matter 1 relating to utilising the Airwing, submitting requests to travel, utilising the Airwing for flights not approved by the policy and travelling on the Airwing for personal reasons is not substantiated.

Matter 1 - Did Mr Yabsley use a prisoner escort van to travel to the Airwing on 14 May 2012 for his own personal use?

  1. [83]
    Mr Yabsley did use the prisoner escort van. He said in the written submissions filed in the disciplinary proceedings that because his travel with the Airwing had been approved and he had indicated that he was available to assist with prisoner escorts, he ‘thought’ he could assist with prisoners being transported and assist with unloading.[128] Mr Yabsley said that the prisoner van was travelling from one police establishment to another and it did not have to deviate ‘from its route’ due to himself ‘being part of that’.[129]
  2. [84]
    Stephen Gierke, Sergeant of police for the Brisbane Watchhouse said that prisoners are transported to the Airwing three times a week (usually). He said that people are allocated through the Airwing (to transport prisoners). Mr Gierke was questioned about whether ‘other coppers’ flying up north could escort a prisoner ‘on the way’.[130] Mr Gierke said ‘Exactly yeah’.[131] He agreed, when questioned that not many staff from the Watchhouse escort prisoners to the Airwing.[132]
  3. [85]
    Mr Gierke was questioned about Mr Yabsley who had been seen on a video to carry a bag and ‘hop in’ the rear section of the transport van on 14 May 2012. Mr Gierke said that he was ‘approached’ by Mr Yabsley for a lift to the Airwing. He said that his recollection was that Mr Yabsley was going to the Airwing to travel to Cairns. He was questioned about ‘other previous times’ in the context of Mr Yabsley approaching him. Mr Gierke said he remembers giving Mr Yabsley a ‘hand to kick start his car out at the Airwing on another date.[133] He said, on the 14 May 2012 he was travelling ‘straight there and straight back’ to the Airwing.[134]
  4. [86]
    I am not satisfied that the particular in matter 1 in relation to using the prisoner escort van on 14 May 2012 is substantiated. Mr Yabsley has consistently maintained that he had approval to fly on 14 May 2012 and that he would be available to assist with prisoner escorts on the flight. The evidence of Mr Gierke demonstrates that Mr Yabsley was open (with him) about using the prisoner escort van (on 14 May 2012) because Mr Gierke said that Mr Yabsley approached him for a lift to the Airwing on 14 May 2012.
  5. [87]
    I am not satisfied that Mr Yabsley used the prisoner van on 14 May 2012 for his ‘personal benefit and gain’. Mr Yabsley’s flight booking confirmation shows that he was available for prisoner escorts and I have already made findings based on the objective evidence before me, that it was reasonable for Mr Yabsley to believe he had approval to fly. I accept that Mr Yabsley held the belief that he was performing a function because he had made himself available for prisoner escorts on the flight and because of that belief he used the prisoner escort van so he could assist with prisoners being transported and assist with unloading of prisoners. The particular in matter 1 is not substantiated.

Matter 1 – Did Mr Yabsley utilise a watchhouse officer on 30 May 2012 for his own private purposes?

