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Gunter v Assistant Commissioner Wilkins QCAT 410
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gunter v Assistant Commissioner Wilkins  QCAT 410
Assistant commissioner brian j wilkins
Occupational regulation matters
15 October 2019 (orally)
15 October 2019
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer accessed personal information on police database – whether access improper
Crime and Corruption Act 2001 (Qld), s 219H
Police Service Administration Act 1990 (Qld), s 1.4, s 2.3, s 4.9
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Briginshaw v Briginshaw (1938) 60 CLR 336
T E Schmidt instructed by Gnech and Associates
M Nicolson instructed by Queensland Police Service
REASONS FOR DECISION
- Member Kanowski: The Tribunal in this proceeding is reviewing a disciplinary decision made by the Assistant Commissioner on 11 April 2019. He decided that the applicant, Sergeant Gunter, had engaged in misconduct between 9 November 2016 and 16 February 2017 that was improper in that he accessed confidential information contained in the Queensland Police Service computer system without an official purpose related to the performance of his duties as a member of the Queensland Police Service.
- Sergeant Gunter has applied to the tribunal for a review of that decision.
- I note that Assistant Commissioner Wilkins also imposed a sanction for the misconduct that he found, but review is not sought in the current proceeding of that sanction.
- The documents before the tribunal consisted of documents numbered up to page 365 plus some additional documents, S1 to S58, which I allowed as additional evidence under section 219H of the Crime and Corruption Act for reasons that I gave in the course of the hearing.
- ‘Misconduct’ is defined in the Police Service Administration Act section 1.4 as, amongst other things, conduct that is improper. The Commissioner has issued a Standard of Practice for Professional Conduct identified as 2012/33, which includes a section, section 16, on the improper use of QPS information. To paraphrase, it notes that officers have access to many sources of information, some of which is confidential, and there is accountability and trust required, and so there is no excuse for members to betray the public trust by making any unauthorised, improper or unlawful access or use of any official or confidential information available to them. Of particular significance, the section says:
When dealing with official or confidential information of the QPS, members are not to access, use or release information without an official purpose related to the performance of their duties.
- I am informed, and I accept, that that Standard of Practice document constitutes a direction by the Commissioner for the purposes of section 4.9 of the Police Service Administration Act and requires compliance by police officers. Mr Schmidt also points to section 2.3 of the Police Service Administration Act which sets out the functions of the QPS, which include the prevention of crime, the detection of offenders and bringing of offenders to justice, and the upholding of the law generally.
- Under section 20 of the QCAT Act, the tribunal is required to reach the correct and preferable decision.
- In the context of police disciplinary matters, there are a series of authorities which have been mentioned in the parties’ written submissions. I will quote briefly from some of those authorities, as quoted by Mr Nicolson, without giving the citations for them, because it is undisputed that these comments are applicable. They are to the effect that a tribunal in this situation is required to make its own decision on the available evidence rather than to merely determine the correctness of the original decision. But that is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for a tribunal in making up its own mind to give considerable weight to the view of the original decision-maker, who might be thought to have particular expertise in the managerial requirements of the police force.
- That is particularly so where the evidence before a tribunal will be the same as the evidence that was before the original decision-maker, as is essentially the case here. The only additional evidence is really just a more expanded copy of some of the computer records. But essentially the information that was before Assistant Commissioner Wilkins is the same as the information before the tribunal.
- Both parties have drawn attention also to the requirement for a tribunal to be satisfied on the balance of probabilities, having regard to the comments in Briginshaw v Briginshaw, a 1938 case decided by the High Court. A tribunal must be reasonably satisfied of a matter, and what will be required to establish that reasonable satisfaction will vary according to the gravity of the fact to be proved and, sometimes referred to as a sliding scale of reasonable satisfaction, determined by the seriousness of the charges.
- Of course, that is of some relevance here because a disciplinary finding is a serious matter, and should be appropriately established. I also accept that due regard should be had to the reasoning of Assistant Commissioner Wilkins, and I have attempted to do that, although ultimately, in factual matters, I have to reach my own findings.
- The particulars of the misconduct alleged against Sergeant Gunter are recited from the disciplinary proceeding notice of 23 November 2018, with a modification as to one date.
- They are that, firstly, in July 2016, Sergeant Gunter signed a contract with Firm C to renovate his home, and work commenced in October 2016.
- Further, between 10.01 and 10.08 pm on 10 November 2016, Sergeant Gunter accessed confidential information contained within the QPS computer system called QPRIME, and that was in relation to a person called RNV (the administrative manager at Firm C), GPY (a former partner of RNV), TBV (the director and construction manager of Firm C) and LDV (an administrator at Firm C).
