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Crime and Corruption Commission v Lee[2017] QCAT 483

Crime and Corruption Commission v Lee[2017] QCAT 483

CITATION:

Crime and Corruption Commission v Lee [2017] QCAT 483

PARTIES:

Crime and Corruption Commission

(Applicant)

v

Anthony William Lee

(Respondent)

APPLICATION NUMBER:

OCR096-16

MATTER TYPE:

Occupational regulation matters

HEARING DATES:

21, 22,  24 March 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

DELIVERED ON:

22 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for disciplinary orders is dismissed.

CATCHWORDS:

PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – OFFENCES – CORRUPTION – where the Crime and Corruption Commission has brought application for a finding of corrupt conduct – whether corrupt conduct has been proved

Crime and Corruption Act 2001 (Qld), s 50, s 219.

Briginshaw v Briginshaw (1938) 60 CLR 336.

Jones v Dunkel (1959) 101 CLR 298.

ASIC v Flugge and Geary [2016] VSC 779 at [880].

Lee v Crime and Corruption Commission & Anor [2014] QCATA 326.

Lee v Crime and Corruption Commission & Anor [2015] QSC 226.

Lee v Crime and Corruption Commission & Anor [2016] QCA 145.

Hurley v Clements [2010] 1 Qd R 215.

APPEARANCES & REPRESENTATIVES

APPLICANT:

Fordham M, SC and Mac Giolla Ri E, of counsel, instructed by the Crime and Corruption Commission

RESPONDENT:

Hunter J, QC, instructed by the Queesland Police Union Legal Group for Anthony William Lee

REASONS FOR DECISION

  1. [1]
    Senior Sergeant Lee has been a member of the Queensland Police Service (QPS) since 1989. In 2008, he held a senior position as Senior Sergeant in charge of the Mackay Child Protection Investigation Unit. In January 2008, he was tasked to conduct a preliminary inquiry into an alleged use of excessive force/assault by Senior Constable Price against Renee Toms in the course of arresting her at the Whitsunday watch-house. Senior Sergeant Lee’s conduct in conducting the investigation has been the subject of Crime and Corruption Commission (CCC) investigation, disciplinary action, review proceedings in the Queensland Civil and Administrative Tribunal (QCAT), appeal proceedings in QCAT and proceedings before the Supreme Court and the Court of Appeal.  In these most recent proceedings the CCC seek a finding that Senior Sergeant Lee’s conduct is corrupt conduct and he should be dismissed.

Background

  1. [2]
    On 18 January 2008, Renee Toms made a complaint to the QPS alleging that during her arrest she was subjected to excessive force by Senior Constable Benjamin Price at the Whitsunday watch-house.
  2. [3]
    On 21 January 2008, Lee was assigned the task of conducting a preliminary inquiry into the allegations.
  3. [4]
    The conduct of Price was recorded by Closed Circuit Television (CCTV) in the watch-house.  Lee was given the video as part of his task to conduct the inquiry.
  4. [5]
    There is factual dispute about certain aspects of Lee’s investigation which are discussed below.
  5. [6]
    On 26 February 2008, Lee emailed a preliminary report to the Professional Practice Manager (PPM),[1] in which he recorded details of inquiries he had made to date. He noted unsuccessful attempts to contact Ms Toms, his conversations with Price and that he had viewed the video footage which corroborated Price’s version of events. He recommended that as the complaint was intertwined with court proceedings concerning charges against Toms that no further action should be taken with regards to the complaint until the court action was finalised.
  6. [7]
    Ms Toms did not appear in the Magistrates Court proceedings on 30 April 2008 and pleaded guilty in writing to the charges, which included.
  7. [8]
    Lee provided a written report on 1 May 2008 to the Mackay Inspector of Police and requested the report be provided to the PPM. The report recorded the outcome in the Magistrates Court proceeding and made a final recommendation that Price be exonerated.
  8. [9]
    On 17 May 2008 the PPM, Inspector Wood, emailed Lee directing him to conduct further inquiries including obtaining a full version of events from Ms Toms and the other arresting officers and a report on the video footage.
  9. [10]
    Lee was given an extension of time to complete this task to 30 May 2008. On 24 May 2008 Price assaulted another watch-house prisoner.  Following this, the Ethical Standards Command (ESC) took over the investigation into Price.  Lee was directed to send all information that he had obtained regarding his investigation to ESC and advised that he was not required to conduct any further investigation.
  10. [11]
    During this ESC investigation, the CCTV footage of Ms Toms’ arrest was reviewed and found, in fact, to support Ms Toms’ version of the incident. Price was charged with various offences including assault on Ms Toms. In October 2010, Price was sentenced in the District Court to a term of imprisonment.
  11. [12]
    Subsequently, the then Crime and Misconduct Commission (CMC) conducted an investigation into Lee’s handling of the complaint. Internal QPS disciplinary proceedings were brought against Lee. The CMC applied to QCAT for review of the sanction imposed by the QPS. At first instance, the QCAT Member returned the matter to the Deputy Commissioner for further reconsideration. Lee appealed that decision to the Appeal Tribunal of QCAT, which granted the appeal in part but ultimately returned the matter to the QPS for further reconsideration.[2]
  12. [13]
    In 2014 the assistant commissioner of the ESC advised the CCC that the matter would be finalised by managerial action, rather than disciplinary action. The CCC responded by assuming powers over the investigation. Lee challenged that assumption of powers by the CCC in the Supreme Court, which affirmed the CCC’s power.[3] Lee then sought an appeal to the Court of Appeal, which dismissed the appeal in June 2016.[4]
  13. [14]
    Having thus assumed the investigation against Lee, the CCC considered that evidence as to the severity of Lee’s conduct was sufficient to support the starting of disciplinary proceedings in QCAT’s original jurisdiction for corrupt conduct against Lee. These proceedings were brought against Lee pursuant to s 50 of the Crime and Corruption Act 2001 (Qld) (the Act). The CCC seek a finding that corrupt conduct by Lee is proven and that he should be dismissed.[5]

The Legislation

  1. [15]
    The relevant provisions of the Act are as follows:
    • Section 50(1):
  1. (1)
    This section applies if the commission reports to the chief executive officer of a unit of public administration under section 49 that—
  1. (a)
    a complaint, matter or information involves, or may involve, corrupt conduct by a prescribed person in the unit; and
  1. (b)
    there is evidence supporting the start of a disciplinary proceeding for corrupt conduct against the prescribed person.
  • Section 50(2):
  1. (2)
    The commission may apply, as provided under the QCAT Act, to QCAT for an order under section 219I against the prescribed person.
  • ‘Corrupt conduct’ is defined in s 15 of the Act as:

15 Meaning of corrupt conduct

  1. (1)
    Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—
  1. (a)
    adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of—
  1. (i)
    a unit of public administration; or
  1. (ii)
    a person holding an appointment; and
  1. (b)
    results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that—
  1. (i)
    is not honest or is not impartial; or
  1. (ii)
    involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or
  1. (iii)
    involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and
  1. (c)
    is engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person; and
  1. (d)
    would, if proved, be—
  1. (i)
    a criminal offence; or
  1. (ii)
    a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

Who bears the burden of proof?

  1. [16]
    The CCC bears the onus of proving that the conduct occurred and that the conduct is ‘corrupt conduct’ in accordance with the definition in s 15 of the Act.

What is the standard of proof?

  1. [17]
    The standard of proof is to the civil standard of balance of probabilities. The parties acknowledge that because of the seriousness of the consequences to Lee if the allegations are proven, that the principles outlined in Briginshaw v Briginshaw,[6] by Dixon J (as he then was) apply.
  2. [18]
    His Honour said:

…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 references.[7]

What are the issues?

