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Newman v Assistant Commissioner Condon[2016] QCAT 153

Newman v Assistant Commissioner Condon[2016] QCAT 153

CITATION:

Newman v Assistant Commissioner Condon [2016] QCAT 153

PARTIES:

Mr Nikolas Newman

(Applicant)

 

v

 

Assistant Commissioner Mike Condon

(Respondent)

APPLICATION NUMBER:

OCR040-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

13 November 2015

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

19 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. A disciplinary finding is substantiated as a breach of discipline, in relation to Matter 1(a) as to the Burton and O'Brien allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
  2. A disciplinary finding is not substantiated in relation to Matter 1(a) as to the Burke and Tibbett allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
  3. A disciplinary finding is not substantiated in relation to Matter 1(f) that Mr Newman knowingly provided false information to a senior officer conducting a disciplinary investigation.

CATCHWORDS:

POLICE DISCIPLINARY – where a police officer sought review of disciplinary findings – whether allegations as failing to treat members with respect and dignity were substantiated - whether an allegation as to providing false information to a senior officer conducting a disciplinary investigation was substantiated – whether the Tribunal was reasonably satisfied as to substantiation

Police Service Administration Act 1990 (Qld), s 1.4

Police Service (Discipline) Regulations 1990 (Qld), s 9(1)(f)

Crime and Corruption Act 2001 (Qld), S 219H

2012/33 Standard of Practice for the Queensland Police Service – Professional Conduct

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

Briginshaw v Briginshaw (1938) 60 CLR 336

McIntosh v Webster & Anor [1980] 30 ACTR 19

Orme v Atkinson Misconduct Tribunal, 17 September 1999

Shauer v Banham CJC Appeal No.11 of 1996

Tolsher v Assistant Commissioner Hollands [2015] QCAT 391

APPEARANCES:

APPLICANT:

Mr S Zillman of Counsel, instructed by Gilshenan and Luton

RESPONDENT:

Mr J Merrell of Counsel, instructed by the Public Safety Business Agency

REASONS FOR DECISION

  1. [1]
    Assistant Commissioner Mike Condon, Assistant Commissioner of Police, Central Region, Queensland Police Service, made a disciplinary decision in the form of a Notice of Formal Finding of Misconduct, on 6 March 2015 as to a serving officer, Senior Constable Nikolas Newman, who was attached to the Mackay Police Station at the relevant times.
  2. [2]
    Mr Newman filed an application to review the decision in the Tribunal on 20 March 2015.
  3. [3]
    The application was heard on 13 November 2015.
  4. [4]
    The decision found substantiation as to Matters 1(a), 1(b), 1(c), 1(e) and 1(f).
  5. [5]
    At the outset of the hearing I was advised by Counsel for Mr Newman that Matters 1(b), 1(c) and 1(e) were accepted to proceed to sanction; and that items 1(a) and 1(f) were challenged as to substantiation.
  6. [6]
    After discussion with Counsel, it was agreed that I would hear submissions as to Matters 1(a) and 1(f) and make a decision as to substantiation as to those two Matters; and that then on a continuation of the hearing on a further day, I will deal with sanction as to the three matters that are accepted for substantiation, together with any of the disputed Matters that I find substantiated.
  7. [7]
    This is the decision as to substantiation as to matters 1(a) and 1(f).
  8. [8]
    The decision as to Matters 1(a) and 1(f), as amended, was as follows:

That between the 25th day of February 2010 and the 28th day of December 2013 at Mackay and Gladstone your conduct as a senior officer was improper in that you:

  1. (a)
    As a shift supervisor failed to treat members with respect and dignity;
  1. (f)
    Knowingly provided false information to a senior officer conducting a disciplinary investigation.
  1. [9]
    The Matters were brought pursuant to Section 1.4 of the Police Service Administration Act 1990 (Qld) (‘PSSA’) and section 9(1)(f) of the Police Service (Discipline) Regulations 1990 (Qld).
  2. [10]
    Further and better particulars were provided as to Matter 1(a) which alleged 12 instances of alleged failures to treat QPS members with respect and dignity. The decision found that four of those particulars amounted to misconduct. Those particulars were as follows:
    1. (a)
      On 29 June 2010 you attended the Mackay Police Station, Senior Sergeants office area where you stood over the station roster clerk, former AO2 Ms Cecilia Burton and spoke to her in a loud, abusive, humiliating and intimidating manner (the ‘Burton Allegation’).
    2. (b)
      On 10 September 2011 at Bakers Creek you spoke with Civilian Radio Operator Maree Burke on the telephone in relation to a radio request whereby you raised your voice and spoke over the top of Ms Burke in an aggressive manner (the ‘Burke Allegation’).
    3. (c)
      On 16 November 2012 you spoke to Acting Sergeant Camellia Tibbett in an abrupt and rude manner whilst she was performing duty to the Mackay District Communication Coordinator (the ‘Tibbett Allegation’).
    4. (d)
      On 26 October 2012 at the Mackay Police Station inquiries office you humiliated Acting Sergeant Megan O'Brien when you spoke to her in an aggressive and condescending tone regarding a roster issue in front of a First Year Constable (the O'Brien Allegation).
  3. [11]
    Further and better particulars of Matter 1(f) were provided as follows:
    1. (a)
      On 1 May 2013 you were a Senior Sergeant, District Duty Officer at Mackay District.
    2. (b)
      Detective Inspector Andrew Massingham of the Ethical Standard command Internal Investigation Group had been allocated a disciplinary investigation relating to several matters, one involved your connection with the arrest of Kaleb King on 13 December 2010.
    3. (c)
      On 01 May 2013 at Mackay District Office you participated in a directed discipline interview with Detective Inspector Massingham about the matters under investigation. During the interview you stated:
      1. ‘I did personally. Knocked on the door a number of times’.
      2. ‘The ah place was in darkness and I later found out that the owner wasn’t there, had gone away on holidays’.
      3. ‘Knocked on the door loudly waiting for the Duty Sergeant to arrive to breath-test me, no-one came to the door, the place was in complete darkness, walked around the back there was nobody in that house’.
      4. ‘Um we knocked and knocked and knocked that night so that we could get a statement that was part of the reason why we wanted to speak to them, one to notify that the fence had been pushed over and two to get a statement’.
  4. [12]
    The Decision found that Mr Newman’s conduct as to the substantiated Matters in 1(a) and 1(f) amounted to misconduct.
  5. [13]
    The review is a fresh hearing on the merits to produce the correct and preferable decision.[1] In a proceeding of this type, the review decision is made on the evidence that was before the decision-maker.[2]
  6. [14]
    In a disciplinary hearing the Tribunal will have regard to the Briginshaw[3] standard as to whether the allegation is made out to the reasonable satisfaction of the Tribunal.
  7. [15]
    I will consider each of the Matters in turn. The Burton and Burke allegations have similarities, as they relate to workplace conversations, so I will discuss those first; the O'Brien and Tibbett allegations have similarities as they deal with conversations in the pursuit of duty, so I shall then discuss those; and then discuss the false information matter.

Relevant provisions

  1. [16]
    Section 7.4 of the PSAA provides:

(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.

  1. [17]
    Breach of discipline is defined in section 1.4 PSAA as:

breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct.