  1. [88]
    Mr Yabsley accepts that an officer (Adrian Coolwell) transported him from the police Airwing carpark to the Brisbane Airport and this was while he (Mr Yabsley) was on official duty.[135]
  2. [89]
    At the oral hearing, Mr Schmidt said that Mr Coolwell was not ‘compelled’ to go with Mr Yabsley and he (Mr Coolwell) ‘volunteered’ to go and was going to be leaving work anyway. Mr Schmidt said that in terms of using Mr Coolwell if Mr Yabsley was of the view that he had authority to travel then getting out to the Airwing in order to undertake that ‘travel’ would be covered by that view as well.
  3. [90]
    Mr Coolwell, Brisbane Watchhouse officer, was positioned in the ‘team’ that was under the ‘control’ of Mr Yabsley.[136] Mr Coolwell was interviewed by the QPS as part of the disciplinary process. Mr Coolwell said that he ‘volunteered’ to drive Mr Yabsley to the airport because Mr Coolwell said he lived near the airport. Mr Coolwell said that Mr Yabsley drove his car to the Airwing and he (Mr Coolwell) picked him up from the Airwing and ‘took him around to the Domestic Airport’.[137]
  4. [91]
    Mr Coolwell said that he left with Mr Yabsley at about 12.30 and said that his shift usually changes at about 1.30 pm and ‘sometimes even earlier at one o’clock’.[138] Mr Coolwell was questioned about why he had to leave earlier (at 12.30) and not ‘[as] originally planned’ at about 1.30pm. Mr Coolwell said that Mr Yabsley had a call that his flight was going a bit earlier than what he thought.[139]
  5. [92]
    Mr Coolwell was questioned about whether it ‘concerned’ him that he was leaving his shift earlier (than planned). Mr Coolwell said, ‘Yes it did I actually asked Senior Sergeant Yabsley ah oh I questioned whether the [sic] it would be alright for us to leave as um, yeah it was, was a bit early and I was just a bit um oh hesitant to go at that time’.[140] Mr Coolwell said that Mr Yabsley told him it was ‘alright’, it had been ‘okayed’ by the other senior sergeant and said that he thinks (the other sergeant) was Senior Sergeant Taylor.[141]
  6. [93]
    I am satisfied that the particular in matter 1 relating to 30 May 2012 is substantiated. Mr Yabsley accepts that Mr Coolwell drove him to the airport to catch a commercial flight. Mr Coolwell was on rostered duty at the Brisbane Watchhouse and left his shift early to drive Mr Yabsley to the airport. Mr Coolwell said, when questioned, that it did ‘concern’ him to leave work early. Mr Yabsley has many years of experience as a police officer and was in a more senior position (to that of Mr Coolwell). Mr Yabsley had a responsibility as an experienced officer to set an example to other junior officers such as Mr Coolwell and this includes setting an example about standards in working and completing rostered shifts.
  7. [94]
    I am satisfied that Mr Yabsley’s conduct in utilising a watchhouse officer to assist him with transportation was for his own private purposes and an improper use of QPS resources because Mr Coolwell was on rostered duty. I am also satisfied that Mr Yabsley’s conduct is misconduct because his actions in utilising an officer who was on rostered duty for his own private use was improper and does not meet the standard of conduct the community reasonably expects of a police officer.

Matter 3 – Did Mr Yabsley fail to notify the Inspector and the Airwing staff about his workplace injury?

  1. [95]
    Mr Yabsley was injured in a fall at the Brisbane City Watchhouse on 30 April 2012.[142] The nature of his injury was reported by the QPS as ‘sprains and strains of joints and adjacent muscles’.[143] Mr Yabsley obtained a medical certificate from his doctor and was reported as being ‘unable to work’ from 1 May 2012 to 12 May 2012 (inclusive).[144]
  2. [96]
    Mr Yabsley flew on the Airwing on 4 May 2012, returning on 11 May 2012 during the time when he was certified (by his doctor) as being unable to work. Mr Yabsley had indicated that he was available to assist with prisoner escorts when he flew.
  3. [97]
    Although there is no evidence before the Tribunal to confirm whether Mr Yabsley did in fact escort prisoners on the flights on 4 and 11 May 2012, Mr Yabsley accepts that he had indicated he was available for prisoner escorts when he made the booking for the flights on 26 April 2012.[145]
  4. [98]
    Mr Yabsley accepted during the disciplinary interview that he had sustained an injury at work.[146]  He was questioned about whether it was his responsibility to ‘manage his own memory’ about having an injury. Mr Yabsley said, ‘Yes it’s it was an oversight um it was an oversight’.[147]
  5. [99]
    Mr Yabsley was questioned about whether it was a ‘risk to the [QPS]’ in relation to travelling when he was reported to have an injury. Mr Yabsley said ‘I guess in the circumstances if um if there was an occurrence and I sustained a further injury yes’.[148]
  6. [100]
    In the written submissions filed Mr Yabsley says that his actions in relation to matter 3 were ‘reckless as opposed to deliberate’.[149] Mr Yabsley says that the wording of the charge as it appears in matter 3 is that he (Mr Yabsley) ‘failed to notify’ the Inspector and the staff at the Airwing that he was unable to perform prisoner escort duty. Mr Yabsley says that there is no element of ‘deliberateness or dishonesty’ in the charge.[150]
  7. [101]
    I am satisfied that the allegations contained in matter 3 are substantiated because Mr Yabsley failed to notify the Inspector and the staff at the QPS Airwing that he was unable to escort prisoners because he had an injury during a time when he had indicated he was available to do so. Mr Yabsley’s actions were as described by him ‘reckless’ because he flew on the Airwing during the time he was certified as unable to work. This placed the QPS in potential risk because Mr Yabsley could have been exposed to further injury if he was utilised for prisoner escort duties on the flights. Mr Yabsley has travelled on 4 and 11 May 2012 for his own personal gain because he was not able to assist with the escorting of prisoners due to a work related injury and could therefore no longer perform the function of escorting prisoners which was the reason for travel.
  8. [102]
    Mr Yabsley is a police officer with many years experience. He accepts that by travelling on the Airwing there was a risk to the QPS and that it was his responsibility to manage his own injury and in particular being able to remember when he was certified as being unfit for work and this would include being able to manage whether he is fit to perform a police function.
  9. [103]
    I am satisfied that Mr Yabsley’s conduct in relation to matter 3 is substantiated and that the conduct is ‘misconduct’ because his actions in failing to notify his supervisor and the staff at the QPS Airwing were improper and does not meet the standard of conduct the community reasonably expects of a police officer.

