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Crime and Corruption Commission v Chief Superintendent Horton APM[2021] QCAT 437

Crime and Corruption Commission v Chief Superintendent Horton APM[2021] QCAT 437

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission v Chief Superintendent Horton APM & Anor [2021] QCAT 437

PARTIES:

crime AND corruption commission

 

(applicant)

 

v

 

chief superintendent glenn horton apm

Officer xkb

 

(respondents)

APPLICATION NO/S:

OCR021-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 December 2021

HEARING DATE:

11 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The decision of Chief Superintendent Glenn Horton APM dated 15 December 2020 that Matters 1(a) and 1(b) are not substantiated is confirmed.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – general administrative review – where officer accessed information about a person known to the officer in a private capacity – where information accessed was held on a Queensland Police Service database known as QPRIME – where disciplinary proceedings commenced and charges of alleged misconduct presented – whether subject officer accessed information held on QPRIME without an official purpose related to the performance of duties – whether subject officer failed to identify and/or manage a conflict of interest – where conduct found to be unsubstantiated – where the Crime and Corruption Commission applied to review the decision that the misconduct is not substantiated – whether the allegations of misconduct are proven to the required standard

Crime and Corruption Act 2001 (Qld), s 219B, s 219BA, s 219C, s 219G(2), s 219H, s 444, s 452 Schedule 2

Domestic and Family Violence Protection Act 2012 (Qld), s 100 

Police Service Administration Act 1990 (Qld), s 1.4, s 2.3, s 3.2(1)

Public Service Act 2008 (Qld), s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21, s 66

Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor No 2 [2020] QCAT 426

Acreman v Deputy Commissioner Pointing [2021] QCATA 133

Aldrich v Ross [2001] 2 Qd R 235

Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2) [2021] QCATA 42

Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner of Police v Antoniolli [2021] QCA 237

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

Gunter v Assistant Commissioner Wilkins & Anor [2021] QCA 274

Mathieu v Higgins [2008] QSC 209

Murray v Deputy Commissioner Stewart [2011] QCAT 583

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Schauer v Banham, Misconduct Tribunal – Appeal No. 11 of 1996

APPEARANCES & REPRESENTATION:

Applicant:

MG Docwra, Crime and Corruption Commission

Respondents:

IP Fraser, Senior Legal Officer, Queensland Police Service

GM Cranny, Solicitor, Gilshenan & Luton for XKB

REASONS FOR DECISION

  1. [1]
    On [redacted], officer XKB was off duty [redacted]. A man known to XKB [redacted].
  2. [2]
    At the relevant time, XKB was [redacted].
  3. [3]
    During the interaction between XKB and the man on [redacted], the man made comments [redacted] to the effect that he was involved in a [redacted], had attempted to take his own life and intended to do so again.
  4. [4]
    Later on [redacted], XKB looked up [redacted] and sent the man a [redacted] message [redacted] but the man did not reply to it.
  5. [5]
    XKB returned to work on [redacted].
  6. [6]
    On other occasions on [redacted], respectively, XKB read entries on the man’s Facebook page.
  7. [7]
    On [redacted] XKB was on duty [redacted] and accessed the Queensland Police Service (QPS) QPRIME system to view records relating to the man.
  8. [8]
    Later, on [redacted], XKB spoke to the man. The man asked XKB for advice. XKB refused the man’s request for information [redacted]. XKB spoke to the man about his mental wellbeing.
  9. [9]
    A complaint was made to the QPS by [redacted].
  10. [10]
    QPS investigated the complaint and presented two matters of misconduct against XKB.[1] Matter 1(a) concerns accessing QPRIME without an official purpose. Matter 1(b) relates to a failure to identify and manage a conflict of interest between private affairs and employment as a police officer.
  11. [11]
    Following a disciplinary hearing, the first respondent found the two matters of misconduct to be unsubstantiated. The first respondent provided reasons for the decision dated 15 December 2020 (‘the reasons document’).[2]
  12. [12]
    As reflected in the reasons document, XKB’s explanation for making the inquiry on QPRIME was, amongst other things, on the basis that he held concerns for the man’s mental wellbeing. The first respondent was satisfied that XKB continued contact with the man and subsequent QPRIME searches were to determine if further intervention was required to provide assistance to him.[3] In relation to Matter 1(b), the reasons document shows that XKB did not consider that he had any relationship with the man. The first respondent found that the limited nature of the contact had with the man was not a sufficiently close relationship as to create an actual or apparent conflict of interest. The first respondent did not find that XKB failed to identify or manage a conflict between his private life and professional duties as a police officer.[4]
  13. [13]
    The Crime and Corruption Commission now applies to the Tribunal to review the first respondent’s decision of 15 December 2020, that the two matters of misconduct are not substantiated.
  14. [14]
    The Commission seeks an order on review that the first respondent’s decision of 15 December 2020 be set aside and by way of a substituted decision the Tribunal find that the misconduct is proven for Matters 1(a) and (b).[5]

What is the role of the Tribunal on review?