  1. [18]
    Misconduct is defined in Section 1.4 PSAA as:

misconduct means conduct that—

(a) is disgraceful, improper or unbecoming an officer; or

(b) shows 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.

  1. [19]
    Officers are given directions by the Commissioner to comply with the terms of the 2012/33 Standard of Practice for the Queensland Police Service – Professional Conduct. Clause 12 provides:

In the course of their duties, and in particular when exercising discretionary powers, members are to:

  1. (a)
    treat all persons with respect and dignity and in a reasonable, equitable and fair manner
  2. (b)
    not intimidate, engage in sexual or other forms of harassment, unlawfully discriminate or otherwise abuse any person

The Burton Allegation

  1. [20]
    Cecilia Burton was an employee of the Queensland Police Service. The allegation relates to an incident that occurred on Tuesday 29 June 2010 at 8 am at the Mackay police station.
  2. [21]
    A record of interview was conducted with Ms Burton by Detective Massingham of the Ethical Standards Command on 13 July 2015. A transcript of the interview forms part of the evidence considered by the decision maker.[4]
  3. [22]
    Ms Burton said that she had nothing to do with Mr Newman before she was at the rosters section. She said she had seen him around, but never had to deal with him, and she just had one dealing she described as ‘that big one’.[5]
  4. [23]
    She said that she was in the open office area, that Karen Steindl, another administrative officer was at a different desk, and Dave Parnell was in his office. She said that Mr Newman came into the office and then described what occurred as follows:[6]

Burton: And he said to me um, oh can I – you know I want to have a look at the – he says I want – I want a copy of the current roster.

Massingham: Mhmm

Burton: And I said um, I said there’s one downstairs because we keep one downstairs and (ui) he said no, no the one up here and I said why? I said is there, you now, something wrong, did I do something wrong? And he goes um, yes, I need to see it and I said come, all right, I said I’ve only just come in, come and sit down and we’ll have a chat, we’ll look at it together and then you know, you can point out what I’ve done wrong, whatever.

Massingham: Mhmm

Burton: And then he started um started going off, you know, that um, that I – I had put on the roster requested days off and I’ll give you the dates – the 7th and the 8th of July.

Massingham: Mhmm

Burton: That I had written requested days off.

Massingham: Yes

Burton: And that he had no idea, he didn’t ask for those requested days off and blah, blah and then he, he just went off

Massingham: Yep

Burton: You know he was just ranting and yelling like a, like, like a maniac

Massingham: Ok

Burton: And I just sat there because I thought well what do I do? I’ll just let him rant.

Massingham: Yes

Burton: Um and I was sitting down because he did not sit down with me, so I sat down and he was just towering over me, on top of me, yelling at me, you know?

Massingham: Yes

Burton: That you know all the juniors in his ah team are you know are questioning him, why he has requested days off and blah, blah, and what do you think this looks like and you and all that sort of stuff and I was like, oh God I don’t even know where you’re coming from (laughs)

Massingham: Yes, ah yes

Burton: Anyway, so he, he was just, he was just so, you know he was just angry, really, really, really, extremely angry and really pissed off

  1. [24]
    Ms Burton described the experience as ‘just scary’. She didn’t think that Mr Newman actually swore at her but that he was ‘out of his head’ and was yelling. She described what happened next as:[7]

Burton: And I thought whatever and then, then he says, he goes, you know that I’m not a popular man around here, you should take extra care when you’re doing the rosters, whatever.

Massingham: OK

Burton: And that’s when I started, and then all of a sudden he just walks off

Massingham: Right

Burton: After he has his little rant, he turns around and takes off

  1. [25]
    Ms Burton said that Mr Parnell then came out of his office, she assumed to intervene, but that it was too late because Mr Newman had already gone.
  2. [26]
    Senior Sergeant Parnell was interviewed on 20 July 2013 about the incident by Mr Massingham. He said that he heard a raised voice but that by the time he got up and came out of his office that Mr Newman was leaving the room. He described the incident:[8]

DP: It was a fairly short conversation period if you know what I mean

AM: Okay can you recall anything that was said

DP: No, I can’t I just remember, there was no swearing, there was no abuse as such, but as with Nick it’s probably his tone and his manner of how he goes about the business that causes, can cause issues

AM: Ok

DP: Or can cause people to believe that he is being more aggressive, or he’s being you know, intimidating towards them

AM: Okay

DP: And I, after that incident, Cecilia appeared upset so I got her into the office and talked to her about it and asked her you know if she’s okay etc and did she, did she want me to do anything about it and she said at that time no and that, and I said well, look I’m going to talk to Nick anyway about it so and I can’t recall if I, I’ve got notes I took in my diary at the time, and I’d have to have a read, I can’t recall off hand whether I spoke to him that day or the next day or later on but I did remember talking to him and then I referred the matter further and up the chain to the Inspector.

AM: Yeah okay. So that was at your instigation to the Inspector that it went up the chain

DP: Yes it was

AM: Okay thank you

DP: Just more of a heads up that we had an issue and just letting you know that I’ve basically as far as I was concerned I’ve dealt with it, I’ve spoken to Cecilia about it she was, she was I’d say she was fairly upset about it like towards the end

AM: Mmmm

DP: But um, from what I heard I suppose everyone has a different perception or a different ability or how they perceive someone talking to them and I didn’t think it was that excessive. (UI) he raised his voice but then again I’m used to it I suppose working with you know grubs on the street and that, people always raising their voices and talking in a particular way whereas she might not have been subject to that too much because of her exposure during the workplace so that’s why I spoke to her about it and said look I can talk to him and try and resolve it but if you’re not happy with that sort of solution, she was happy at that stage to have me take the matter on board and speak to Nick about it which I did and I’d have to check to see whether I did but I’m pretty sure I came back to her after I spoke to Cecilia, sorry after I spoke to Nick I came back to Cecilia and let her know the outcomes.

  1. [27]
    Ms Steindl was interviewed by Mr Massingham on 30 July 2013. She recalled:[9]

DI Massingham: Can you tell me what you can recall from that day, and I appreciate it’s 3 years ago

Steindl: Um by the time I realised what was going on, he was, if I remember correct, I don’t know what it, I can’t remember what it was about, I think he finished at 6am because I remember thinking that he had stayed back for a couple of hours to come up and have a go at Sissie. I can’t remember what it was about, but she was sitting there and he was right there, and right going right off whatever, I can’t remember what it was about but he was going right off and she never got a chance to say too much or respond and then after he left I had said to Cecilia that she should have stood up so that she was more face to face so that he wasn’t over her.

DI Massingham: Yep okay. How would you describe his demeanour on this occasion?

Steindl: Rude and arrogant

DI Massingham: Hmm hmm

Steindl: Dominating

  1. [28]
    Counsel for Mr Newman submits[10] that the Burton allegation should be substantiated as a breach of discipline only, not as misconduct.
  2. [29]
    He refers to the comments of Presiding Member Forbes in Shauer v Banham:[11]

Regulation 9 of the Police Service (Discipline) Regulations recognises that breaches of discipline often fall short of ‘misconduct’; while all misconduct is a breach of discipline not every breach of discipline is misconduct. Misconduct is merely one of seven grounds of disciplinary action and on a generally ascending scale if comes just below the stigma of a “conviction..of an indictable offence’. The more serious the charge the more careful the tribunal must be before it finds itself satisfied that the person charged is guilty.