Matter 4 – Was Mr Yabsley absent from duty without leave granted or reasonable excuse?

  1. [104]
    At the oral hearing Mr Schmidt (appearing for Mr Yabsley) said that Mr Yabsley accepts that he left the watchhouse early and accepts that he took an officer (Mr Coolwell) with him (on 30 May 2012). Mr Schmidt said Mr Yabsley accepts that what he did was wrong and he should have taken leave.
  2. [105]
    Mr Schmidt says that that this is not a matter of a ‘dereliction’ of duty but rather a case where Mr Yabsley’s actions were consistent with an accepted practice at the time (in the watchhouse). Mr Schmidt says there were workplace practices in place (at the time) that allowed a senior sergeant who has to leave early to allow another senior sergeant to cover the shift. Mr Schmidt refers to the evidence of Gary Keillor, Senior Sergeant and Officer in Charge of the Brisbane City Watchhouse.
  3. [106]
    Mr Keillor was questioned during the police disciplinary interview about the ‘normal procedure’ for a senior sergeant who wishes to ‘get an early mark’ for any particular reason.[151] Mr Keillor said that they (the senior sergeant) would notify the oncoming duty senior to see if they could come in and start early for them and then if there is any issues with it then ‘they will come down and see me’.[152] Mr Keillor was questioned about whether Mr Yabsley approached him (Mr Keillor) on 30 May 2012 ‘to see if he [Mr Yabsley] could go early’. Mr Keillor said ‘I haven’t had him [Mr Yabsley] come near me to ask if he could go early on a shift at all’.[153]
  4. [107]
    At the oral hearing Mr Van Grinsven (appearing for the respondent) said that matter 1 in relation to utilising Mr Coolwell to travel to the Airwing is a different matter to travelling to the Airwing as particularised in matter 4. Mr Van Grinsven says that matter 4 relates to Mr Yabsley being absent from duty and matter 1 (in relation to Mr Coolwell) is related to Mr Yabsley using Mr Coolwell for transportation that resulted in Mr Coolwell being absent from duty.
  5. [108]
    I accept Mr Van Grinsven’s submission about the particulars of the conduct in relation to matter 4. Matter 4 refers to ‘you’ (Mr Yabsley) being absent from duty ‘without leave or reasonable excuse’. The particulars of matter 4 relate to conduct on 14 May 2012 and 30 May 2012. Mr Yabsley accepts that on 14 and 30 May 2012 he was on rostered duty and left the watchhouse early. He also accepts that what he did was wrong and he should have taken leave.
  6. [109]
    Mr Yabsley has many years experience as a police officer and would be aware of the importance to remain on duty during the rostered period of time. I am satisfied that Mr Yabsley’s conduct is misconduct because his actions in being absent from duty on 14 and 30 May 2012 were improper and do not meet the standard of conduct the community reasonably expects of a police officer.