- Further, at 10.13 am on 25 January 2017, Sergeant Gunter again accessed confidential information from QPRIME, and on this occasion, the information related to his own vehicle and driver’s licence details.
- Further, between 2.04 and 2.11 pm on 15 February 2017, he accessed information from QPRIME. On this occasion, information related to DNC (a project manager for Firm C) and FRG (a labourer for Firm C).
- Further, the information access was not related to the performance of Sergeant Gunter’s duties as a member of the Queensland Police Service.
- Further, in May 2017, Sergeant Gunter lodged a formal complaint with the Queensland Building and Construction Commission concerning issues that he had with Firm C.
- Further, on 24 May 2017, Sergeant Gunter reported to his officer in charge, Acting Senior Sergeant McGuinness, that he had accessed QPRIME to search those entities related to Firm C, resulting in a formal complaint being lodged by Acting Senior Sergeant McGuinness to the Ethical Standards Command.
- It is undisputed in this proceeding that Sergeant Gunter accessed the information about those people on those dates that I have mentioned. The dispute is about whether the accesses were without an official purpose relating to the performance of Sergeant Gunter’s duties. There is no suggestion that Sergeant Gunter had been required by any other officer to investigate those persons. Rather, it is common ground that he took it upon himself to access information about those persons on QPRIME.
- A precis of the accesses indicates that Sergeant Gunter searched by way of name or phone number. He accessed a variety of information about those people I have mentioned, plus some other people, with some of that information being quite old. For example, in relation to RNV, it included information about a defective vehicle, and even information about a complaint of indecent treatment that she had made. It is said in the precis that in relation to that indecent treatment matter, that Sergeant Gunter opened the record and read both a general occurrence report and an ‘MO’ report.
- He also checked information, as I said, on other people, and particularly he looked up information on someone listed as an associate of RNV, namely GPY, who had been her partner. And with TBV, for example, he also accessed a variety of information, including, for example, something described as a flag that TBV was the holder of a weapons licence. That relates to the accesses on 10 November 2016.
- In relation to the 25 January 2017 access, the precis says that he searched the computer under his own name, and opened a record for himself. He opened an external link to Queensland Transport about vehicles and vessels etc. registered in his name. He viewed his own vehicle and licence details.
- Then, so far as the 15 February 2017 accesses are concerned, the precis indicates that Sergeant Gunter searched for DNC by name and looked up various records about him, including ones about burglary, drug intelligence, and his licence. In respect of the other person, FRG, Sergeant Gunter did a search by phone number. He had the phone number for that person. He looked up various information, including information about the dangerous operation of a motor vehicle and about FRG’s licence.
- On 24 May 2017, Sergeant Gunter made what has been described as a self-report about the access to Acting Senior Sergeant McGuinness. Sergeant McGuinness (by that time) was interviewed about it in September 2017. He provided his recollection of his interaction with Sergeant Gunter back on 24 May 2017. According to Sergeant McGuinness, Sergeant Gunter had self-disclosed that he had access to information pertaining to the builder that was doing renovation works at his house; mentioned that there had been a falling out or some dispute with the builder; and said that he had wanted to ensure that they, referring to the builders, were not associated with any criminal motorcycle groups. According to Sergeant McGuinness, Sergeant Gunter outlined that the check was not related to any official QPS investigation. Sergeant Gunter, according to Sergeant McGuinness, had some concerns with the builders being in his house where his wife and young child were present. He had concerns about people being in the house that he did not know. He wanted to ensure that there were no issues of personal safety.
- According to Sergeant McGuinness, Sergeant Gunter had mentioned something about the builders drinking, and concern about them drink-driving. According to Sergeant McGuinness, Sergeant Gunter had also said that the builders had said words to the effect that they believed that Sergeant Gunter had done some checks on them, or abused his position of authority, and that they would be taking the matter further. Sergeant McGuinness made a report to the appropriate part of the QPS about the matter, which made reference to the various issues or at least some of the issues that I have mentioned: concern about the builders’ and sub-contractors’ behaviour, and checking on those persons to ensure that there was no risk to him, his family, or his property. Also, that there were further checks after the builder advised of the possible fraud offence committed when the company had had equipment stolen.
- The respondent also points out that there is evidence from TBV to indicate that the self-report by Sergeant Gunter was prompted by Sergeant Gunter becoming aware that allegations may be made against him that he had accessed information about the builder. That is, indeed, common ground, that that seems to have been the prompt for the self-report.