The legislature cannot have intended any and every breach of discipline to be classifiable as ‘disgraceful’ or ‘showing unfitness to be an officer’ or even below ‘the standard of conduct (which) the community reasonably expects of a police officer.

  1. [30]
    And:[12]

Reasonable members of the community do not regard police officers as professionally unfit or sub-standard just because they fail to obey every jot and tittle of departmental instructions. Reasonable people may say; ‘He could have done better there’ or ‘that was a bit risky” without implying the stigma of ‘misconduct’ which is a perjorative charge to be used with due discrimination.

  1. [31]
    He also refers to the comments of the Misconduct Tribunal in Orme v Atkinson[13] that for conduct to amount to misconduct rather than a breach of discipline:

There needs to be some nexus or some factor which raises the conduct to another level or ‘puts it over the line’ so far as the reasonable expectation of the public are concerned.

  1. [32]
    He submits that these principles were recently confirmed by the Tribunal in Tolsher v Assistant Commissioner Hollands.[14]
  2. [33]
    He submits that reasonable members of the public would not consider the conversations and/or conduct of Mr Newman was such as to be categorised as misconduct.
  3. [34]
    Counsel for the Assistant Commissioner submits[15] that based upon the evidence before the Assistant Commissioner that the Assistant Commissioner was correct to conclude that Mr Newman had engaged in misconduct because he contravened clause 12 of the Standard of Practice.
  4. [35]
    He submits that:

63. On the evidence, it was (Mr Newman) who started the talking to Ms Burton in a very aggressive and condescending tone. There was no need for (Mr Neman), as a Senior Sergeant, to engage in such behaviour regarding a roster issue. A member of the public would expect that a Senior Sergeant of the Service would not conduct him or herself towards a non-sworn staff member in the manner (Mr Newman) did.

64. The Standard of Practice does not require any of the conduct of (Mr Newman), as referred to above, to be present for conduct to be misconduct. The material consideration is whether (Mr Newman) failed to treat Ms Burton with respect and dignity.

65. On the evidence, (Mr Newman) failed to treat Ms Burton with respect and dignity as required by clause 12 (a) of the Standard of Practice. (Mr Newman) engaged in misconduct because he contravened clause 12 of the Standard of Practice.

  1. [36]
    It is clear that Mr Newman spoke to Ms Burton in an aggressive and forceful manner. She had just started work for the morning, and was taken by surprise by the intensity and purpose of the comments made by Mr Newman.
  2. [37]
    Ms Burton had not had previous dealings with Mr Newman, and did not have a working relationship with him.
  3. [38]
    Mr Newman had finished a night shift at 6am that morning. He had then apparently waited until Ms Burton started work at 8 am to talk to her about the roster. It seems that he had been allocated days off which he had not requested, and which showed in the roster, and that he felt that this was diminishing him in the eyes of his juniors who queried why he was taking days off.
  4. [39]
    The situation then emerges of Mr Newman who was presumably tired after a night shift, and was upset at what he saw as unrequested interference with his roster, waiting for two hours in a presumably agitated state to speak to Ms Burton. She was unaware of the issue and was taken aback, and was upset by the vehemence and nature of the inquisition of her by Mr Newman.
  5. [40]
    Mr Parnell clearly thought that the behaviour was deserving of questioning at the time, and he did speak with Ms Burton about it and take note of the incident and report it. He did not see Mr Newman’s behaviour as being ‘that excessive’ and considered that the matter had been adequately dealt with having regard to the nature of it.
  6. [41]
    Ms Steindl described Mr Newman’s behaviour as rude and arrogant, and dominating.
  7. [42]
    Mr Newman clearly spoke to Ms Burton in an inappropriate and vehement manner which understandably surprised and upset her. He felt that his personal reputation had been slighted, was tired after a shift, and forcefully interrogated Ms Burton as to what had occurred. The conduct of Mr Newman was ill-considered and not appropriately restrained.
  8. [43]
    Whilst Mr Newman’s conduct as to Ms Burton was inappropriate, the event was a short exchange without any offensive language, or any physical contact, and of limited scope.
  9. [44]
    Members of the public would reasonably see Mr Newman’s actions towards Ms Burton as being improper in the workplace of the Police Station, or in any workplace. I accept that Mr Newman failed to treat Ms Burton with an appropriate level of courtesy and restraint, and with a degree of lack of due respect and dignity.
  10. [45]
    By treating Ms Burton with a degree of lack of respect and dignity, Mr Newman has breached Clause 12(a) of the Standard of Practice.
  11. [46]
    Breaching the provisions of Clause 12(a) of the Standard of Practice does not necessarily constitute misconduct. Not every breach of the Standard of Practice will necessarily translate into misconduct. There must be a consideration of the severity of the treatment and the circumstances in each case.
  12. [47]
    A breach of discipline arises where there is a breach of a direction of the commissioner, which is not misconduct. The Standard of Practice is a direction of the Commissioner.
  13. [48]
    The treatment of Ms Burton by Mr Newman was not severe or ongoing, and was limited in nature. Whilst the treatment involved a degree of lack of respect and dignity, it was to a limited degree.
  14. [49]
    I am not satisfied that the actions of Mr Newman in treating Ms Burton with a degree of lack of respect and dignity, ‘cross the line’ in terms of his behaviour as a Police Officer, and do not lead to them being seen as ‘disgraceful’ or ‘showing unfitness to be an officer’, or even below ‘the standard of conduct (which) the community reasonably expects of a police officer’, as referred to in the comments in Shauer v Banham, so as to constitute misconduct.
  15. [50]
    As the breach of the Standard of Practice in this instance is not misconduct, it constitutes a breach of discipline.
  16. [51]
    I am therefore satisfied that this allegation is substantiated as a breach of discipline.

The O'Brien allegation

  1. [52]
    Ms Megan O'Brien was a Sergeant attached to the Mackay Police station. The allegation relates to an incident that occurred on Friday 26 October 2012 at 8 am at the Mackay police station.
  2. [53]
    A record of a conversation between Ms O'Brien and Acting Inspector O'Connell was recorded on 30 October 2012. A transcript of the conversation forms part of the evidence considered by the decision maker.[16]
  3. [54]
    Ms O'Brien said that she had been having a discussion with Constable Andre Stevens in the inquiries office which is open to the general duties area when Mr Newman interjected:[17]

Then behind Andre is the filing cabinets that lead to the trays that go out to the general duties area and then out of nowhere, Senior Sergeant Newman was standing at the filing cabinet and he had his hand on his hip and he had his hand on the filing cabinet. Then in a really stern, abrupt voice, like I didn’t even know he was there, he turned around and he said, well that would be incorrect Megan, like, I didn’t even see him or anything. So I turned around and I went, I beg your pardon?

  1. [55]
    She said that Mr Newman then made comments about the roster, and what then ensued was:[18]

So then what happened was, he then said to me, something about – I can’t remember if he said that then he had to deal with it or something because I said that. Like at no time, no time whatsoever, did I tell Andre who was in charge of that afternoon shift and no matter how hard I tried, he would not let me explain myself. So then I thought, well guess what, just a waste of time me even trying to speak to you, because he never wants to listen to what you have to say. So then what I thought was, guess what, I’m not working and I don’t need to be spoken to like a two year old.