Conclusion

  1. [110]
    I have carefully considered all of the material and submissions filed in relation to the matters of misconduct. I am satisfied to the required standard that Mr Yabsley did form an honest belief that he had approval to fly from the Inspector on the basis that he make himself available for prisoner escorts. Having considered all of the objective evidence in particular the transcripts of interview, it was reasonable for Mr Yabsley to form the belief that he had approval to fly and that the Inspector was notified about the flights by reason of the booking confirmations that were emailed to him (the Inspector). Mr Yabsley said he did not know about the Inspector’s emails (received at the Watchhouse) and the Inspector said that he ‘wasn’t checking’ his emails. 
  2. [111]
    Mr Yabsley has consistently maintained throughout the police disciplinary interviews that he made himself available for prisoner escorts when he flew and he was utilised for prisoner escorts on at least two of the flights (on 16 and 23 May 2012).
  3. [112]
    Mr Yabsley has also maintained throughout the police disciplinary interviews his understating of the policy that required approval for travel on the Airwing to be given by a commissioned officer in certain circumstances only. Mr Yabsley said that the Inspector could approve the travel because he (Mr Yabsley) had made himself available for prisoner escorts.
  4. [113]
    The Inspector said that he told Mr Yabsley to put him (the Inspector) down as the authorising officer after reading the email from Mr Lynch (containing a part of the policy). Although the Inspector said in the interview that he read the email (from Mr Lynch) ‘quite quickly’ the Inspector said that he understood that the travel was ‘first come first served’.
  5. [114]
    I have carefully considered the particulars in matter 1 in the context of the number of years experience that Mr Yabsley has had as a police officer. Mr Yabsley is experienced but he had only been in the Brisbane Watchhouse for two months when he discussed the issue of travel on the Airwing with the Inspector. The objective evidence shows that Mr Yabsley made enquiries about travel on the Airwing a short time after his arrival in the Watchhouse and he (Mr Yabsley) did discuss with other QPS officers whether there were any opportunities to travel to Cairns. Mr Yabsley received information from other officers (including Mr Lynch) about travel and the requirement for approval (of travel) from a commissioned officer. Mr Keillor confirms that Mr Yabsley approached him (later on) after the orientation to discuss ‘opportunities’ to do prisoner escorts. Mr Keillor told Mr Yabsley that he did get calls from time to time and ‘they’ have to get permission from a commissioned officer to actually go on the escort and he would advise him (Mr Yabsley) if any came up (but he never had any calls).
  6. [115]
    The Inspector and other QPS officers knew that Mr Yabsley wanted to travel to Cairns to see his partner. The inference that can be drawn from the objective evidence is that the Inspector and other QPS officers knew that Mr Yabsley was travelling on the Airwing when he had made himself available for prisoner escort duties (as indicated in the booking form) and that he was also travelling to see his partner.
  7. [116]
    The Inspector knew Mr Yabsley wanted to travel to Cairns to see his partner and told him to associate himself with prisoner escort duties (for the flights on 4 and 11 May 2012). Mr Duryea said that Mr Yabsley told him he (Mr Yabsley) had a ‘lady friend’ in Cairns. Mr Duryea said that Mr Yabsley was used for prisoner escorts on some of the flights. Mr Duryea also said that Mr Yabsley queried (with him) whether it was ‘ok’ for him to take the flights. Mr Keillor said that Mr Yabsley spoke to him about opportunities to ‘do prisoner escorts’ or transports so that he could go to Cairns to spend time with his partner. Mr Keillor said that he told Mr Yabsley that he needed to get authority from a commissioned officer.
  8. [117]
    I am satisfied that matter 1 (as particularised) in relation to travelling on the Airwing is not substantiated. In relation to the particular in matter 1 on 30 May 2012, I am satisfied the allegation is substantiated. Mr Yabsley accepts that he was travelling to the Airport to catch a domestic flight for personal reasons. My Yabsley gave his assurance to Mr Coolwell who was an officer junior in ranking (to himself) that he (Mr Coolwell) could leave his rostered duty early to drive him to the Airport from the Airwing. Mr Yabsley’s conduct given his number of years of experience as a police officer was improper and he did utilise QPS resources for his own personal gain.
  9. [118]
    In relation to matters 3 and 4 I am also satisfied the conduct is substantiated and Mr Yabsley’s conduct was improper. As I have said Mr Yabsley has many years experience as a police officer. In relation to matter 3 Mr Yabsley should be familiar with the importance of notifying the QPS and necessary staff that he is unable to perform a police function in circumstances where he has been certified as medically unfit. In relation to matter 4 Mr Yabsley left his rostered duty early without leave and on 30 May 2012 he left his rostered duty early for personal reasons.
  10. [119]
    The Tribunal must now determine sanction in view of the findings made about matter 1 in relation to the particular (and conduct) on 30 May 2012 and matters 3 and 4. Mr Yabsley and the respondent should be given an opportunity to address the Tribunal further in relation to the appropriateness of the sanction to be imposed having considered the Tribunal’s findings about the conduct in matters 1 (as particularised), 3 and 4.