  1. [19]
    Ultimately, the Tribunal will have to decide whether Lee engaged in certain conduct, and if so whether that conduct satisfies all of the elements set out in s 50 of the Act so as to amount to corrupt conduct as defined.
  2. [20]
    The CCC submitted that the Tribunal can be satisfied on the evidence that Lee:
    1. Lied to the PPM in his running sheet report on 8 February 2008 in relation to his viewing of and the content and effect of the CCTV footage;
    2. Conducted a grossly inadequate investigation; and
    3. Inappropriately recommended the exoneration of Price, despite being in possession of material and information that established a real possibility that he had used excessive against Ms Toms.
  3. [21]
    The CCC says upon being satisfied of this conduct occurring, the Tribunal can conclude (in accordance with s 15 of the Act) that the conduct individually and collectively was:
    1. Capable of adversely affecting, and did adversely affect the performance of the functions of the QPS;
    2. Not honest or impartial;
    3. A breach of trust;
    4. Performed for the purpose of benefitting Price and/or causing detriment to Ms Toms; and
    5. A criminal offence and/or disciplinary breach providing reasonable grounds for dismissal.
  4. [22]
    In order to make determinations on these submissions, it is necessary to make findings about certain disputed facts.

What is the evidence?

  1. [23]
    The CCC filed and relied on a brief of evidence.[8] The brief contained statements of evidence, exhibits including a CD copy of the watch-house video tape, the compass summary report, Lee’s running sheet, QPS emails and transcripts of interviews between various people including Lee and the CCC and ESC investigators.
  2. [24]
    Lee submitted, and it was accepted by the CCC and this Tribunal that he should not be required to file any evidence or provide other material which contained a positive assertion, or denial of facts, or elect as to whether he intended to go into evidence before the case against him was completed.[9]
  3. [25]
    It is for the CCC to prove the conduct occurred and its categorisation.
  4. [26]
    At the hearing, the following witnesses for the CCC gave evidence and were cross-examined:
    • Detective Sergeant Nicholas Williams;
    • Inspector John O'Connell;
    • Renee Toms;
    • Former Senior Constable Benjamin Price;
    • Former Inspector Anthony Wood;
    • Former Sergeant Russell Pike; and
    • Former PPM Administrative Assistant Shelley Anne McKay.
  5. [27]
    Lee elected not to give or call any evidence.
  6. [28]
    The parties accept that the rule in Jones v Dunkel applies to these proceedings.
  7. [29]
    The CCC cite the case of ASIC v Flugge and Geary[10] as authority.
  8. [30]
    From these cases the following relevant principles may be discerned:
    1. The principles of Jones v Dunkel[11] apply to a proceeding for civil penalty;
    2. In circumstances where ASIC has established a case against Flugge, his failure to give evidence may (not must) enable the trier of fact to more readily adopt the conclusion to which the evidence points;
    3. Within those circumstances, the trier of fact may (not must) readily conclude that Flugge’s evidence would not have assisted his case;
    4. The failure of Flugge to give evidence to rebut the inferences sought to be drawn by ASIC against him, particularly in relation to his knowledge, enables the court to more comfortably draw an inference unfavourable to Flugge; ...
  9. [31]
    CCC submit based on these principles the fact that Lee chose not to explain his conduct allows the Tribunal to conclude his evidence and to allow the inference to be drawn that his conduct was for an unlawful purpose.
  10. [32]
    Lee’s representative pointed out, and I accept, that the Tribunal still has a discretion when considering whether to adopt a conclusion to which the evidence points when the respondent declines to five evidence.
  11. [33]
    He also points out that although Lee declined to give evidence he had provided answers to investigators during two interviews which was before the Tribunal.
  12. [34]
    I also accept the submissions that reference is also made in the Flugge case to the short falls in accepting evidence of conversations that occurred a long time ago.  It is submitted that given the period of time that has elapsed since the relevant conduct there is a risk that had Lee given evidence he would have been criticised because of the antiquity of the events that he was trying to recall.
  13. [35]
    Upon making factual findings conclusions can then be made about the conduct that Lee engaged in and whether the conduct satisfies the collective criteria in order to conclude that Lee has engaged in corrupt conduct.

Factual findings

  1. [36]
    Upon making factual findings conclusions can then be made about the conduct that Lee engaged in and whether the conduct satisfies the collective criteria in order to conclude that Lee has engaged in corrupt conduct.

The Assault by Senior Constable Price

  1. [37]
    It does not appear to be contentious that Price used excessive force and assaulted Renee Toms in the course of arresting her. I accept that the footage[12] as shown at the hearing depicts:
    1. The disparity in size between Price and Ms Toms;
    2. The excessive force used;
    3. The raising of Ms Toms’ arms up high behind her back;
    4. The lifting of Ms Toms off the ground before she is forced down onto the counter and onto the floor; and
    5. Ms Toms being picked up by the hair.
  2. [38]
    I accept that the evidence establishes Ms Toms suffered a cut to her chin during this process. The evidence also establishes that Price pleaded guilty to the assault on Ms Toms.

Ms Toms’ complaint

  1. [39]
    Senior Constable Williams (as he then was) was assigned to complete an initial inquiry into the incident.
  2. [40]
    He spoke to Ms Toms after her release and prepared her statement based on that interview.[13]
  3. [41]
    Senior Constable Williams generated a QP466 which is an online document which recorded Tom’s complaint. The QP466 was then uploaded into Compass, which was the complaints management system.
  4. [42]
    Shelly McKay, who was the PPM’s administrative assistant in 2008 explained in oral evidence at the hearing that Compass was a database where all complaints were recorded.[14]
  5. [43]
    The relevant Compass summary report in relation to Tom’s complaint was provided.[15]
  6. [44]
    Ms McKay explained that the bottom paragraph on the first page of the document under the heading “full precis” set out the information provided by the officer (in this case Senior Constable Williams) who uploaded and completed the QP466.
  7. [45]
    At the top of the first page is a paragraph headed “Summary of precis”.
  8. [46]
    Ms McKay explained that part is inserted by an officer from ESC after the ESC has considered the complaint with the CCC and determined whether the complaint would be dealt with by the ESC or sent back to the region for the regional PPM to select an appropriate investigator.
  9. [47]
    Here it was sent to the regional PPM Darryl Howe and Lee was selected as the investigator.
  10. [48]
    The first page of the Compass summary report under the Heading “Summary of precis” says:

The CP alleges that excessive force was used during her arrest for a stealing matter. The CP admits being abusive and struggling, assaulting the officer by kicking and digging her fingernails into the officer drawing blood in order to stop the P.O twisting the handcuffs that had been causing her pain.

The CP has been taken to the floor and sustained a small cut to her chin as a result.

QAS attended and treated the P.O and CP and recommended that the offender attend a G.P and seek further attention.

The CP has had her version recorded and watchouse video tape was viewed and verified parts of the CP’s version.

The CP was charged with obstruct, serious assault and stealing.

  1. [49]
    It is accepted that Lee was given a full copy of this Compass summary report[16] when he was allocated the task of the investigation.

Lee’s Investigation

  1. [50]
    Senior Sergeant Lee received an email[17] from PPM Howe on 21 January 2008 providing the Compass report and directing him to:

..undertake preliminary inquiries into each of the allegations as per ESC recommendations and record them on the attached running sheet.

The purpose of preliminary inquiries is to establish whether or not the matter is

  1. (i)
    substantiated; or
  1. (ii)
    unsubstantiated.

Do not conduct a full investigation at this point in time.