So I turned back around to the computer and then he goes, Megan, he goes, I don’t like to air it in public, but you’re obviously – I can’t remember if he said my behaviour or my attitude was intimidating Andre, was making Andre upset. Like I didn’t raise my voice, I didn’t over – like I didn’t talk over the top of him, I didn’t do anything and then I looked at Andre and then I just thought to myself, I can’t believe I’m being exposed to this behaviour. Like there is no way, like first of all, he was even invited in the conversation and second of all, it had absolutely nothing to do with him.

So then I turned back to the computer and then he goes, Megan. I thought I’m not going to say anything, because I didn’t want to get into trouble because like, just makes me so angry because he’s so overpowering, like he just – it’s his way or nobody’s way, it’s as simple as that. So then what I did was, I didn’t turn around. So then he called my name louder and I still didn’t turn around, so then he just screamed my name out and obviously I turned around because like I didn’t know where it was going to go from there. So then I turned around and I can’t remember if I said, what, first but then I went, look I’m sorry I didn’t look at the roster and as soon as I said that, he just stopped. It was like he was just going to keep on pushing me until I apologised for not doing what he thought I should have done.

  1. [56]
    Constable Andre Stevens was interviewed by Detective Sergeant Mann about the incident on 30 July 2013. He recalled as to Mr Newman’s behaviour:[19]

CAS: ..Um, I can’t recall his direct action, what he said explicitly but (UI) took note that it was up to him to delegate who was going to be shift supervisor for that day

AM: Right

CAS: So he did it in a direct manner but it wasn’t overly confrontational

AM: Okay

CAS: And then I wouldn’t call it an argument but I see it as a firm almost a standoff between Senior Sergeant Newman and Senior Constable O'Brien

AM: Yep

CAS: Um I was pretty much caught in the middle of, um, I can’t remember exact wording or so forth but just in overall tone I guess was, I wouldn’t say aggressive that’s probably the wrong word for it, it was very direct on senior’s part

  1. [57]
    Constable Stevens said that there were raised voices by both parties, not overly raised, but they could be heard in the rest of the day room.[20] He was asked what brought the confrontation about, and replied:[21]

CAS: I guess it’s a combination of, that’s communication, um I’m not sure how much of the conversation SS Newman heard ah and then obviously I put it down to obviously that it was directness and maybe he overjumped the gun on that particular occasion in term of being very direct, very quickly without gathering the entire context of the conversation.

  1. [58]
    Counsel for Mr Newman submits that similar considerations apply as to the Burton allegations and that this allegation should be substantiated as a breach of discipline only.
  2. [59]
    He submits that[22]like anyone, police officers can properly expect to have a “bad day”, or involve themselves in some poor communication with other staff, without being tarnished with the stigma of a misconduct charge’ and that reasonable members of the public would not consider the conversations and/or conduct of Mr Newman was such as to be categorised as misconduct.
  3. [60]
    Counsel for the Assistant Commissioner submits that the material consideration is whether Mr Newman failed to treat Acting Sergeant O'Brien with respect and dignity.[23] He submits:

102. On the evidence, it was (Mr Newman) who started talking to Acting Sergeant O'Brien in a very aggressive and condescending tone. There was no need for (Mr Newman), as a Senior Sergeant, to engage in such behaviour towards another officer regarding a roster issue. A member of the public would expect that a Senior Sergeant of the Service would not conduct him or herself towards another officer in the manner (Mr Newman) did.

  1. [61]
    There was clearly a robust conversation between Mr Newman and Ms O'Brien at the time, which can be properly described as a confrontation.
  2. [62]
    Constable Stevens saw it as almost a standoff between the two parties.
  3. [63]
    Ms O'Brien took offence at the manner in which Mr Newman addressed her, and felt that she was being spoken to as if she were a ‘two year old’.
  4. [64]
    I am satisfied that the manner in which Mr Newman addressed and spoke to Ms O'Brien about the rostering issue was not properly restrained, and did not reflect a proper attitude by him to a discussion on a service related matter between two professional officers.
  5. [65]
    The incident was in the nature of a heated exchange between two professional officers, each of whom was standing their ground, and standing up to the other person whose conduct they saw as inappropriate, but in the course of the exchange, Mr Newman treated Ms O'Brien with a degree of lack of respect and dignity.
  6. [66]
    By treating Ms O'Brien with a degree of lack of respect and dignity, Mr Newman has breached Clause 12(a) of the Standard of Practice.
  7. [67]
    Breaching the provisions of Clause 12(a) of the Standard of Practice does not necessarily constitute misconduct. Not every breach of the Standard of Practice will necessarily translate into misconduct. There must be a consideration of the severity of the treatment and the circumstances in each case.
  8. [68]
    A breach of discipline arises where there is a breach of a direction of the commissioner, which is not misconduct. The Standard of Practice is a direction of the Commissioner.
  9. [69]
    The treatment of Ms O'Brien by Mr Newman was in the context of their confrontation as to rostering issues, and was limited in its scope and consequences. Whilst the treatment involved a degree of lack of respect and dignity, it was to a limited degree.
  10. [70]
    I am not satisfied that the actions of Mr Newman in treating Ms O'Brien with a degree of lack of respect and dignity, ‘cross the line’ in terms of his behaviour as a Police Officer, and do not lead to them being seen as ‘disgraceful’ or ‘showing unfitness to be an officer’, or even below ‘the standard of conduct (which) the community reasonably expects of a police officer’, as referred to in the comments in Shauer v Banham, so as to constitute misconduct.
  11. [71]
    As the breach of the Standard of Practice in this instance is not misconduct, it constitutes a breach of discipline.
  12. [72]
    I am therefore satisfied that this allegation is substantiated as a breach of discipline.

The Burke allegation

  1. [73]
    Ms Marie Burke worked for the Queensland Police Service as a Communications Operator attached to the Mackay Police Station. The allegation relates to an incident that occurred on 10 September 2011.
  2. [74]
    Mr Newman had attended a scene involving a suspected spinal injury to a child at a sporting event. Ms Burke contacted the Queensland Ambulance Service and informed Mr Newman that the ambulance service were setting their priorities, that the boy’s life might have been serious but it was not in danger, so the ambulance service were prioritising their jobs and were proceeding lights and sirens, but that they could not give an estimated time of arrival. Mr Newman asked Ms Burke to call the ambulance service again. Ms Burke advised that the ambulance service were talking with a person at the scene and the ambulance service was happy with the conversation taking place. Mr Newman then asked Ms Burke to call him on the telephone.
  3. [75]
    The allegation arises in relation to the subsequent phone call. The Assistant Commissioner found that Mr Newman raised his voice and spoke over the top of Ms Burke in an aggressive manner.
  4. [76]
    The conversation was recorded. The conversation was relatively short, and it is convenient to set the transcript out in full:[24]

Newman: Who was speaking on the radio before

Burke: Me

Newman: Didn’t appreciate the comments anyway

Newman: Anyway the person is here holding the young fellas head and was talking to the ambos saying it was serious spinal so I don’t know what they are telling you guys but that’s the reason I ask for immediate assistance

Burke: yeah

Newman: Are they coming lights and sirens now?