- Of course, that does not necessarily mean that the access made by Sergeant Gunter was improper. It could be that he knew the matter would be, or was likely to be, investigated, and that he wanted to put on record his version of events. It may be that he did legitimately consider that he had acted properly. It is also noteworthy that Sergeant McGuinness mentions this concern that, he says, Sergeant Gunter raised about the possibility that the builders might be from a motorcycle gang. That is significant because that explanation did not figure in Sergeant Gunter’s later account to investigating officers or in his own affidavit. So that could be indicative of inconsistent accounts given by Sergeant Gunter.
- Against that, Mr Schmidt highlights the fact that Sergeant McGuinness indicates that he did not make detailed notes of the conversation: seeing himself, really, just as a conduit of information. Sergeant McGuinness was relying, in September 2017, on his recollection of that conversation from May 2017, and Mr Schmidt submits the concern about motorcycle gangs could have just been Sergeant McGuinness’s take on things. Mr Schmidt also emphasises that there were a number of other points made by Sergeant McGuinness that were consistent with the later account given by Sergeant Gunter.
- I do accept that, because of the absence of any detailed account from Sergeant McGuinness at the time of the 24 May 2017 conversation, that somewhat limited reliance can be placed on Sergeant McGuinness’s recollection of what was said.
- Sergeant [Gunter] was interviewed in September 2017. He said he had been a police officer since 2002. He disputed the notion that he had self-reported. As he put it, he said he had approached his superior, Senior Sergeant Lowcock, to say that the builder had started bringing up his employment which, according to Sergeant Gunter, was to be retaliation for the complaint that Sergeant Gunter had made to QBCC and Master Builders about the firm. Further, Sergeant Gunter believed the builder would retaliate against him. Senior Sergeant Lowcock, according to Sergeant Gunter, asked him if he had looked up the builder. He said that he had. She said that that would be viewed as misconduct and he had to report it to his officer-in-charge, Acting Senior Sergeant McGuinness, and so he did that even though, according to Sergeant Gunter, he did not view his own conduct as misconduct.
- Sergeant Gunter emphasised that he had met with Firm C at its office in April 2016 before signing the contract. He said it was a big renovation: it went on for quite a number of months. He said he did make a complaint to QBCC about various aspects of the work, and that his understanding was that resulted in some breaches for the firm. According to Sergeant Gunter, as the work progressed, he and his wife would receive daily or almost daily stories, as he put it, from DNC about the conduct of the people running Firm C: TBV, LDV (the wife of TBV) and RNV (the sister of TBV). According to Sergeant Gunter, it related to things like charging for work that had not been carried out, insolvent trading, insurance fraud in relation to a backhoe that had been allegedly stolen in mysterious circumstances, and that these various stories led him to believe that those three people may be committing offences. He says he eventually conducted a check to see if they had dishonesty or stealing offences in the past. He said the checks indicated that they did not, and he put the matter down to, perhaps, DNC being a disgruntled employee. He said his purpose in conducting the checks was to see what sort of character these people had: to see if they had any history. He said he did not remember opening up an indecent treatment record relating to RNV. He said perhaps he had been on the phone, because he was in a busy position at the time, with a lot of phone calls. He could have just been playing with the mouse. He claimed to not have any particular recollection of some other of the information looked at. He says he did not remember the tabs he went to; he thought nothing of the checks. He said he looked up the three people, did some checks, and moved on. That was the way he explained it.
- According to Sergeant Gunter in his interview, if he had found what he referred to as a smoking gun, he would have taken the matter further by contacting a particular detective about the alleged fraud or another officer about drink-driving, which is a matter I will come to in a short time. He said he could not remember looking up GPY. In relation to DNC and FRG, he said that they would come back to the house after lunch, and you could smell alcohol on their breath, but he, at the time, accepted DNC’s assurances that they were not intoxicated; that they just had one beer over lunch. Later, however, DNC’s wife came to the house and related to Sergeant Gunter that the two gentlemen had been visiting the hotel after work every day and coming home intoxicated. He said he thought it was a real possibility that those two gentlemen were doing so and may have been driving in those circumstances or that they may have had disqualifications or been unlicensed or had suspended licences, so he checked their licences. He says he found they were both licensed and so, in his words, he moved on.
- He emphasised that he had not conducted any searches before the build commenced. He said that there were quite a large number of tradespersons coming through the house, but he only checked those particular small number of people, and he says that was in response to information he had received. Asked why he had, in effect, looked so extensively on their records, he explained that as being a matter of habit. When you look someone up, he said, you look at flags; you look for possible warrants; you do checks. If someone asked you to look into someone’s licence, in effect, you do not just do a licence search, he claims, but you do checks. He said it is routine ‘muscle-memory’ to do a variety of checks. He has done that, he said, through the 16 years he has been a police officer.