  1. [15]
    The role of the Tribunal on review is well settled. The Tribunal stands in the shoes of the decision-maker or in this matter the first respondent, Chief Superintendent Horton APM, exercising the same powers as the decision-maker under the enabling act to produce the correct and preferable decision.[6]
  2. [16]
    The review proceeds before the Tribunal as a rehearing on the evidence that was before the decision-maker commonly referred to as the ‘section 21 material’.[7] It is appropriate to give ‘considerable weight’ to the findings of the decision-maker on the basis that the decision-maker might be thought to have ‘particular expertise in the managerial requirements of the police force’.[8]
  3. [17]
    The Tribunal has a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.[9] In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.[10]
  4. [18]
    The Tribunal must be satisfied and find accordingly that the conduct complained of is police misconduct. ‘Misconduct’ is conduct that, if proven, is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.[11]
  5. [19]
    In Assistant Commissioner Stephen Hollands v Tolsher[12] the Appeal Tribunal considered Mathieu v Higgins[13] and the term ‘misconduct’ in an ambulance service disciplinary enactment to mean more than ‘mere impropriety, performance deficiencies or misjudgement.[14] In Tolsher the Appeal Tribunal said, and I agree, that ‘improper’ denotes wilful indifference or wanton abuse of professional privileges and confidences or a real lack of integrity capable of eroding the trust and confidence in the officer’s moral character.[15]
  6. [20]
    The Tribunal must be reasonably satisfied as to the truth of fact alleged taking into consideration the seriousness of the allegation and the consequences that flow from a finding of misconduct.[16] In Crime and Misconduct Commission v Assistant Commissioner J P Swindells & Ors, Applegarth J said and I agree:

It is unnecessary to conclude whether the evidence was capable of satisfying the criminal standard of proof. The issue is whether it was open to the tribunal on the probative evidence to not be satisfied of the particular alleged, applying the civil standard of proof.[17]

  1. [21]
    In my view a finding of misconduct is serious and should not be arrived at lightly. The Tribunal is required to consider the consequences that flow from a finding of misconduct that may only be arrived at after a proper consideration of the evidence to be reasonably satisfied that the conduct is proven. The more serious the charge, the more careful the Tribunal should be to arrive at a finding of misconduct.[18] The question of whether the issue has been proven to the reasonable satisfaction of the Tribunal ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’.[19]

Submissions relevant to Matters 1(a) and (b)

  1. [22]
    At the oral hearing before this Tribunal Mr Docwra for the Commission referred to the following matters in addressing Matters 1(a) and (b), now set out below:
    1. (a)
      the Police Service & Administrative Act (‘PSA Act’) and the common law concerning the duties of constables of police do not confer power upon a police officer to undertake functions without regard to the hierarchy of police service command;
    2. (b)
      The performance of functions consistent with the functions of the police service may not amount to the performance of a duty as a police officer when they are not allocated by superior officers and no permission was sought from superior officers to conduct or perform such functions;
    3. (c)
      Police officers are not conferred with ultimate power to perform the functions of the police service as they see fit;
    4. (d)
      In the absence of authorisation by superiors, QPRIME inquiries cannot reasonably be regarded as having an official purpose in the performance of the duties as a police officer; and
    5. (e)
      These principles have very recently been endorsed by directly relevant decisions in Acreman v Deputy Commissioner Pointing[20] and Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2).[21]
  2. [23]
    As I understand the Commission’s contentions raised in the review proceeding, for Matter 1(a), the Commission says it was not XKB’s role at [redacted] to make the inquiry about the man when he returned to duty on [redacted]. Upon returning to duty on [redacted], XKB was required to report the incident [redacted] to the relevant police officer responsible for [redacted] in the area.
  3. [24]
    Further to that, the Commission says that there was no official purpose for the QPRIME access because those activities fell outside XKB’s official role [redacted] and he was not entitled to access QPRIME. The Commission says that there was no evidence, as observed by the first respondent in the reasons document, that XKB documented or made entries as to his reasons for the inquiry.[22]
  4. [25]
    The Commission invites the Tribunal to reject XKB’s assertion that he was performing his functions as a police officer under s 2.3 of the Police Service Administration Act 1990 (Qld) (PSA Act), as in force at the relevant time, to render service or help.[23] At the oral hearing before this Tribunal, Mr Docwra for the Commission argued that there is no indication that the man asked for help in relation to his mental health issues.
  5. [26]
    In addressing Matter 1(b), Mr Docwra for the Commission at the oral hearing before this Tribunal said that XKB had a duty to report any conflict of interest to his [senior] officer. Mr Docwra said that whether there is a conflict of interest is a question of law based on the construction of the Standard of Practice and the Code of Conduct.[24]
  6. [27]
    In its written submissions, the Commission argues that the failure on the part of XKB to manage an existing conflict of interest and his access to QPRIME without authorisation from his superiors is in the circumstances of this matter sufficiently morally or socially blameworthy to call for nothing less than a finding of improper conduct amounting to misconduct and is deserving of serious sanction.[25]
  7. [28]
    The particulars relating to Matters 1(a) and (b) are detailed in the Disciplinary Proceeding Notice.[26] XKB accepts all of the particularised conduct relevant to Matter 1 save for particulars (xiv) and (xv) in relation to Matter 1(b).[27] Particulars (xiv) and (xv) provide as follows:

xiv.  You failed to identify and/or manage your conflict of interest with your duties which arise from your interactions with [the man]

xv.  You failed to disclose the conflict of interest to your [senior] officer or any other officer.

  1. [29]
    XKB disputes, however, that the conduct is capable of being substantiated as misconduct.[28]
  2. [30]
    At the oral hearing before this Tribunal, Mr Docwra for the Commission conceded that particular 1(b)(v) is not established on the evidence. Mr Docwra said that the unsubstantiated particular is not detrimental to any findings regarding the substantiation. Particular 1(b)(v) provides as follows:

v.  You advised [the man] you would not find information out for him as police officers get investigated for helping people out and you wouldn’t jeopardise your job for him.

  1. [31]
    One of the issues that arise on review for Matter 1, is whether the concerns that XKB said he had about the man’s mental wellbeing were genuine. If I am satisfied based on the evidence before me that XKB held concerns for the man’s mental wellbeing, I am still required to determine whether the misconduct as particularised in Matters 1(a) and 1(b) are proven to the required standard. I must be satisfied to the required standard that XKB’s conduct was improper by virtue of accessing information without an official purpose relating to the performance of his duties and failing to identify and/or manage a conflict of interest having regard to the particulars of Matters 1(a) and (b).

What is the correct and preferable decision?

  1. [32]
    It is non-controversial in this matter and I accept that XKB acted appropriately on [redacted] under s 7.1 of the PSA Act, as in force at the relevant time, in performing the functions of a police officer under s 2.3. It was an emergent situation. The man [redacted]. The man’s comments caused XKB to be concerned about the man’s mental wellbeing. [redacted].
  2. [33]
    I accept, as submitted by Mr Cranny for XKB at the oral hearing, that there was no personal investment on XKB’s part with respect to the conduct. Further to that, as submitted by Mr Cranny, I accept that there is no evidence before me that there was any grievance between XKB and the man.
  3. [34]
    For reasons explained below, in my view the evidence supports a finding that XKB and the man were known to each other in their private lives. Further to that, I am satisfied that the man approached XKB on [redacted] because he is a police officer.
  4. [35]
    In a disciplinary interview with police and in a statement submitted in the disciplinary proceeding below, XKB maintains his evidence that he did not have a personal relationship with the man.[29] XKB says that [redacted].[30]
  5. [36]
    The man himself gives evidence about his relationship with XKB [redacted].[31]
  6. [37]
    In a [redacted]. The man says that they had never been out, or had a meal, or socialised together.[32] The man does not describe XKB as a mate but as someone he knew if he saw him.[33]
  7. [38]
    The [redacted].[34]
  8. [39]
    I accept, as submitted by Mr Cranny on behalf of XKB at the oral hearing, that the man was not seeking XKB out on [redacted]. On balance I find that the man approached XKB because XKB was known to him (the man) to be a police officer.
  9. [40]
    XKB consistently maintains [redacted] that the man approached him on [redacted].[35]
  10. [41]
    Importantly, the man’s evidence given during [redacted].[36]
  11. [42]
    At the oral hearing Mr Docwra for the Commission submitted that on his reading of the material there is no identification that the man asked for help in relation to mental health issues when he approached XKB on [redacted].
  12. [43]
    In my view it need not matter that the man did not specify to XKB the type of help he required because the man indicated to XKB that he was [redacted]. The reasonable inference to be drawn based on the material before me is that the man approached XKB for help on [redacted] because the man indicated to XKB that he was not coping.
  13. [44]
    In the oral hearing, Mr Docwra, for the Commission, conceded that it was entirely appropriate for XKB in the circumstances to make contact with the man through [redacted]. Mr Docwra submitted, however, that it was no longer the responsibility of XKB when he returned to duty on [redacted] to make the inquiry or investigate the matters brought to his attention on [reacted]. Mr Docwra said that after returning to duty on [redacted], the responsibility for the matters brought to XKB’s attention on [redacted] fall to the officers already investigating the [redacted] matters.
  14. [45]
    For reasons discussed below any failing on XKB’s part to document or refer his concerns about the man are not determinative of a finding of misconduct for Matter 1(a) and (b). It is non-controversial that XKB sent the man [redacted] and the man did not respond. XKB maintains his evidence that he accessed QPRIME because of his concerns for the man’s mental wellbeing.