Burke: I have told them and they did say…

Newman: yeah OK I’m just saying I didn’t appreciate the comment on the radio before, that goes all out over the…

Burke: Alright Nick if you have a problem with me you take it.. fine you take it up with her…

Newman: I want Comco put her on please

Burke: No, hang on the DDO would like to speak to you

Newman: Thank you

Sweetnam: Nick

Newman: Whose that

Sweetnam: Mark Sweetnam

Newman: Senior Nik Newman here – I’m just expressing my dislike at the way I was spoken to over a District Wide radio communication by a CRO, so if there’s an issue I want to take it up with the Comco

Sweetnam: If you’ve got an issue with the staff in here you take it up with their OIC mate…I was standing here listening and she was not rude to you at all

Newman: Oh for god’s sakes it is anti Nick Newman year is it??? Is that what we’re talking about

Sweetnam: No mate don’t be so paranoid

Newman:..co-ordinate here.. if you want to speak to me speak to me later

  1. [77]
    A record of interview was conducted between Ms Burke and Detective Inspector Massingham on 31 July 2013. A transcript of the conversation forms part of the evidence considered by the decision maker.[25]
  2. [78]
    Ms Burke said that Mr Newman’s tone was aggressive, and that she raised her voice:

MB: There may have been some conversation prior to that on the radio

AM: Okay, on the radio, okay. How was his tone when he spoke to you

MB: Aggressive

AM: Okay. Raised voice at all

MB: I know mine was

AM: Mmmm when he made the allegation

MB: Yes

  1. [79]
    Counsel for Mr Newman submits that the approach from Connor J in McIntosh v Webster & Anor[26] is appropriate in this matter, and that it would be unfair to make minute retrospective criticisms of Mr Newman’s conduct in the circumstances.[27] He submits that no disciplinary action should be taken against Mr Newman for this matter, or that in the alternative, the matter should have been substantiated as a breach of discipline only.
  2. [80]
    Connor J commented that:[28]

I do not think it would be appropriate for a court to approach an issue such as this .. without taking into consideration the circumstances in which the constable in question made the arrest. Arrests are frequently made in circumstances of excitement, turmoil and panic. I think it would be altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticism of what an arresting constable might or might not have done or believed in the circumstances. For myself I am disposed to take a broad and somewhat sympathetic attitude towards members of the police force who are called upon in critical situations to preserve public order.

  1. [81]
    Counsel for the Assistant Commissioner submits[29] that the comments of Connor J should not apply, as this allegation does not concern a critical situation to preserve public order.
  2. [82]
    He submits that the relevant consideration is whether Mr Newman failed to treat Ms Burke with respect and dignity when she was passing on relevant information from the ambulance service, and contravened Clause 12 of the Standard of Practice.
  3. [83]
    This incident occurred in the context of Mr Newman being on duty at the scene of a distressing injury. He was clearly anxious for the well-being of the boy. The nature of the injury, being a suspected serious spinal injury, is relevant, as the consequences may have been devastating for the future of the boy, and any movement before the ambulance service arrived may have been very detrimental. The scene itself would have been testing, being a public sporting match with presumably large numbers of the boy’s team members, friends and family all concerned about his immediate welfare, and wanting a speedy response and immediate attention.
  4. [84]
    Mr Newman would have been in a situation of significant stress. Whilst it may not have been of the level of a ‘critical situation’ in that the situation was under control, and the boy was stable and medical advice was being obtained, it was still a situation of considerable intensity. Mr Newman had to manage not only the situation of the boy, but also to control the crowd and keep the situation under control for the arrival of the ambulance service.
  5. [85]
    It is noteworthy that one of the relevant comments which appears to form the substantial basis of the allegation, that Mr Newman said ‘Oh for god’s sakes it is anti Nick Newman year is it??? Is that what we’re talking about’, was not in fact said to Ms Burke, but was said to Mr Sweetnam with Ms Burke apparently listening in.
  6. [86]
    I note that Mr Newman was anxious to terminate the conversation with Mr Sweetnam, saying ‘..co-ordinate here..if you want to speak to me speak to me later’ which indicates that he was under stress and performing his immediate duty as officer on the scene.
  7. [87]
    I also note that Ms Burke took issue with Mr Newman and also raised her voice. She was perhaps affronted, but was in the comparative calm of the communications office, as compared to Mr Newman who was in the midst of a difficult and trying scene.
  8. [88]
    I can see a valid comparison with the comments of Connor J in this situation, that ‘minute retrospective criticism’ of the conduct of Mr Newman should not be made.
  9. [89]
    I am not satisfied that Mr Newman failed to treat Ms Burke with respect and dignity. This was an exchange that occurred in the heat of a difficult situation, and the level of intensity was contributed to by Ms Burke who also raised her voice. Mr Newman was perhaps short with Ms Burke, but he was interacting with her in the course of a difficult situation in pursuit of his duty.
  10. [90]
    I am not satisfied that Mr Newman engaged in misconduct, or that a disciplinary finding is substantiated, in relation to this allegation.

The Tibbett allegation

  1. [91]
    Senior Constable Camilla Tibbett was attached to the Mackay Police Station as a Communications Co-ordinator. The allegation relates to conversations that occurred on 16 November 2012.
  2. [92]
    Mr Newman had a series of three short conversations about the pursuit of a suspect. The conversations were recorded.
  3. [93]
    In the first conversation, Ms Tibbett tried to give some information about the suspect to Mr Newman:

CT: I’ll try to tell the DDO. (Phone dialling). No just about the health concerns. I’m going to try.

NN: (UI)

CT: Hello

NN: Yeah hello

CT: Ah hi it’s Camilla in Comms I realise

NN: I can’t talk right now

CT: I know I wanted to give you some important information (phone) FUCK!

  1. [94]
    It seems that the first conversation was abruptly terminated, and that Mr Newman then rang the Communications branch back.
  2. [95]
    In the second conversation Mr Newman spoke to an unidentified female:

NN: Yeah Comco tried to ring me in the middle of all that, I wasn’t able to take the call, can you get her to call me back if its urgent, thanks

  1. [96]
    In the third conversation Ms Tibbetts conveyed the information she was trying to give in the first conversation:

CT: Something communication lines

NN: (ui)

CT: Hello its (ui) again. I was um, I was trying to give you some important information at the time before that’s all, the Detective Sergeant (ui) was in the office here and we were talking about when Kepa was last in custody when he was under the influence and he almost died and we had to get the QAS in and so we were just concerned and we were trying to find out if anyone knew if he’d been chroming and obviously to let you know also that’s all just the health concerns

NN: Yeah I’m fully aware of all of his um previous medical issues and that sort of thing, I’ve dealt with him a few times

CT: Yep no that’s alright, I just wanted to make sure that’s all

NN: Thanks

CT: Okay then alright, bye bye

  1. [97]
    A record of interview was conducted between Ms Tibbett and Acting Detective Inspector Winter on 30 April 2013. A transcript of the conversation forms part of the evidence considered by the decision maker.[30]
  2. [98]
    Ms Tibbett said that she was frustrated by the actions of Mr Newman in terminating the initial telephone call:[31]

In general it feels as though I could go with this information or with that information and no matter what he’s not going to be happy with what I come to him with and it makes it very very difficult but of a more specific nature I’ll have an incident that I need to speak to him about and I’ll call him up ‘Senior I need to tell you about this job’.