Preliminary inquiries should include:

  1. (a)
    Speaking with the complainant;
  1. (b)
    Speaking with the subject member;
  1. (c)
    Listening to any audio recordings of the incident;
  1. (d)
    Viewing any video footage of the incident;
  1. (e)
    Gathering any background information;
  1. (f)
    Conducing any other necessary inquiries.
  1. [51]
    QPS had in place a complaint and resolution procedures policy[18] which relevantly provided:
  1. No Further Action:

No further action need be taken regarding any complaint against a member of the service which…

(iii) dealing with the complaint would be an unjustified use of resources…

Where the complainant is charged with one or more offences and the issues relevant to the complaint are likely to be decided when the charge(s) is heard, no further action need be taken unless the court makes an adverse finding or comment which is relevant to the matter of complaint.[19]

Did Lee contact Renee Toms?

  1. [52]
    Lee was interviewed twice by ESC. First on 5 August 2008[20] and second on 16 March 2011.[21]
  2. [53]
    When asked on 5 August 2008 about contacting Toms he said that the only number he had for her was a mobile and it had no message bank. He tried to contact her a number of times and she did not pick up.[22]
  3. [54]
    He said he did contact her by phone on 8 February 2008 when he was at the Whitsunday station.[23]
  4. [55]
    In his second interview on 16 March 2011 he provided a different response.  He said he contacted her on 22 January 2008.  He said he told her he was investigating the complaint and that he would need to speak to her again.[24]
  5. [56]
    He then says on 23 January 2008, 25 January 2008 and 4 February 2008 he attempted to contact her again with no success.  He says he contacted Inspector O'Connell at Whitsunday and asked him to go to her address and have her contact him, which she did.  He said she told him she was leaving the area on 9 February 2008 so he arranged to meet her on 8 February 2008.
  6. [57]
    He said when he arrived on 8 February 2008 he attempted to phone her but she did not answer.[25]
  7. [58]
    He said he phoned her again later that day, she answered, told him she had travelled to Surfers Paradise, she had no intention of returning and that she had a court date on 31 March 2008.
  8. [59]
    He said he explained to her he would need to obtain a full statement from her.  He said she failed to appear in court on 31 March 2008 and he tried to phone her a number of times.  It was adjourned to 20 April 2008 and she failed to appear again.
  9. [60]
    In his “running sheet”,[26] he set out the details of his inquiries to date.  He does not make mention of any contact with Ms Toms on 22 January 2008.
  10. [61]
    He says:
    1. 23 January 2008 – attempted to contact her three times – no answer – no message bank;
    2. 25 January 2008 – further attempt – no answer;
    3. 4 February 2008 – further attempt;
    4. 6 February 2008 – he contacts O'Connell to arrange for them to contact Toms to call him – which she did and told him she was leaving the area;
    5. 8 February 2008 – he says he contacted her on her phone – he records that:

“she had left Whitsunday and would not be returning but that she would return for court hearing on 31 March 2008.”

  • She said she was upset at her treatment by Price
  • He told her that her allegations and the allegations of the police were intertwined with the court proceedings – in effect could not investigate the complaint until the court proceeding is finalised”.
  1. [62]
    Renee Toms gave evidence at the hearing regarding her contact with Lee. Her evidence began to the effect that she had no contact with Lee.
  2. [63]
    Subsequently she did concede, in cross-examination, that he could have contacted her on 22 January 2008.[27]
  3. [64]
    She conceded that she recently found an email that she had received from Lee that she had no recollection of receiving.
  4. [65]
    She also agreed she had no message bank on her phone, but could not recall seeing any missed calls on 23 and 25 January 2008, or 4 February 2008.
  5. [66]
    She could not recall, but agreed it was possible that she had left the area on 8 February 2008. She could not recall any conversation with Lee on that date.
  6. [67]
    It was put to her in cross-examination that she did have a conversation with Lee wherein he explained the facts of the complaint and the charges were intertwined. She said ‘it could have taken place – but just – I don’t recall it’.[28] However, later in cross-examination when asked whether Lee had explained to her that the investigation of her complaint would not be finalised until after court, she said ‘if that conversation had happened, I would have remembered’.
  7. [68]
    She subsequently conceded that conversations with Lee which she could not recall ‘could have happened’.
  8. [69]
    In re-examination when asked why she had said in cross-examination ‘I don’t think so’ when asked about conversations she may or may not have had with Lee she said:[29]

…just because I don’t remember any of this stuff. I also don’t remember the email which I later found. But that was, like, a one-sided email. So a lot was going on. I was moving, finding work, etc. But it’s because I don’t remember any of it.

  1. [70]
    The CCC submit that I should find that Lee did not contact Ms Toms because she said at one point ‘if that conversation had happened, I would have remembered’ and because Lee did not record the conversation that he said he had on 8 February 2008 in his diary. It is submitted that I should instead conclude that the notes in the running sheet and his answers to questions in interviews to the effect that he spoke to Ms Toms are a fabrication.
  2. [71]
    I find that Ms Toms’ recollection of events following the assault is very poor. Although she says she would have remembered if a specific conversation had taken place, she did say on a number of occasions that conversations may have taken place and she simply could not recall them.
  3. [72]
    Ms Toms concedes that there was a lot going on in her life at the time. It was many years ago, and I note that she has no recollection of receiving the email from Lee that she has recently located (but cannot now access).
  4. [73]
    I note from his answers to questions from investigators that Lee was aware that Ms Toms had moved to the Gold Coast, which supports his answers to investigators that he did speak to her on 8 February.
  5. [74]
    Whilst his written records and his interview answers are inconsistent about his phone contact with her on 22 January 2008, I am satisfied, based on his answers to questions in interviews and his written records, that Lee unsuccessfully attempted to contact Ms Toms on a number of occasions, that he was unable to leave a message and that he did at least have one conversation with her (as set out in his first interview)[30] after he attended Whitsunday Station on 8 February 2008 and told her that he was investigating the complaint and would take a more detailed statement after the court proceedings on 31 March.

The conversation between Senior Sergeant Lee and Inspector O'Connell about the video tape.

  1. [75]
    The evidence of Inspector O'Connell consisted of three transcripts of interviews with ESC and the CCC on 9 July 2008,[31] 7 March 2011,[32] and 19 March 2015.[33]
  2. [76]
    Inspector O'Connell also provided a witness statement dated 10 February 2016[34] and gave evidence at the hearing.
  3. [77]
    He was the officer in charge at the Whitsunday police station in January 2008. He watched the CCTV footage at the Whitsunday station and his consistent evidence, which I accept, was that after watching the video he was concerned about Price’s conduct.[35]
  4. [78]
    He met with Lee when he attended the Whitsunday watch-house on 8 February 2008. He gave the video to Lee. There is a dispute about what Inspector O'Connell may have told Lee when handing over the video.
  5. [79]
    In his statement prepared in 2016, Inspector O'Connell said that when he handed Lee the video he said to him words to the effect of ‘basically, when you look at the tape you’ll see that it’s not good… we’ve got some issues with him… this one needs to be done. We need to be seen to be acting on this one Tony’.[36]
  6. [80]
    He said Lee responded with words to the effect of ‘yeah, yeah, I’ve got a million things to do so I’ll look at it’.
  7. [81]
    His earlier statements about what he said were slightly different. In his first interview in July 2008 he said:[37]

He [Senior Sergeant Lee] advised me he had a preliminary inquiries role. I advised him that ah, ah I had some concerns over it and that ah, ah that I – where – if possible I wanted the matter expediated, to try and resolve the issue to try and reach some sort of outcome because there were some, the was some concerns raised by the two female officers involved. And I had those issues as well.

  1. [82]
    In his second interview in March 2011 he said:

Yes I, I would have to hand the tape over and um I would I have indicated that ah, when you see that it’s not – it doesn’t look good. This is a serious investigation.[38]

  1. [83]
    In his third interview in March 2015 he said:

… briefing might not be a-an accurate, but there was definitely conversation between me and Tony Lee when I handed him the tape and – and said um, a really quick summary this is basically what I said, ‘basically when you look at the tape you’ll see that it’s not good’.