- In relation to checking his information, he said he did not recall doing that. He was asked whether he recalled speed-camera tickets around the time. He said he did not.
- Late in the interview, he conceded that he could have done more in terms of keeping records of these searches that he had done. He could have put information into an email or had a conversation with his officer-in-charge. He said that hindsight is a wonderful thing, but everyone is busy and he did not want to burden other people with extra tasks in relation to information that, ultimately, went nowhere.
- He reiterated a lot of those things in his affidavit of 8 February 2019. He expanded, somewhat, on what he said he had been told about Firm C: additional things such as not paying superannuation; encouraging friends to subcontract and overcharging; and then splitting the extra money obtained; not paying subcontractors; and similar matters. He claims that at some point he formed a suspicion that criminal offences may have been committed. He did a search at the end of one of his shifts. He says he found no intelligence that corroborated the information of DNC that insurance fraud was being committed. He put it down to a disgruntled employee and thought that no further action was warranted.
- He said that his first contact with QBCC was on 2 December 2016 to obtain advice about variations. His first complaint to QBCC, he said, was on 18 January 2017. He denied that there was any relation between that complaint and the checks on TBV, RNV and LDV. In relation to the check on his own details, he said that he had not recalled at the time of his interview but he had since remembered that he had passed a speed camera and believed that it had detected him speeding, and that he believed that there may have been a letter about a possible licence disqualification due to SPER fines that was sent but not received by him because there was a period when he did not have a letterbox because of the construction work. He said that he therefore felt it was appropriate or proper for him to check to see whether he was properly licensed, and so he checked his licence and vehicle records. So that is Sergeant Gunter’s account, in summary.
- The respondent submits that Assistant Commissioner Wilkins considered all of these matters and concluded that the accesses were not authorised. The respondent notes that I should give proper due respect to the findings and views of the Assistant Commissioner. Further, the respondent picks up on many of the points made by the Assistant Commissioner in his statement of reasons: in particular that for much or quite a good deal of the information that was accessed on QPRIME, there was either no nexus to the suspicions that Sergeant Gunter had mentioned as his motivating reason, or there was an insufficient nexus between those suspicions and what he looked at on QPRIME. This included, for example, looking at information about other persons, such as GPY, and looking at the indecent dealing record in relation to RNV. Mr Nicolson submits, in effect, that the records are not consistent with Sergeant Gunter merely stumbling across information. I am putting that in my own words, but I think the way Mr Nicolson put it was perhaps more to the effect that one could draw an inference from the precis of the QPRIME print-out and from the QPRIME print-out itself, that Sergeant Gunter had actively pursued information that was irrelevant to the suspicions that he said he had.
- In particular, taking the indecent treatment matter as an example, Mr Nicolson submitted that an inference could be drawn that Sergeant Gunter had opened up reports and further reports, in effect – and again, I am using my own words here – that he was drilling down further into this information, even though it was totally irrelevant to any suspected fraud. Mr Nicolson submits that the reasoning of Assistant Commissioner Wilkins in his statement of reasons is entirely sound.
- In relation to the check by Sergeant Gunter of his own licence and registration details, Mr Nicolson submits there is a stark inconsistency between the version given at interview and the later version given in the affidavit. And, in any event, as Assistant Commissioner Wilkins reasoned in his statement of reasons, the appropriate course would have been for Sergeant Gunter to seek advice from the Department of Transport and Main Roads if he wanted that information.
- Similarly, the Assistant Commissioner took the view that, for example, further action should have been taken by Sergeant Gunter if he truly had these concerns. For example, in relation to the suspected drink driving, he should have instigated a course of action to have that matter addressed properly rather than merely doing the searches that he did. Also, Mr Nicolson emphasises that the reason for the self-report was that Sergeant Gunter was aware that his access was likely to come to light in the near future.
- Mr Schmidt, on the other hand, submits, that the information available is consistent with Sergeant Gunter’s account of doing checks for the reasons that he has asserted. As far as looking up material on unrelated topics such as the indecent treatment, Mr Schmidt submits that this is consistent with Sergeant Gunter merely opening records to see what is in them: he cannot be expected to know what the contents of the documents will be without opening them. Similarly, checking up on associates such as GPY, Mr Schmidt submits, is consistent with the usual policing practices of checking the associates of a suspect to see if they have a criminal history because if they do, that may very well reflect on the suspect’s reliability or criminal tendencies.