Can’t talk’

Click! And he just hangs up on me and that is so frustrating, sometimes it’s really important information like he had one guy, him and a bunch of the general staff that he was cordoning off in the middle of town this juvenile who was in custody and he was high on paint and um we ended up getting an ambulance in he was very very close to dying this kid so I’m trying to call him to go ‘Senior just letting you know this child almost died in our custody’ and he would hang up on me so it wasn’t, he wasn’t in the middle of anything urgent, he wouldn’t even speak to me and that’s very frustrating there should be someone that you know that you need to talk that information to.

  1. [99]
    The Assistant Commissioner found that Mr Newman had displayed poor judgment by failing to ask the Communications Coordinator about the urgency of the call, and as result disregarded potentially vital information, and was rude and abrupt towards Ms Tibbett and terminated the call prior to finding out if the matter was urgent.
  2. [100]
    Counsel for Mr Newman submits that[32]:

It is alleged, that (Mr Newman’s) conduct amounts to misconduct in that he was ‘rude and abrupt’ to A/Sergeant Tibbett. The only words uttered by (Mr Newman) to Tibbett were ‘I can’t talk right now’ and those words were uttered in an even tone.

  1. [101]
    He refers to the comments of Connor J in McIntosh v Webster & Anor and submits that there should be some margin afforded to police, particularly those involved with offenders that are fleeing, that produce a ‘less than perfect’ response in a highly charged situation, and submits that:

Whilst (Mr Newman) could have, in retrospect, enquired if A/Sergeant Tibbett’s telephone call was urgent at the time, in our submission that certainly does not amount to a breach of discipline or misconduct by (Mr Newman).

  1. [102]
    He submits that no disciplinary action should be taken against Mr Newman for this matter, or that in the alternative, the matter should have been substantiated as a breach of discipline only.
  2. [103]
    Counsel for the Assistant Commissioner submits that whilst Mr Newman, with other officers, was trying to locate the juvenile, there is no evidence that Mr Newman was, at the time of Acting Sergeant Tibbett’s call to him, just about to apprehend or was in the process of apprehending the juvenile in question, such that Mr Newman would have been, at the time of that call, under extreme pressure.[33]
  3. [104]
    He submits that there was no reason for Mr Newman to hang up on Ms Tibbett in the circumstances that existed at the time, and that Mr Newman failed to treat Ms Tibbett with respect and dignity by being rude and abrupt towards her.
  4. [105]
    Mr Newman was engaged in an active pursuit at the time of the first telephone call. His exact activity at the time has not been identified, but he said that he could not talk right then – that has not been disproved. Mr Newman did ring Ms Tibbets back eight minutes later.
  5. [106]
    The comments of Connor J are directly applicable in this matter in that the actions of a police officer engaged in an active situation should be assessed cautiously.
  6. [107]
    The transcript does not disclose that Mr Newman was rude to Ms Tibbett. If he terminated the phone call, he did so abruptly and without any rancour – this may be suggestive of an urgent situation requiring his full attention, or may display a reckless demeanour.
  7. [108]
    However, the particular is that Mr Newman did not treat Ms Tibbett with dignity and respect, not that he performed his duty in a reckless way. The transcript of the relevant telephone call does not evidence that Mr Newman failed to treat Ms Tibbett with dignity or respect at all.
  8. [109]
    Having regard to the caution voiced by Connor J, and the lack of evidence showing that Mr Newman failed to treat Ms Tibbett with dignity and respect, I am not satisfied that a breach of discipline or misconduct is substantiated in this matter.

Knowingly providing false information

  1. [110]
    The investigation in question was being conducted by Detective Inspector Massingham of the Ethical Standard Internal Investigation Group in relation to Mr Newman’s conduct in connection with the arrest of Kaleb Kling on 13 December 2010.
  2. [111]
    A directed discipline interview was conducted between Mr Massingham and Mr Newman at the Mackay District Office on 1 May 2013. A transcript of the interview is in evidence.[34]
  3. [112]
    The allegation is that Mr Newman knowingly provided false evidence in the course of the interview. The particulars identify several alleged specific false statements by Mr Newman:
    1. (1)
      Mr Newman personally knocked on the door a number of times
    2. (2)
      The house was in complete darkness
    3. (3)
      Mr Newman walked around the house
    4. (4)
      There was nobody in that house
    5. (5)
      Mr Newman later found out that the owner was not there and had gone away on holidays
    6. (6)
      Mr Newman knocked loudly on the door and no-one came to the door
    7. (7)
      Someone else was with Mr Newman when ‘we’ knocked repeatedly on the door to notify the occupants that the fence had been pushed over and to get a statement
  4. [113]
    Mr Newman said in the interview that he was working with Constable O'Keefe on the evening of 13 December 2010 when they got a report that a male person was acting in an untoward way.[35] He said they spoke to the person and told him to move on, but not to ride his bicycle as it had no lighting on it and it was well after dark. He said the person pushed the bike a short distance away, directed a threat at them, and then jumped on his bike and rode off.
  5. [114]
    He said they then followed the person in the police car, and Constable O'Keefe gave the person a direction to stop, but the person kept going. In the course of the ensuing events, Mr Newman drove the police car up onto the footpath ahead of the person, then got out of the car and tackled the person and put him in handcuffs.
  6. [115]
    He said that the police car was resting against the fence, so he called the Duty Sergeant to come and see him. He said that the fence didn’t fall, but went to about a forty to forty-five degree angle.[36] He said the fence was not damaged, and that he and one of the other officers pushed it back up and it just slotted in the holes.
  7. [116]
    The relevant part of the interview is as follows:[37]

Massingham: Did you speak to the owner on the night?

Newman: Went to the door.

Massingham: Yeah.

Newman: I did personally. Knocked on the door a few times.

Massingham: yeah.

Newman: Ah place was in darkness and I later found out that the owner wasn’t there, had gone away on holidays.

Massingham: Are you sure about that?

Newman: positive. There was a phone call made that night, I don’t know who the phone call was by.

Massingham: Mmm, mmm.

Newman: But I instructed that someone needed to ring the owner and I almost a, a hundred percent positive that the owner was away at the time.

Massingham: Because we’ve spoken to the owner, he actually witnessed certain aspects of what occurred.

Newman: I don’t believe the owner because the owner came into Mackay Police Station and apparently ranted and raved and wanted his fence paid for and so I don’t believe anything the owner had to say. Um and as I said we, for a start nobody even approached us. Knocked on the door loudly waiting for the Duty Sergeant to arrive to breath-test me, no-one came to the door, the place was in complete darkness, walked around the back there was nobody in that house.

Massingham: Um his wife indicates um that she was home and provided a version as well.

Newman: That’s not true.

Massingham: Not true.

Newman: That’s not true at all.

Winter: She provided a version to us sorry not –

Newman: I know.

Winter: - not to you.

Newman: I know I’m saying she wasn’t home.

Winter: Yeah.

Newman: She’s, that she’s lying that’s rubbish. There was nobody at that house whatsoever. There was other people converged from other houses and came down towards us.

Massingham: Mmm, mmm.

Newman: But not from that house at all. And I was there for a good oh over half an hour waiting for the Duty Sergeant to arrive from Mackay Station and nobody was at that house.