Footnotes

[1]Referred to as the QPS Airwing, Pilots and Staff, Standing Order No. 20, Ibid, p 403.

[2]Chronology with facts agreed or in dispute filed on 10 April 2015 in accordance with directions made on 20 March 2015.

[3]The Inspector made a complaint that Mr Yabsley inappropriately used the Airwing, see Complaint by Inspector Anthony Montgomery-Clarke dated 18 December 2012, respondent’s material filed under s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Respondent’s s 21 material).

[4]On 25 July 2014 pursuant to s 1.4 of the Police Service Administration Act 1990 (Qld) and the Police Service (Discipline) Regulations 1990 (Qld).

[5]Notice of formal finding dated 26 September 2014, respondent’s s 21 material. Matter 2 (relating to sending an email to Malcolm Lynch about travel and giving an email to the Inspector), was found to be not substantiated. For matter 1 the particular in relation to utilising the Airwing on 30 May 2012 was found to be not substantiated.

[6]Disciplinary hearing misconduct, notice of formal finding dated 26 September 2014, s 21 material.

[7]By virtue of s 219H of the Crime and Corruption Act 2001 (Qld).

[8]Directions made by consent for a chronology and the filing of documents – Code of Conduct and the ‘SELF TEST’. Final submissions and material received by the Tribunal on 10 April 2015.

[9]Outline of submissions for the applicant filed on 19 February 2015 and Respondent’s outline of submissions filed on 6 March 2015.

[10]Outline of submissions for the applicant filed on 19 February 2015, p 6.

[11]Police Service (Discipline) Regulations 1990 s 12(2).

[12]Respondent’s outline of submissions filed 6 March 2015.

[13]Crime and Corruption Act 2001 (Qld) s 219H.

[14]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.

[15]The interviews were conducted pursuant to s 4.9 of the Police Service Administration Act 1990 (under direction).

[16]Murray v Deputy Commissioner Stewart [2011] QCAT 583, at [40] and see Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, [6].

[17]Aldrich v Ross [2010] 2 Qd R 235.

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

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

[20]Ibid.

[21][2009] QSC 409.

[22]Ibid at [66].

[23]See Crime and Corruption Act 2001 (Qld), s 219BA and Schedule 2 defines ‘corruption’ as ‘police misconduct’. See also DA v Deputy Commissioner Stewart [2011] QCATA 359 at [84].

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

[25]Outline of submissions for the applicant filed 9 February 2015, [17].

[26]Ibid, [18].

[27]Respondent’s outline of submissions filed on 6 March 2015, p 11.

[28]Ibid.

[29]Ibid, p 13.

[30]Ibid, p 16.

[31]Ibid, p 5.

[32]Ibid, p 7.

[33]Ibid, p 10.

[34]Ibid.

[35]Ibid.

[36]Outline of submissions for the applicant filed 9 February 2015, [22].