Ah ‘and we’ve got some other issues with him’, and I don’t, would not have gone into those details, um, ‘this one needs to be done. We need to be seen to be acting on this one Tony’ and he, and it was basically a ‘yeah yeah um like I’ve got a million things to do so I’ll look at it.’[39]

  1. [84]
    In cross-examination, Counsel for Lee put to Inspector O'Connell that in interviews and statements subsequent to the first interview in 2008, Inspector O'Connell may have reconstructed what he told Lee and that the knowledge of the assaults Price subsequently committed may have impacted on the reconstruction.
  2. [85]
    Inspector O'Connell was forthright in his responses. He considered he could not remember the exact words spoken, but ‘the general gist of the conversation with him’.
  3. [86]
    Questions were put to him about his statements in the third interview and his 2016 statement to the effect that ‘they had issues with Price’. Inspector O'Connell’s evidence was that the other issues he was referring to was an incident in which Price sprayed capsicum spray on a naked man’s genitals.[40]
  4. [87]
    Inspector O'Connell’s oral evidence was that he was not sure when that incident occurred.[41] In his first interview in 2008,[42] he gave answers to questions about the capsicum spray incident to the effect that the incident and the assault on Ms Toms occurred in close proximity ‘yeah. Occurred on the same night work week. And very close. I don’t know whether they were the following day or within a day or two of each other’.
  5. [88]
    Counsel for Lee submits that I should find that the most Inspector O'Connell said to Lee at the time of handing him the tape was that he had some concerns over the incident and that he wanted the matter expedited.
  6. [89]
    It is submitted that given the passage of time, the additional detail in subsequent evidence of Inspector O'Connell (in 2011, 2015, 2016 and oral evidence) about the tape being no good and having other issues with Price could not be accepted as reliable.
  7. [90]
    The CCC point out that Inspector O'Connell stood by his evidence under cross-examination and in circumstances where no contradictory evidence was led I should accept the evidence in his statement as to what was said.
  8. [91]
    I find that Inspector O'Connell clearly had concerns about what he had seen on the video. He was aware of the incident with the capsicum spray that apparently occurred in close proximity to the incident with Ms Toms. Whilst I cannot make a finding as to the exact words spoken, I am satisfied, considering all of the evidence of Inspector O'Connell that he made Lee aware that he had concerns about what he had seen on the video, that there were other issues with Price and that he wanted the matter expedited.
  9. [92]
    Inspector O'Connell had also given evidence[43] that he spoke to Lee some weeks after 8 February 2008 in which Lee told him that he had not seen the video and Inspector O'Connell said words to him to the effect ‘well you’ll have a look at it and you’ll see why, why this matter’s not good’.
  10. [93]
    I accept as pointed out in Lee’s written submission that Inspector O'Connell did not mention this second conversation in his initial interview in 2008.  He did however mention it in 2011.[44]
  11. [94]
    I accept Inspector O'Connell’s evidence that he had that subsequent conversation with Lee.

Senior Sergeant Lee’s conversation with Senior Constable Price

  1. [95]
    When Lee came to the Whitsunday station on 8 February 2008 he had a conversation with Price.
  2. [96]
    A transcript of Price’s interview with the CCC in June 2015[45] was provided. Price also provided a written statement in these proceedings[46] and gave oral evidence at the hearing.
  3. [97]
    Price relevantly said in his interview:
    1. He had not met Lee before he came up to meet him at the Whitsunday station;[47]
    2. Lee took him to an interview room and they had an interview, but not a formal interview;[48]
    3. Price believed Lee had a recorder running;[49]
    4. He was not cautioned criminally, but a disciplinary caution was given where he was directed to answer questions;[50]
    5. Lee asked him a few questions.  He knew that Lee was collecting the tape.  Lee said he had seen the tape and Lee asked him for his version of events;
    6. It was a short interview, maybe 10 minutes.  Lee told him he would be making further inquiries and that he had to meet Ms Toms later that day;[51]
    7. He told Lee his version of events which was:

The footage was somewhat obscured um in relation to my version so um, you couldn’t see that Renee had me by the nuts, … because it was below the watch-house counter… so I relayed that to him apart from that everything was on the footage so, he asked me a few questions in relation to that.

  1. He thought the meeting was in the morning, about 9 or 10 o’clock but he could have been wrong;
  2. He said Lee did not go into any detail about the footage;
  3. At the end of the interview, Lee said ‘he had to go away and do a few more inquiries but he should be able to tidy it up’;
  4. Price took this as meaning forget about it it’s done and dusted;[52]
  5. He left thinking ‘yeah, this is done sort of and um about four to five weeks later I got a letter from Ethical Standards saying yeah good to go’;[53]
  6. He got a letter from ESC saying in relation to the incident with Ms Toms that there was no misconduct.[54]
  1. [98]
    In his written statement,[55] Price confirms what he said in the interview, that is, that he went into the interview room with Lee, he gave him the disciplinary direction, he thinks it was the morning but he could not be sure, and that Lee told him that he had seen the footage.
  2. [99]
    He confirmed that Lee said at the end of the interview, ‘I should be able to just tidy this up’. He also confirmed that he received a letter from Ethical Standards saying that no misconduct had been established in relation to the incident with Ms Toms.
  3. [100]
    In cross-examination, Price agreed that his statement made on 16 February 2016 was the first time he recorded in writing his version of events, as far as the Lee investigation was concerned.[56]
  4. [101]
    He agreed he could not be too dogmatic about giving his version of events given that it was nine years ago.[57]
  5. [102]
    It was put to him that Lee did not say that he had seen the footage and Price answered ‘I cannot recall whether he had seen it or hadn’t seen it’.
  6. [103]
    He agreed Lee may have said that the matter was tied up with the charges which might delay things. He also agreed that Lee may have said ‘I’ll try and get it finalised as quickly as I can’.[58]
  7. [104]
    Price did maintain that he was definitely not mistaken when he said Lee said ‘I should just be able to tidy this up’.
  8. [105]
    He also confirmed that he received a letter from ESC that there were no adverse findings against him in relation to the matter with Ms Toms.[59]
  9. [106]
    He was also asked about the incident with the capsicum spray. His evidence was the complaint about the capsicum spray was back when he was working at Cunnamulla. He said he was exonerated from that complaint and that it was well and truly ‘done and dusted’ before he got to Whitsunday.[60]
  10. [107]
    Lee’s answers to questions in interviews regarding his meeting with Price in February suggest he had only an informal conversation with Price. In the first interview[61] he said that he told Price that there was a complaint about excessive force, but that he did not interview him.[62]
  11. [108]
    In his second interview[63] on 16 March 2011, he said he obtained a verbal version from Price which was outlined in an email he sent to PPM of the Central Region.
  12. [109]
    He said subsequently in that interview ‘I had a preliminary with Price – he had prepared a statement for the court proceedings which he gave to him’.[64]
  13. [110]
    He said he told Price he was conducting preliminary inquiries into the complaint,[65] he did not record the conversation, the email to the PPM was his record of the conversation, his conversation was brief, he wasn’t asking Price questions and that Price was the one doing the talking.[66]
  14. [111]
    In his running sheet provided to the PPM,[67] he records a different version of events. At paragraph [2] of that document:

Travel to Whitsunday station and locate Senior Constable Benjamin Thomas Price. Inform Price that I was conducting preliminary inquiries into this complaint. Price declined to answer questions unless directed to do so. Price subsequently directed to answer question.