  1. [117]
    The Assistant Commissioner relied on statements from the home-owners, Mr and Mrs Roberts.[38] The decision records their relevant evidence as follows:[39]

Mr Roberts was uncertain with regards to exactly what he was doing just prior to the incident. He could not recall if he was watching television or in bed (p.905). Mrs Roberts however is quite clear that both her husband and she were awake watching television in the lounge area when they heard the commotion out the front of their house (p.930). Upon hearing the crash Mr Roberts went out the front of his house and clearly observed a marked police vehicle up against his front fence post (p.905). Mr Roberts indicated that at the time of observing the police vehicle the headlights were on, no siren activated and he thought the red and blue emergency lights were activated (p.924).

Mr Roberts also recalls observing a single officer exit the vehicle and chase the offender across the road where he was taken to the ground and apprehended. Mr Roberts further recalls the offender putting up some sort of resistance because he heard you warning him to stop resisting (p. 906)

  1. [118]
    The decision further records:[40]

Mr Roberts recalls observing three (3) to four (4) additional police vehicles attending the scene and he believed one of these vehicles contained the Sergeant in charge for that night (p.912)

Both Mr and Mrs Roberts indicate that after their initial observations they returned to their house, secured the doors and windows. Both persons indicate that they were awake and the lights in the lounge area were on. Mrs Roberts indicated that you may not see the dwelling lights on from the footpath area outside their house, however if you walked into their yard you would clearly see the interior lights on (p.934). Mrs Roberts states that she saw the blue flashing light of another car through the curtain (p.936)

  1. [119]
    Another record of the statement of Mr Roberts is contained in the Investigation Report which notes:[41]

Mr Roberts recalled the events of 13 December 2010. He stated he was either watching television or lying in bed when he heard the skidding of tyres and a crashing noise. He went outside to have a look and saw a police car up against his gate post.

Mr Roberts stated the police vehicle had its headlights and emergency lights on, but no siren. He saw the one police officer present chased a male person across the road. He does not believe police officer saw him as he believes his attention was focussed on the male person.

Mr Roberts decided the best place to be was inside. He went back into his premises and locked the doors.[42]

He told his wife the police were outside with a male and the best thing would be to stay inside and lock the doors. He stated approximately 3 other police cars arrived including a supervising sergeant. He believes he heard the first police officer radioing for other police to attend the location. He stated he was in the lounge-room and the kitchen inside his premises when he heard these conversations.[43]

He stated they stayed awake as they had safety concerns regarding the incident as he did not know if the male was armed or not. He advised the incident happened around 8.30pm to 9.30pm on that evening and approximately half an hour later the police vehicle and personnel left the scene. He stated he was awake for the entire period during this time. He stayed up for an hour or more and believed he did not go to bed before the police left and vehicles left and everything was safe.[44]

  1. [120]
    Constable O'Keefe, the accompanying officer was asked about the incident in an interview on 6 November 2014, but was unable to recall what occurred in relation to approaching the residents[45]:

Constable O'Keefe was questioned whether he, the subject member Newman or any other officer present made any inquiry with the residence of 5 Maple Drive, Andergrove. Constable O'Keefe stated he had no recollection and was unable to answer the question. He stated due to passage of time and his current medical condition he was unable to confirm or otherwise whether any officer approached the residents of 5 Maple Drive, Andergrove during this incident.

  1. [121]
    Counsel for Mr Newman submits[46] that in a matter of this nature the requisite standard of proof is that identified in Briginshaw v Briginshaw and refers particularly to the observation of Dixon J that ‘In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences’.
  2. [122]
    He submits that in light of the nature of the charge, cogent evidence would be required in order to substantiate the matter against (Mr Newman); and that this is a matter in which ‘reasonable satisfaction’ could not be produced by ‘inexact proofs, indefinite testimony, or indirect inferences’.
  3. [123]
    He submits as to the element in dispute that:[47]

3.4.1 The issue for the present tribunal’s determination, is whether the available evidence is sufficient to substantiate, to the requisite standard, that (Mr Newman) provided a ‘knowingly false’ version of events.

3.4.2 The onus upon (the assistant Commissioner) to demonstrate (Mr Newman) provided such evidence.

  1. [124]
    He submits that the evidence does not demonstrate, to the requisite standard, that (Mr Newman) provided a ‘knowingly false’ version of events;[48] and that there is no cogent evidence that Mr Newman, as at the date of his disciplinary interview on 1 May 2013, knew his evidence to be false.[49]
  2. [125]
    Counsel for the Assistant Commissioner submits that the principle in Briginshaw v Briginshaw does not go to the standard of proof but to the standard of evidence that is required.[50]
  3. [126]
    He submits that the evidence clearly or cogently demonstrates that (Mr Newman) knowingly provided information which was untrue to Detective Inspector Massingham, and that:

163. The clear evidence that demonstrates, on the balance of probabilities, (Mr Newman) knowingly provided false information to Detective Inspector Massingham, is the evidence of Mr and Mrs Roberts. Clearly Mr and Mrs Roberts were at home and had lights on inside the house such that it would have been visible to (Mr Newman), if he did indeed enter their yard and knock at the door.

164. There can be no doubt that Mr and Mrs Roberts were at home at the material time because many of the events that they viewed were consistent with the various versions of events given by (Mr Newman).

165. it is submitted that there is clear evidence that (Mr Newman) did give knowingly false information to Detective Inspector Massingham in respect of the statements (Mr Newman) made during the discipline interview as referred to above.