[37]CTM v The Queen [2008] HCA 25, [8] and see R v Sheehan [1999] QCA 461, [44].

[38][2008] HCA 25.

[39]CTM v The Queen [2008] HCA 25, [8].

[40][2012] QCAT 165.

[41]Ibid, [31].

[42]Ibid, [32].

[43]See the material filed by the respondent decision-maker in accordance with s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (‘Respondent’s s 21 material’), p 351, line 154.

[44]Ibid, p 351, line 156.

[45]Ibid, p 351, line 159.

[46]Ibid, p 351.

[47]Ibid, p 189.

[48]Ibid, p 190.

[49]Ibid.

[50]Ibid.

[51]Ibid, p 352 line 178.

[52]Ibid, p 352, line 182.

[53]Ibid, p 352, line 188.

[54]Ibid, p 352, line 188 to p 353, line 229.

[55]Ibid, p 353, line 226.

[56]Ibid, p 369, lines 108-123.

[57]Ibid, p 369, lines 108-123.

[58]In the email dated 29 May 2012 the Inspector said that the current Superintendent SSB will need to give prior approval for flying again, see respondent’s s 21 material, p 190.

[59]Respondent’s 21 material, p 371.

[60]Ibid, p 369, lines 119-123.

[61]Ibid, p 370, line 136.

[62]Ibid, p 370, line 140.

[63]Ibid, p 370, lines 156-157.

[64]Ibid, p 370, line 158.

[65]Ibid, p 264, line 737.

[66]Ibid, p 264.

[67]Ibid, p 270, line 958.

[68]Ibid, p 265, lines 758-760.

[69]Ibid, p 265, lines 780-782.

[70]Ibid, p 231, line 384; p 234, line 492; p 266, line 803; p 268, line 869; p 274, line 1089, p 291 line 414.

[71]Ibid, p 276, line 1168.

[72]Ibid, p 266, lines 802-807.

[73]Ibid, p 266, lines 798-808.

[74]Ibid, p 267, line 845 to p 268, line 860.

[75]Ibid, p 268, line 875.

[76]Ibid, p 270, line 935.

[77]Ibid, p 270, line 962.

[78]Ibid, p 271, lines 970-973.

[79]Ibid, p 271.

[80]Ibid, p 271 line 986.

[81]Ibid.

[82]Ibid, p 272, line 1007.

[83]Ibid, p 272, line 1017.

[84]Ibid, p 272, line 1020.

[85]Ibid, p 272.

[86]Ibid, p 273.

[87]Ibid, p 274.

[88]Ibid, p 275, line 1117.

[89]Ibid, p 275, line 1123.

[90]Ibid, p 288.

[91]Ibid, p 291.

[92]Ibid, p 292, line 439.

[93]Ibid, p 295, line 543.

[94]Ibid, p 303.

[95]Ibid.

[96]Ibid, p 339, line 32.

[97]Ibid, p 340, line 54.

[98]Ibid, p 339, line 34.

[99]Ibid, p 340, line 52. ‘SELF TEST’ means ‘consider would your decision withstand scrutiny, will your decision ensure compliance, is your decision lawful, is your decision fair?’. See material filed by the respondent on 10 April 2014.

[100]Ibid, p 340, line 54.

[101]Section 21 material, p 228, line 304.

[102]Ibid, p 230, lines 345-354.

[103]Ibid, p 230, line 372.

[104]Ibid, p 231, lines 382-385.

[105]Ibid, p 298, line 655.

[106]Ibid, p 403.

[107]Ibid, p 378, line 131.

[108]Ibid, p 378, line 125.

[109]Ibid, p 378, lines 125-140.

[110]Ibid, p 391.

[111]Ibid, p 400.

[112]Ibid, p 400, line 216.

[113]Ibid, p 400, lines 215-224.

[114]Ibid, pp 401-402.

[115]Ibid, p 402, line 279.

[116]Ibid, p 402, line 293.

[117]Ibid, p 408.

[118]Ibid, p 409, line 117.

[119]Ibid, p 410.

[120]Ibid.

[121]Ibid, p 479, line 269 and p 480, line 272.

[122]Ibid, p 480, line 282.