  1. [112]
    He records Price’s version of events including:[68]

…the subject officer has then taken the complainant to the ground and further restrained her to make her let go of his forearm. The subject officer then observed four wounds to his arm… the complainant was subsequently brought up off the floor and brought back to the charge counter…

  1. [113]
    It is difficult to make conclusive findings of fact about what transpired between Lee and Price, as there are numerous inconsistencies in both of their version of events.
  2. [114]
    Price’s recollection was not clear, but he was definite about two things: that Lee told him he should be able to just tidy it up and that he received a letter from ESC clearing him of any misconduct in relation to the matter with Ms Toms. Neither he, or the CCC could produce the letter. I find that he did not receive that letter.
  3. [115]
    Based on what Inspector O'Connell had said regarding the capsicum spray incident, I also do not accept Price’s evidence that that incident occurred before his time at Whitsunday.
  4. [116]
    Lee’s answers to questions in interviews suggest that the discussion with Price on 8 February 2008 did not involve any direction to answer questions and that it was a preliminary discussion where Price gave him his version of events, yet his running sheet prepared contemporaneously clearly indicates a more formal interview took place.
  5. [117]
    On the basis that both Price and Lee say  at some point that he was directed to answer questions, I accept that the events recorded on the running sheet by Lee are a more accurate account of events then what he provided to investigators in the interviews. On the basis that Price did not make any record of what Lee told him, and that he was wrong about the letter from ESC and the capsicum spray incident, I cannot be satisfied that Lee definitely used the words ‘I should be able to tidy this up’. It is conceivable (and Price agreed in cross-examination) that Lee did say that he should be able to finalise the investigation as soon as possible.

Senior Sergeant Lee’s statement about what was on the video

  1. [118]
    Lee’s statement in the running sheet dated February 2008 about the CCTV footage is central to the issue of whether his conduct was corrupt as defined.
  2. [119]
    In the running sheet, which was emailed by Lee to PPM Howe on 26 February 2008,[69] Lee recorded under the date 8 February 2008:

3. Watch video footage of watch-house incident, which corroborates the version as supplied by subject officer Price (both in possession of DSS Lee).

  1. [120]
    The CCC submit this statement must be a lie. Either Lee watched the video and lied about it corroborating Price’s version of events, or he lied about watching the video.
  2. [121]
    The use of excessive force can be seen on the video. The footage does not corroborate Price’s version.
  3. [122]
    Lee did not give any evidence. His previous statements about what he saw were inconsistent.
  4. [123]
    He says in the running sheet:

Watched the video footage…

  1. [124]
    In his first interview on 5 August 2008,[70] he says:

Ah the watch-house I seized but um ah I couldn’t, I didn’t have any facilities here to play it properly and couldn’t view it properly.[71]

  1. [125]
    He was asked whether he had seen that tape since – he said:

Ah that tape was the um ah the Whitsunday station needed that tape for another matter. Ah I then handed it to them. Senior Sergeant O'Connell said he kept possession of that tape in his…[72]

  1. [126]
    He also said:

I didn’t have the, the opportunity or the facilities here to, to view that tape.

It’s a VHS tape.

It’s on ah yeah time-lapse stuff and we just don’t have the, the capabilities to view that here. I’ve actually got ah other matters that I, am sending away, sending the tapes away to Brisbane to be um, ah fixed up for us so that I can actually view them up here.[73]

  1. [127]
    In his second interview on 16 March 2011,[74] he said:
    • He believed O'Connell gave him the video;[75]
    • He said he didn’t watch the video at Whitsunday because he was ‘basically trying to get all, get my head around everything that I had, I wanted to go back and sit down, read all the statements and hopefully watch the video which I wasn’t able to do…’;[76]
    • He attempted to watch the video either that day (the 8 February 2008) or the next (9 February 2008);[77]
    • He said he didn’t send it down to Brisbane to be enhanced at that stage because it took eight weeks to have it returned;
    • He had not viewed the video, ‘the first time I saw it was actually on ah on channel 7 news I believe’;[78]
    • He didn’t go back to Whitsunday to watch it because he didn’t think they had the facilities to watch it there.
  2. [128]
    In 2012, in correspondence to ESC,[79] Lee’s legal representatives provided another version of events in relation to whether or not the video was watched. They said:[80]

He instructs he believes he viewed some of the watch-house footage in relation to this matter, but clearly he accepts he did not view the entire footage, as he did not see the assault. He believes this would have occurred at Whitsunday watch-house when he first obtained the footage, and the purpose of the limited viewing would have been to confirm that the footage he obtained related to the time and date of the complaint.

DSS Lee instructs on his return to Mackay, he was unable to access the footage due to the format it was recorded in.

  1. [129]
    Whatever version is correct, Lee’s statement in the running sheet that the video footage corroborated Price’s version of events was baseless. It clearly showed the use of excessive force/assault on Ms Toms.
  2. [130]
    Lee’s representative submitted in relation to this issue that as there is no independent evidence about the quality of the actual video[81] and the time which Price obviously uses excessive force is 37 seconds on the tape, it is conceivable that he did watch it in the original format but the assault may not have been obvious.
  3. [131]
    I reject this submission. If Lee watched the whole video the assault was clear. Inspector O'Connell and Constable Williams gave evidence that they watched the video at Whitsunday and saw the assault. For this reason, I also find that Lee’s statement to investigators that he could not watch the video at Whitsunday to be untruthful. I have also accepted Inspector O'Connell’s evidence that he told Lee that he had watched the video. Further, Lee had the compass and the report set out in the precis that recorded that the recording was viewed and verified parts of Ms Toms’ version.
  4. [132]
    It is submitted on behalf of Lee that I should accept that Lee had genuine problems watching the video footage. I accept that he would have had problems watching the video at Mackay. Inspector Howe gave evidence that Lee told him he was having difficulties watching the video,[82] and Inspector O'Connell gave evidence that he would accept it if Lee had had problems watching the footage.[83]
  5. [133]
    Lee’s representatives submit that the truth of what Lee did with the video may be somewhere in between the two alternatives presented by the CCC (that is he lied about watching it, or that he watched it and lied about what it showed). It was submitted that he may have watched some of it in his attempt to watch the video. At some point Lee has misrepresented the facts. Whether he watched none or some, I find that he had no basis to state that the video corroborated Price’s version of events. The issue is whether he made that statement deliberately or recklessly.
  6. [134]
    Lee’s submission is that it is improbable that he would have deliberately attempted to deceive his superiors about what the video clearly showed.
  7. [135]
    Inspector Woods’ evidence at the hearing was relevant to this submission.
  8. [136]
    Inspector Woods’ evidence was that had the matter not been taken over by ESC that he would have ‘without fail’ have looked at the video himself.[84]
  9. [137]
    He explained that in these types of investigations there is a layer of review of the recommendations of the investigating officer:
    • He would have looked at the video and sent it to ESC;
    • It was a compulsory in ESC overview to look at the video;
    • It was likely that it would have been reviewed and the video watched by the CMC.
  10. [138]
    Although Wood was not the PPM at the time, he agreed that any officer who undertook training in the conducting of disciplinary investigations (such as Lee) would absolutely know of the layers of review involved.
  11. [139]
    I am not satisfied that Lee watched the video and saw the use of excessive force.  It may be that he watched part of it. I find that he had not watched the entire video when he made the statement in February 2008. If he knew what the video showed, I accept that he would have known at some point in the investigation that a lie that it corroborated Price’s version would have been revealed. I consider it highly unlikely that he would have taken that risk.
  12. [140]
    I am not satisfied that he told a deliberate lie about the video corroborating Price’s version. I find, instead, that he was loose with the truth when he said he watched the video in his report in February 2008. Without watching the video in its entirety that he had no basis for stating that it corroborated Price’s version. It was a reckless misrepresentation.