  1. [127]
    The crucial issue in relation to this allegation is whether Mr Newman gave ‘knowingly’ false evidence. The mere finding that the evidence of Mr Newman was in fact false, or was subsequently found to be false on either the criminal standard of ‘beyond reasonable doubt’ in a criminal prosecution, or on the civil standard of the ‘balance of probabilities’ in civil proceedings arising from the event, would not determine that Mr Newman gave that evidence knowingly falsely.
  2. [128]
    Mr Newman may have had a genuine belief in the correctness of his evidence, notwithstanding that a subsequent decision-maker, or Court or Tribunal, may find that his evidence is not preferred or accepted to the relevant standard.
  3. [129]
    The evidence of Mr Newman and Mr and Mrs Roberts is sufficiently identical in respect of the events of that night as to the sound of the collision; the apprehension of the suspect; the calling of assistance by Mr Newman; and the attendance of numerous other police; for it to be beyond any doubt that all of them were in fact in attendance on that evening.
  4. [130]
    The difference in the evidence of Mr Newman and Mr and Mrs Roberts is as to what Mr Newman did and perceived as to the house.
  5. [131]
    I do not consider that the evidence of Mr Newman is irreconcilable with the evidence of Mr and Mrs Roberts. It is quite conceivable that the observations of each of them are understandable and believable.
  6. [132]
    Mr Roberts went back into his house after initially going outside to see what was going on. He then went back inside and told his wife that the best thing would be to lock themselves inside.
  7. [133]
    It appears that the curtains of the house were closed at all times.
  8. [134]
    The reported statements of Mr and Mrs Roberts do not indicate whether after Mr Roberts went back inside and locked the doors, as to whether he turned off any lights, or as to whether they continued to watch the television.
  9. [135]
    There is a strong suggestion in the evidence of Mr Roberts that he was concerned for the safety of his wife and himself, and that he essentially ‘barricaded’ themselves in the house, as he was unsure if the suspect was armed or not. It is highly likely that he would not have wanted to draw attention to the presence of himself and his wife in the house due to concerns for their own safety, and that they kept a ‘low profile’ so as not to draw attention to themselves.
  10. [136]
    It is quite believable that the effect of Mr Roberts withdrawing into the house and locking it up with the curtains drawn, would have been to make their presence not visible to someone in the close vicinity of the house.
  11. [137]
    Mr and Mrs Roberts both say that the internal lights of the house would have been visible with the curtains drawn by a person who walked into the yard. However, it is unclear if this is an assumption by them, or whether they actually observed seeing into the house from that position with the curtains drawn on the night. Mr Roberts went outside the house, so he may have been able to observe the house from outside, but Mrs Roberts did not go outside, so this observation appears to be an assumption on her part at least.
  12. [138]
    Mr Roberts said that he saw the flashing blue lights of the police vehicle through the drawn curtain from inside the house – this however does not automatically mean that an observer outside could see inside, as the relativity of the external and internal light levels would be significant, and would affect the respective reflection and transmission of light through the window glass.
  13. [139]
    If the ambient light level outside the house was significantly brighter than the observable light inside the house, an observer from outside may not be able to see inside. It is quite possible that the light outside the house from streetlights (and I note from the photographs that the house appears to be close to a lit intersection), and the lights from the blue lights and headlights of the police vehicles, could have been much brighter than the relatively dim light of the rooms with the curtains drawn, so that it was not possible to readily see inside.
  14. [140]
    Additionally, the flashing blue light of a police vehicle is of high intensity, and designed to be highly visible, whereas ordinary internal domestic room lighting may be comparatively dim.
  15. [141]
    None of the other several police who attended the scene are recorded as to their observations of the lighting of the house.
  16. [142]
    I therefore consider that there is doubt as to whether the lights inside the house would have been visible to an external observer when the curtains were drawn.
  17. [143]
    Mrs Roberts was definite that no police officer came and knocked on the door.[51] However, it is conceivable that Mr and Mrs Roberts may not have heard a person knocking at their door if they still had the television on at the time.
  18. [144]
    I am puzzled as to why the investigating Sergeant would not have himself knocked on the door of the house and obtained a statement from the home-owners, in a situation where a police vehicle had collided with private property and the actions of the police officer driving the vehicle may come into question.
  19. [145]
    A possible answer as to why the investigating Sergeant did not knock on the door himself is that the house may have had the appearance of being uninhabited, as Mr Newman relates.
  20. [146]
    I therefore do not consider that the evidence of Mr Newman is incompatible with the evidence of Mr and Mrs Roberts, or is significantly implausible.
  21. [147]
    There is therefore no compelling evidence, or compelling implication, that the information provided by Mr Newman as to his actions on the night and stated belief was manifestly false.
  22. [148]
    There is no direct evidence that Mr Newman knowingly gave false information, and I am not satisfied that the circumstantial evidence, or evidence of other witnesses, is sufficient to be reasonably satisfied that he did so.
  23. [149]
    Accordingly, I cannot be reasonably satisfied that Mr Newman knowingly gave false information to Mr Massingham.
  24. [150]
    I find that allegation 1(f) is not substantiated.

Conclusion

  1. [151]
    I find as to Matter 1(a) as to failing to treat members with respect and dignity, that the matters as to the Burton and O'Brien allegations are substantiated as a breach of discipline, but that the Burke and Tibbett allegations are not substantiated.
  2. [152]
    I find that Matter 1(f) as to knowingly providing false information to a senior officer conducting a disciplinary investigation is not substantiated.
  3. [153]
    I order that:
    1. A disciplinary finding is substantiated, as a breach of discipline, in relation to Matter 1(a) as to the Burton and O'Brien allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
    2. A disciplinary finding is not substantiated in relation to Matter 1(a) as to the Burke and Tibbett allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
    3. A disciplinary finding is not substantiated in relation to Matter 1(f) that Mr Newman knowingly provided false information to a senior officer conducting a disciplinary investigation.

Footnotes

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

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

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

[4]  Applicant’s Bundle of transcripts, Tab 4.

[5]  Burton transcript 13 July 2015, p 3.

[6]  Burton transcript 13 July 2015, p 4.

[7]  Burton transcript 13 July 2015, p 5.

[8]  Parnell transcript 20 July 2015, p 3.

[9]  Steindl transcript 30 July 2015, p 2.

[10]  Submissions of S W Zillman, filed 27 October 2015.

[11]  The Misconduct Tribunal Appellate Jurisdiction, Criminal Justice Commission, Appeal No 11 of 1996, 24 February 1997, at p 15.

[12]  Ibid, at p 16.

[13]  Misconduct Tribunal, 17 September 1999, p 10.

[14]  [2015] QCAT 391.

[15]  Submissions of J W Merrell, filed 10 November 2015.

[16]  Applicant’s Bundle of transcripts, Tab 8.

[17]  Ibid, p 5.

[18]  Ibid, p 7.

[19]  Record of interview Constable Stevens, p 3.

[20]  Record of interview Constable Stevens, p 7.

[21]  Record of interview Constable Stevens, p 9.

[22]  Submissions of S W Zillman, filed 27 October 2015, paras [2.7.10] and [2.7.11].

[23]  Submissions of J W Merrell, filed 10 November 2015, para [101].

[24]  Volume 3 of Material, p 99.

[25]  Applicant’s Bundle of transcripts, Tab 3.

[26]  [1980] 30 ACTR 19.

[27]  Submissions of S W Zillman, filed 27 October 2015, para [2.4.4].

[28]  [1980] 30 ACTR 19, at [28].

[29]  Submissions of J W Merrell, filed 10 November 2015, para [86] and [87].

[30]  Applicant’s Bundle of transcripts, Tab 3.

[31]  Record of interview Ms Tibbett, p 7.

[32]  Submissions of S W Zillman, filed 27 October 2015, para [2.3.4].

[33]  Submissions of J W Merrell, filed 10 November 2015, para [122].

[34]  Material Volume 3, p 146.

[35]  Interview Newman, line 605.

[36]  Interview Newman, line 735.

[37]  Ibid, line 780.

[38]  In the decision, those statements are said to be at around page 905. On the material in evidence, Volume 4, pages 894 to 949 are missing, and I have been unable to read them in original form. I have relied on the repeating of extracts of those statements in the decision.

[39]  Material Volume 1, p 85.

[40]  Ibid, p 86.

[41]  Material Volume 4, p 789.

[42]  Ibid. p 790.

[43]  Ibid.

[44]  Ibid.

[45]  Ibid, p 795.

[46]  Submissions of S W Zillman, filed 27 October 2015, para [3.3.1].

[47]  Ibid, para [3.4.1].

[48]  Ibid, para [3.5.1].

[49]  Ibid, para [3.5.3].

[50]  Submissions of J W Merrell, filed 10 November 2015, para [154].

[51]  Material Volume 4, p 791.

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Editorial Notes

  • Published Case Name:

    Newman v Assistant Commissioner Condon

  • Shortened Case Name:

    Newman v Assistant Commissioner Condon

  • MNC:

    [2016] QCAT 153

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    19 Jan 2016

Appeal Status

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