[123]Ibid, p 489, line 186.

[124]Ibid, p 193.

[125]Ibid, pp 191 to 211.

[126]Chronology with facts agreed or in dispute filed on 10 April 2015. See respondent’s s 21 material, p 329, line 512 to p 330, line 542.

[127]Respondent’s s 21 material, p 193.

[128]Ibid, 16.

[129]Ibid.

[130]Ibid p 446, line 35.

[131]Ibid, p 446, line 36.

[132]Ibid, p 446.

[133]Ibid p 447, line 79.

[134]Ibid, p 448, line 97.

[135]Chronology with facts agreed or in dispute filed on 10 April 2015.

[136]Respondent’s s 21 material, p 468 line 78.

[137]Ibid, line 124.

[138]Ibid, p 470, line 130.

[139]Ibid, p 470, line 141.

[140]Ibid, p 470, lines 146 -149.

[141]Ibid, p 470, line 153.

[142]Chronology with facts agreed or in dispute filed on 10 April 2015.

[143]Respondent’s s 21 material, p 216.

[144]Ibid. See p 259.

[145]Chronology with facts agreed or in dispute filed on 10 April 2015.

[146]Respondent’s s 21 material, p 258 line 527.

[147]Ibid, p 262, line 659.

[148]Ibid, p 262, line 662.

[149]Outline of submissions for the applicant filed on 19 February 2015, [28], see respondent’s s 21 material, p 262.

[150]Outline of submissions for the applicant filed on 19 February 2015, [28].

[151]Respondent’s s 21 material, p 381 line 246.

[152]Ibid, p 381.

[153]Ibid, p 381 line 255.

Close

Editorial Notes

  • Published Case Name:

    Yabsley v Acting Assistant Commissioner Michael Keating

  • Shortened Case Name:

    Yabsley v Acting Assistant Commissioner Michael Keating

  • MNC:

    [2015] QCAT 258

  • Court:

    QCAT

  • Judge(s):

    Acting Senior Member Browne

  • Date:

    01 Jul 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
2 citations
Jump To
Cite 1 - [2010] QCAT 384
Cite 2 - [2010] QCAT 384
Crime & Misconduct Commission v Assistant Commissioner J P Swindells [2009] QSC 409
3 citations
Jump To
Cite 1 - [2009] QSC 409
Cite 2 - [2009] QSC 409
Cite 3 - [2009] QSC 409
CTM v The Queen [2008] HCA 25
4 citations
Jump To
Cite 1 - [2008] HCA 25
Cite 2 - [2008] HCA 25
Cite 3 - [2008] HCA 25
Cite 4 - [2008] HCA 25
DA v Deputy Commissioner Stewart [2011] QCATA 359
2 citations
Jump To
Cite 1 - [2011] QCATA 359
Cite 2 - [2011] QCATA 359
Lauren Kay Cordes v Dr Peter Ironside Pty Ltd[2010] 2 Qd R 235; [2009] QCA 302
2 citations
Jump To
Cite 1 - [2010] 2 Qd R 235
Cite 2 - [2010] 2 Qd R 235
Murray v Deputy Commissioner Stewart [2011] QCAT 583
3 citations
Jump To
Cite 1 - [2011] QCAT 583
Cite 2 - [2011] QCAT 583
Cite 3 - [2011] QCAT 583
O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148
1 citation
Jump To
Cite 1 - [2014] QCATA 148
The Queen v Sheehan[2001] 1 Qd R 198; [1999] QCA 461
2 citations
Jump To
Cite 1 - [1999] QCA 461
Cite 2 - [1999] QCA 461
Watson v Acting Deputy Commissioner McCallum [2012] QCAT 165
4 citations
Jump To
Cite 1 - [2012] QCAT 165
Cite 2 - [2012] QCAT 165
Cite 3 - [2012] QCAT 165
Cite 4 - [2012] QCAT 165

Cases Citing

Case NameFull CitationFrequency
Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 3212 citations
Scott v Assistant Commissioner Martin [2015] QCAT 4231 citation
Yabsley v Acting Assistant Commissioner Keating (No 2) [2015] QCAT 35911 citations
1

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