The inadequate investigation by Senior Sergeant Lee

  1. [141]
    The CCC submit that Lee conducted a grossly inadequate investigation.  Lee accepts it was inadequate.[85]
  2. [142]
    At the time that Lee commenced the investigation in January, he had the compass report which should have put him on notice that the complaint was not completely baseless. I have accepted Inspector O'Connell expressed his concerns to Lee about the contents of the video.
  3. [143]
    I have accepted that Lee made attempts to contact Ms Toms and spoke to her on one occasion. He attended the watch-house and spoke to Price. He did not take statements from the other officers who were present when the assault took place, namely Constable Smith and Toleman. He had the video but did not watch it, or at least all of it.
  4. [144]
    I accept that Lee would have had difficulties in watching the video at Mackay, but do not accept that he attempted to watch it at the Whitsunday watch-house.
  5. [145]
    I have also accepted Inspector O'Connell’s evidence that a few weeks after Lee’s visit to Whitsunday station that Lee told him he had not viewed the tape, and Inspector O'Connell told him effectively that he should look at it and he would see the problem.
  6. [146]
    Lee took no further action in the investigation until the court proceedings against Ms Toms were finalised on 30 April 2008, where she pleaded guilty in writing.
  7. [147]
    This was in accordance with his recommendations in his running sheet commentary provided on 26 February 2008,[86] where he recommended:

This complaint is intertwined with the police allegations, which will all be presented before a Magistrate. At this time there should be no action taken in regard to this complaint until such time as the court determination has been finalised.

  1. [148]
    Inspector Woods sent an email to Lee’s district officer on 16 April about the matter. He said ‘It was returned to Acting Inspector Lee to have court results obtained on 31st March 2008. I think the matter can be finalised when we receive the results providing there is no adverse comments’.
  2. [149]
    The matter was remanded to the 28 April. On 1 May 2008 at 10:19am, Inspector O'Connell emailed Lee and advised:

…result from court at Proserpine on 30 April 2008 re: Renee Toms re: internal you have.

She did not appear – pleaded guilty in writing – but claimed the police had lied in the statement about what had occurred – but insisted she wanted to plead guilty…

Magistrate heard the facts – accepted the plea of guilty in writing – accepted the police version as the truth and discounted/did not accept any contrary statements by the defendant…

  1. [150]
    Lee sent an email to Inspector Woods at 10:46am setting out the result from the court’s proceeding and making the following recommendation:[87]

Therefore the matter has been finalised in court with no adverse finding being made by the Magistrate regarding the police action. It appears that the complainant is not interested in pursuing her complaint as 1) she did not appear in court 2) does not answer her mobile phone which is the only point of contact as she has moved from Airlie Beach area.

I would therefore recommend that the officers involved in this complaint be exonerated.

  1. [151]
    I find that Lee’s investigation was clearly inadequate. I accept he had difficulties in making contact with Ms Toms. I accept that as the investigations were intertwined with court proceedings then it was the practice and policy not to intensely progress the investigation until the court proceedings were completed.[88]
  2. [152]
    I accept that this may have been an explanation for his failure to interview the other two officers. Inspector O'Connell, in his evidence, said as much. It was put to him in cross-examination that if a matter was interwoven with court proceedings that the investigation would not be progressed until the court proceedings were finalised and he answered ‘… certain aspects of it could be, but particularly the interviews with the officers could not be’.
  3. [153]
    Lee should however, have taken steps to watch all of the video. He could have returned to the Whitsunday watch-house and watched it. I accept he knew Inspector O'Connell had watched it. He could also have sent it to Brisbane to have it enhanced.
  4. [154]
    If Lee had conducted an adequate investigation and watched the video a recommendation that Price be exonerated would seem unlikely. Following finalisation of the court proceedings, PPM Inspector Woods sent on 17 May further instructions to Lee about continuing the investigation into the complaint. He noted that Ms Toms did not appear in court and the Magistrate did not make any adverse comments regarding the police action.[89] He noted however:
    • The complainant and other police officers had yet to be interviewed;
    • The video footage needed to be considered and sent back to him to be reviewed;
    • He noted the compass summary report referred to the footage supporting the complainants version. He detailed the further inquiries he wanted Lee to conduct.
  5. [155]
    Inspector Woods gave evidence that he was one of the few PPMs who insisted that some sort of inquiry take place regardless of the court outcome.[90] He agreed it was widely known that this was his approach.[91]
  6. [156]
    No further inquiries were undertaken by Lee. On 5 June 2008, Lee was emailed by Inspector Woods and asked to collate all the information he had in relation to the complaint and forward it to the ESC. He complied with that request.
  7. [157]
    The reason for this request from Inspector Wood was that Price had assaulted another watch-house prisoner and his conduct was being investigated by the ESC.
  8. [158]
    In summary I have found that:
    • Lee was loose with the truth in the running sheet by stating that he had watched the video (when at best he had only watched part of it) and he recklessly (but not deliberately) misrepresented that the video corroborated Price’s version of events;
    • He conducted an inadequate investigation, in particular he should have watched the video in circumstances where he was on notice that the complaint was not baseless and the video supported Ms Tom’s verso;
    • His recommendation of exoneration should not have been made when he had sufficient information to put him on notice that he should conduct a more thorough investigation which would have led to a different result.
  9. [159]
    The critical issue is Lee’s motive for his conduct. This issue is considered in the context of whether the conduct satisfies all of the elements in s 15.[92]

Did Lee engage in corrupt conduct?

  1. [160]
    I will consider each element of s 15.
    1. Was the conduct (or any of it) capable of adversely affecting, or could adversely affect the performance of the functions of the QPS?
  2. [161]
    Lee was a member of the QPS and his conduct occurred whilst he was undertaking a preliminary enquiry for an internal disciplinary investigation.  I accept that in representing that the video corroborated Price’s version, conducting a grossly inadequate investigation and too quickly coming to the recommendation to exonerate Price, this conduct did, as submitted by the CCC:
  1. Potentially pervert an appropriate investigation of Price’s misconduct; and
  2. Undermine public confidence in the QPS such as to satisfy the first element of corrupt conduct.
  1. Could the conduct result in a performance of functions of the QPS in the way that was not honest or impartial and/or involved breach of trust?
  1. [162]
    I have found that Lee misrepresented to the PPM in his recording in the running sheet that the video corroborated Price’s version.
  2. [163]
    I also accept that he was less than truthful in his second interview with investigators,[93] in saying that he did not believe he could watch the video at Whitsunday and that is why he didn’t attempt to watch it then.[94] 
  3. [164]
    He was also inconsistent in his answers to investigators in relation to his interview with Price and whether Price was directed to answer questions.[95]
  4. [165]
    I am satisfied that this conduct resulted in the performance of his functions in conducting the investigation in a way that was not honest.
  5. [166]
    It could have also resulted in the performance of this function and functions of the QPS in a way that was not impartial in that the investigation potentially wrongly placed Price in a favourable light.
    1. Was the conduct engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person?
  6. [167]
    This question involves Lee’s motive and is a critical issue in this case.
  7. [168]
    I accept the submission from the CCC that Lee’s conduct in misrepresenting what the video showed, conducting an adequate investigation and recommending Price be exonerated did confer a benefit on Price.
  8. [169]
    At the point that Lee recommended exoneration of Price, Price received a benefit.  The allegations of excessive force at that point were not substantiated and potentially no further action may have been taken against Price.
  9. [170]
    I also accept that in not having her complaint of excessive force dealt with Ms Toms suffered a detriment.
  10. [171]
    It is irrelevant to this issue that the truth of Price’s actions was ultimately discovered.
  11. [172]
    I must be satisfied that Lee had an intention to deliberately confer a benefit on Price by misrepresenting what the video showed, conducting an inadequate investigation and recommending exoneration.
  12. [173]
    The CCC say I can infer from the evidence that Lee must have engaged in the conduct for the purpose of benefitting Price.  It says I can make conclusions as to his intention based on the following:
  • It is fanciful to think that a police officer with 20 years experience could perform such an inept investigation and make recommendations for which he had no basis;
  • The recommendation was against the facts know to Lee;
  • Lee had indicated his purpose when he told Price he “should be able to tidy it up”;
  • His explanation for this conduct as provided in his ESC interviews is inconsistent with the documentary evidence and point to a conscientious serious wrongdoing;
  • He took only 27 minutes after being told of the Magistrates Court outcome to recommend exoneration of Price despite his stated position that he was waiting the outcome of the proceedings before taking any further steps in the investigation (for example interviewing the other officers or Toms);
  • He did not undertake the further investigation directed by Inspector Woods after the court proceedings was finalised; ...
  1. [174]
    As was outlined above, because of the serious consequences to Lee that inference is not made lightly.
  2. [175]
    Lee by his counsel submitted that the evidence is insufficient to enable me to be reasonably satisfied.  They say I must have regard to:
  • The seriousness of the allegations;
  • The inherit unlikelihood that Lee would:
  1. Destroy what was a promising career by deliberately and falsely misrepresenting the contents of the CCTV to assist Price who was unknown to him or to cause determinate to Toms who he had never met;
  2. Think that by misrepresenting the contents of the CCTV his deception would go undetected despite the multiple layers of review involved in the internal disciplinary process.
  1. [176]
    Lee says when considering these factors and the alternative hypothetical explanations put forward for his conduct I could not be so satisfied.
  2. [177]
    Lee in his submissions rightly concedes that the existence of competing innocent hypotheses does not preclude the making of an adverse finding on the balance of probabilities.[96]  He cites Hurley v Clements[97] that the Court said:

“…the application of the sliding scale of satisfaction test explained in Briginshaw v Briginshaw does not require a tribunal of fact to treat hypotheses that are reasonably available on the evidence as precluding it from reaching the conclusion that a particular fact is more probable than not.”

  1. [178]
    In this case however, having regard to the evidence before me and the possible explanations for Lee’s conduct which do not involve an intention to confer a benefit on Price I am not able to draw the inference urged upon me by the CCC. This is so even after considering the principles in Jones v Dunkel.

What are the possible explanations?

His statement about the CCTV footage

  1. [179]
    As set out above, I am not satisfied that Lee watched all of the video and saw the assault.
  2. [180]
    It is possible that he tried to watch the video and saw some of it but not the assault. I am persuaded by and accept the submission made on behalf of Lee that if he had seen this assault, it is improbable that he would intend to deceive his superiors about the contents of the video.
  3. [181]
    I am persuaded by the argument that it is improbable that a Detective Senior Sergeant with a promising career would put his future in jeopardy by intentionally protecting a uniformed Senior Constable who had never met.
  4. [182]
    I am also persuaded this is unlikely as he would have been aware when he made the record in February 2008 that at some point any such lie would be revealed because ultimately that video would be reviewed in the course of the investigation.

The inadequate investigation

  1. [183]
    Lee did conduct an inadequate investigation. I have found that Lee had one conversation with the complainant and made various other attempts to contact her.  He had a formal interview with Price but did not interview the other officers concerned, he did not watch the video in its entirety.
  2. [184]
    It was only a preliminary inquiry however he was instructed by PPM Howe in January 2008,[98] that a preliminary inquiry included,
    1. Speaking with the complainant;
    2. Speaking with the subject members;
    3. Listening to an audio recording of the incident;
    4. Reviewing any video footage of the incident;
    5. Gathering any number background information;
    6. Conducting any other necessary inquiries.
  3. [185]
    He should have at least watched the video in its entirety. I am not persuaded to the requisite standard however that in conducting an inadequate investigation he intended to benefit Price or cause detriment to Toms.  There are other more probably explanations.
  4. [186]
    I accept that Lee was otherwise undoubtedly busy as the Officer in Charge of a Child Protection Unit.  The evidence of Inspector Woods was that:[99]
  • It was not an officers favourite job to conduct internal investigations;
  • An officer tasked with doing an internal investigation would not be taken offline from your other duties;
  • He said:[100]

“it was the responsibility by them to juggle their time. And with all due respect to the role that they held, it was very very difficult.”

  • A high percentage of preliminary investigation reports sent to him would go back for further inquiries because they were deficient in making sure it was done to the standard that would get through ESC review.
  1. [187]
    Lee clearly did not spend a lot of time or effort however the evidence established that the policy was that if a complaint was intertwined with court proceedings an investigation would not be vigorously persuaded until after the court proceedings concluded.
  2. [188]
    To my mind, this would provide someone in his position with an excuse not to spend too much time on the investigation and postpone the task (particularly when I accept Toms was difficult to contact) until the court proceedings were finalised.

The exoneration

  1. [189]
    Lee should not have recommended the exoneration.  Despite the outcome of the court proceedings, Lee did have enough information at that point to raise the possibility that the complaint was not baseless.
  2. [190]
    He should have continued his inquires as he was ultimately directed to do by PPM Wood.
  3. [191]
    I am not however, persuaded that his intent in recommending exoneration was to benefit Price or cause detriment to Toms.
  4. [192]
    For the same reasons as identified above, I consider it more likely that he made the recommendation to get the investigation off his desk.
  5. [193]
    As stated earlier, the complaint and resolution procedures policy provided that “if a complaint is likely to be decided when the charge is heard, no further action need be taken unless the court makes an adverse finding or comment which is relevant to the maker of the complaint”.[101]
  6. [194]
    He had received the earlier email from Inspector Wood to District Officer Bond,[102] in which Wood said “… can you please follow up on this matter. It was returned to Acting Inspector Lee to have court results obtained on 31 March 2008. I think the matter can be finalised when we receive the results providing there is no adverse comments etc.” There were no adverse comments, so Lee finalised it as soon he became aware of the court result.
  7. [195]
    This email from Wood represents a different approach to finalisation of the complaint than Wood outlined in his oral evidence. His evidence was that despite that policy he was probably one of the few professional practice managers who stipulated that some sort of inquiry be done regardless of the outcome of the court process.[103]
  8. [196]
    He agreed in cross-examination that that approach was “somewhat controversial; widely known and regarded as something of a pain in the backside and that he would insist on these further investigations despite the policy providing a basis for discontinuing the investigation.”
  9. [197]
    Whilst Wood’s email to Bond would have given Lee an excuse to recommend the end of the investigation, Wood’s reputation for continuing to investigate beyond court proceedings causes me to doubt that if Lee had known what the video revealed he would have recommended exoneration.
  10. [198]
    The CCC submit that even if Lee wanted to get the investigation off his desk he could have simply found that the matter was unsubstantiated rather than recommending “exoneration”.
  11. [199]
    I am not persuaded that this is an indication of intent to benefit Price.  Inspector Wood gave evidence that the term “exonerated” was a term misused by investigators.[104]
  12. [200]
    In relation to Lee’s failure to complete the investigation as directed by Wood, I am not persuaded that this inactivity supports an inference that his prior conduct was for the purpose of benefiting Price. The length of the time between the direction (17 May 2008) and Price’s reoffending (24 May 2008) is relatively short. Lee had been given an extension to the 30th of May 2008.
  13. [201]
    I am not satisfied to the requisite standard that Lee’s conduct was undertaken for the purpose of benefiting Price or causing detriment to Ms Toms. On the evidence, there are other, more probable, explanations for his conduct.
  14. [202]
    Because I am not satisfied that the conduct Lee was engaged in was for the purpose of benefiting Price or causing detriment to Toms, it follows that I am not satisfied he engaged in corrupt conduct.
  15. [203]
    I am of the view that Lee’s conduct fell well below the standards the public are entitled to expect and his failing to conduct a proper inquiry possibly had the consequence that Price reoffended. It does not however reach the threshold of corrupt conduct.
  16. [204]
    If I am wrong in this finding and the evidence does establish the requisite purpose, then I am of the view that the fourth element of s 15 would be satisfied.
  17. [205]
    I accept the submissions of the CCC that the conduct, if proven, could be offences under s 92 (Abuse of office) and s 92A (Misconduct in relation to public office).
  18. [206]
    I also accept that if the conduct was directed at benefiting Price to the detriment of a member of the public then the conduct would be a disciplinary breach providing reasonable grounds for termination.
  19. [207]
    On the basis that I am not satisfied that all of the elements of corrupt conduct have been satisfied, the application must be dismissed.
  20. [208]
    I order accordingly.