- In my view, it is not clear, on the information that has been presented, what would have been visible to Sergeant Gunter before he opened up records on QPRIME. There is no statement, for example, explaining in detail what would have been apparent to someone in Sergeant Gunter’s position. I am not prepared to find, on the available evidence, that Sergeant Gunter deliberately pursued irrelevant information about these people.
- In my view, it is possible that Sergeant Gunter, in this, was merely snooping on these people, trying to find out damaging information about them that he could use in a building dispute with Firm C. That is certainly a possibility.
- In my view, however, it is also possible that he did the searches for the reasons that he has advanced in his interview and his affidavit. There is corroboration from Sergeant Gunter’s wife that there were reports about problems with the company. In fact, DNC, when questioned about it, also said that he did frequently tell Sergeant Gunter about various problems with the firm. Sergeant Gunter’s wife also formed the view that there was some reason to suspect alcohol consumption by those two gentlemen, DNC and FRG.
- I am also not satisfied that Sergeant Gunter gave a necessarily inconsistent account to then Senior Sergeant McGuinness; that is, an account inconsistent with the account that he has advanced before the tribunal, given, as I said, the absence of any detailed records kept by Senior Sergeant McGuinness and the passage of time before Senior Sergeant McGuinness was asked to recount his recollection of the conversation.
- On the balance of probabilities, I accept the explanation given by Sergeant Gunter that he made the checks for the reasons given in his interview and affidavit, and that he undertook what were, essentially, routine checks. I accept his assertion that such checks are not, by nature, narrowly confined, and that it is usual practice for police to check various aspects of a record when looking into someone as a possible suspect. I am therefore not satisfied, on the balance of probabilities, that Senior Sergeant Gunter breached section 16 of the Standard of Practice 2012/33.
- I am not satisfied that he accessed information without an official purpose related to the performance of his duties. Perhaps one other aspect, which I think I might have overlooked mentioning from his interview, which I think is consistent with the findings I have made, is that he said he viewed himself as a police officer 24/7. In other words, he is constantly a police officer, not just when he is on formal duty. I think that is a reasonable viewpoint.
- Similarly, in relation to checking his own licence records, I do not think it is remarkable that he said in the interview he did not remember having done so or that he said he did not remember getting a speeding ticket around that time. The latter part of that is actually not inconsistent with what he later said, because he said he was merely concerned that he may have got a speeding ticket or may have lost his licence. In the interview, a lot of topics were canvassed in what would have been quite a pressured situation for Sergeant Gunter, and I do not think it reflects necessarily adversely on him that he did not remember what he said later in his affidavit that he did remember about why he checked his own licence and registration records.
- I also note that the Standard of Practice does not prohibit a police officer from checking their own records, and it is not obvious what would be improper in a police officer doing that in a situation such as that described by Sergeant Gunter. Also, the policy does not prohibit a police officer checking up on someone who they reasonably suspect of criminal activity merely because that officer has some personal or commercial relationship with the person. It may be that Sergeant Gunter should have taken other action to follow up his suspicions, and, clearly, he did not do so. But such failure is not what the disciplinary charge or disciplinary matter relates to. So I accept, really, the submission of Mr Schmidt in that regard, that it is the purpose of the access that is relevant rather than any later failure.
- For those reasons, I find that Sergeant Gunter did not breach the Standard of Practice, and it is not necessary for me to canvass the submissions that were made by counsel about whether he had an honest and reasonable mistake about whether he was authorised to do that, because, in my view, he not only believed that he was entitled to do so, but that he also was entitled to make those checks.
- Accordingly, the reviewable decision is set aside. A decision is substituted that matter 1 set out in the disciplinary proceeding notice dated 23 November 2018 is not substantiated.
- I also make an order that the publication of the names of the persons whose information was accessed by the applicant on QPRIME, and of the construction firm which undertook the renovation of the applicant’s home, and of any information that would identify those persons or that firm, is prohibited. I make that order under section 66 of the QCAT Act, which permits such orders in various situations where that is necessary, for example, to avoid the publication of confidential information. Here, the information that was accessed was confidential about those persons. It is sensitive information, quite a bit of it, and accordingly, it is not appropriate that it be further disseminated through any publication.
Note in relation to non-publication order in respect of Sergeant Gunter’s address
- (There were then submissions from counsel, which I gave effect to but without giving express reasons, that it would be appropriate to also prohibit publication of the residential address of Sergeant Gunter to avoid endangering his safety, as he is a police officer).
- Published Case Name:
Gunter v Assistant Commissioner Wilkins
- Shortened Case Name:
Gunter v Assistant Commissioner Wilkins
 QCAT 410
15 Oct 2019