Footnotes

[1]Exhibit 1, B-7.

[2]Lee v Crime and Corruption Commission & Anor [2014] QCATA 326.

[3]Lee v Crime and Corruption Commission & Anor [2015] QSC 226.

[4]Lee v Crime and Corruption Commission & Anor [2016] QCA 145.

[5]The Act, s 219I.

[6](1938) 60 CLR 336.

[7]Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-363.

[8]Exhibit 1.

[9]Tribunal Directions dated 1 February 2017, made by consent.

[10][2016] VSC 779 at [880].

[11](1959) 101 CLR 298.

[12]Exhibit 1, B1.

[13]Exhibit 1, B8; A9.

[14]T2-5.

[15]Exhibit 1, B5.

[16]Exhibit 1, C1, p 6, [160-170].

[17]Exhibit 1, B6, pp 2-3.

[18]Exhibit 2, ‘Section 18.2 Complaint Resolution Procedures’.

[19]Exhibit 2, ‘Section 18.2 Complaint Resolution Procedures’, p 3.

[20]Exhibit 1, C1.

[21]Exhibit 1, C2.

[22]Exhibit 1, C1, pp 6-7.

[23]Exhibit 1, C1, p 8.

[24]Exhibit 1, C2, p 7.

[25]Exhibit 1, C2, p 8.

[26]Exhibit 1, B7.

[27]T2-37, at 5.

[28]T2-39, at 5.

[29]T2-40.

[30]Exhibit 1, C1.

[31]Exhibit 1, C3.

[32]Exhibit 1, C4.

[33]Exhibit 1, C5.

[34]Exhibit 1, A1.

[35]Exhibit 1, B32(c); C3 p 11 at [340] and p 13 at [400]; C4 p 6 at [165]; and C5 p 6.

[36]Exhibit 1, B1, at [137].

[37]Exhibit 1, C3, p 28 at [860].

[38]Exhibit 1, C4, p 9 at [255].

[39]Exhibit 1, C5, p 7.

[40]T2-31-32.

[41]T2-32, L5.

[42]Exhibit 1, C3 p 11.

[43]Exhibit 1, A1 p 17.

[44]Exhibit 1, C4 p 16.

[45]Exhibit 1, C19.

[46]Exhibit 1, A6.

[47]Exhibit 1, C19 p 4 at [121].

[48]Exhibit 1, C19 p 6 at [220].

[49]Exhibit 1, C19 p 7 at [274].

[50]Exhibit 1, C19 p 7 at [276].

[51]Exhibit 1, C19 p 8 at [298].

[52]Exhibit 1, C19, p 11 at [467].

[53]Exhibit 1, C19, p 12 at [472].

[54]Exhibit 1, C19, p 12.

[55]Exhibit 1, A6.

[56]T2-44 at L15.

[57]T2-44 at L30.

[58]T2-45.

[59]T2-46.

[60]T2-46.

[61]Exhibit 1, C1, 5 August 2008.

[62]Exhibit 1, C1, p 7.

[63]Exhibit 1, C2.

[64]Exhibit 1, C2, p 18.

[65]Exhibit 1, C2, p 28.

[66]Exhibit 1, C2, p 31.

[67]Exhibit 1, B6.

[68]Exhibit 1, B7.

[69]Exhibit 1, B7.

[70]Exhibit 1, C1.

[71]Exhibit 1, C1, pp 12-13 at L345.

[72]Ibid, at 355.

[73]Ibid, at 370.

[74]Exhibit 1, C2.

[75]Exhibit 1, C2, p 18 at 544.

[76]Exhibit 1, C2, p 19 at 570.

[77]Exhibit 1, C2, p 20 at 585.

[78]Exhibit 1, C2, p 20 at 615.

[79]Exhibit 1, B39.

[80]Exhibit 1, B39, at p 18.

[81]Respondent’s Outline of submissions, [28].

[82]Exhibit 1, A8 at [23].

[83]T2-33.

[84]T2-54.

[85]Respondent’s Outline of Submissions, [55].

[86]Exhibit 1, B7.

[87]Exhibit 1, B19.

[88]Inspector O'Connell’s evidence, T2-30; Exhibit 2, ‘Section 18.2 Complaint Resolution Procedures’.

[89]Exhibit 1, B20.

[90]T2-57.

[91]T2-57, L20.

[92]CCC Act, s 15.

[93]Exhibit 1, C2, at [21].

[94]Exhibit 1, C2, at [49].

[95]Exhibit 1, C1, p 7, L180. 

[96]Respondent’s Outline of Submissions, [21].

[97][2010] 1 Qd R 215 at [27].

[98]Exhibit 1, B6, p 2. 

[99]T2-52, L535.

[100]T2-52, L15.

[101]Exhibit 2, ‘Section 18.2 Complaint Resolution Procedures’, p 3.

[102]Exhibit 1, B16.

[103]T2-57 at L10.

[104]T2-57 at L37.

Close

Editorial Notes

  • Published Case Name:

    Crime and Corruption Commission v Anthony William Lee

  • Shortened Case Name:

    Crime and Corruption Commission v Lee

  • MNC:

    [2017] QCAT 483

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan

  • Date:

    22 Dec 2017

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2017] QCAT 48322 Dec 2017Application for disciplinary orders dismissed: Senior Member O'Callaghan.
Primary Judgment[2019] QCATA 3810 May 2019Leave to appeal granted; appeal allowed; leave to cross-appeal refused; Tribunal’s decision of 22 December 2017 that the application for disciplinary orders is dismissed is set aside and the following decision is substituted: Anthony William Lee engaged in conduct that is corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld); directions made as to submissions for final orders: Daubney J and Member Browne.
Primary Judgment[2019] QCATA 15125 Nov 2019-
Appeal Determined (QCA)[2020] QCA 20115 Sep 2020-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
ASIC v Flugge and Geary [2016] VSC 779
2 citations
Jump To
Cite 1 - [2016] VSC 779
Cite 2 - [2016] VSC 779
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Hurley v Clements[2010] 1 Qd R 215; [2009] QCA 167
2 citations
Jump To
Cite 1 - [2010] 1 Qd R 215
Cite 2 - [2010] 1 Qd R 215
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Lee v Crime and Corruption Commission [2015] QSC 226
2 citations
Jump To
Cite 1 - [2015] QSC 226
Cite 2 - [2015] QSC 226
Lee v Crime and Corruption Commission [2016] QCA 145
2 citations
Jump To
Cite 1 - [2016] QCA 145
Cite 2 - [2016] QCA 145
Lee v Crime and Corruption Commission & Anor [2014] QCATA 326
2 citations
Jump To
Cite 1 - [2014] QCATA 326
Cite 2 - [2014] QCATA 326

Cases Citing

Case NameFull CitationFrequency
Crime and Corruption Commission v Lee [2019] QCATA 383 citations
Lee v Crime and Corruption Commission [2020] QCA 201 2 citations
1

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