Further summary of XKB’s evidence relevant to his conduct

  1. [46]
    On [redacted], XKB says that he held concerns about the man’s mental wellbeing after he saw [redacted].[37] XKB says that this Facebook post [redacted] heightened his concerns about the man’s mental health and [redacted].[38] Further to that, [redacted]. XKB says he was growing increasingly concerned about the man’s health referring to his presentation [redacted]. XKB explains the reasons why he made the search on [redacted]. The relevant extract from XKB’s statement [redacted] is set out below:

….Conscious that [the man] had sought my help [redacted], I conducted a QPRIME check on [the man’s] name. I was attempting to ascertain his mental health status, such as whether there were any previous emergency examination orders, as it was my intention to go and see him and urge him to attend a doctor or hospital if needed. I noted there had been no such referrals, [redacted] and to ascertain the details of any police that had previously dealt with him, so I could contact them and have them assist if an EEO was appropriate. I located the name of the police officer that had attended the [redacted] and wrote his name on some blotting paper next to my work computer. I recall his name being Senior Constable [BA].

Before I had had a chance to further consider what to do about [the man’s] welfare, I noticed a missed call on my mobile from [the man] at 12:07 hours. I telephoned him back and we spoke for almost 24 minutes. This was the first conversation we had since [redacted]. During the call he sounded less emotional and upset than when I had seen him on [redacted], somewhat allaying my fears concerning his immediate health and safety…[39]

  1. [47]
    There is corroborating evidence from other police officers relevant to XKB’s reasons for the search and XKB’s relationship with the man.

Summary of the corroborating evidence from officers

  1. [48]
    [Officer NSH] attended [redacted] and witnessed [redacted].[40] NSH heard XKB make a number of comments in relation to the [redacted] such as, amongst other things, XKB ‘categorically’ denied disclosing any information on QPRIME, XKB referred to the incident at [redacted] said that he did the QPRIME checks because he was concerned about [the man’s] welfare and he was looking for warning flags. XKB was concerned about the man turning [redacted]. The man subsequently called XKB and he (XKB) never called [the man]. XKB said the man [redacted]. XKB said that he flatly refused to provide information and made it clear to [the man] that there were severe consequences for doing so and he would not. XKB said that the allegation would damage his career and stated on numerous occasions that he had not released any information to the male person.[41]
  2. [49]
    [Officer MCK] attended [redacted].[42] MCK said that XKB categorically denied any release of information. XKB said he had been approached by [redacted]. XKB said that [the man] asked for information where he responded that he could not do that, he would lose his job. XKB said he had done nothing wrong and that his actions were appropriate and that any knowledge he had of [redacted] and not from any release of information.[43]
  3. [50]
    [Officer SQK] [redacted].[44] SQK said that XKB told him he had been approached by [the man] a few weeks earlier [redacted]. XKB said [the man] was in a bad way mentally, stating he had been [redacted]. XKB said the man [redacted]. XKB said when at work next he accessed QPRIME to check the male for mental health warnings and flags. XKB said he saw that police [redacted] but did not access the occurrence of [redacted]. XKB said a few days later [the man] contacted him seeking XKB to check to see if [redacted]. XKB stated he declined to do this citing it was unlawful and there had been plenty of [redacted]. XKB said he had offered to help [the man] with other advice so [the man] [redacted]. XKB was adamant that he had only accessed [the man’s] profile on QPRIME for mental health flags and that this was definitely accessed prior to [the man] ringing him to ask for assistance about the existence or otherwise of a [redacted]. XKB said he had never shared any information from QPRIME with this male, nor had he accessed the [redacted].[45]

Consideration of the evidence relevant to XKB’s conduct

  1. [51]
    On balance I am satisfied that XKB accessed QPRIME because of the concerns he held about the man’s mental wellbeing. XKB consistently maintains that he held concerns about the man’s mental health and that is why he did the search. Indeed the searches done on QPRIME by XKB support XKB’s assertions about the reasons why he accessed the information, that is out of concern for the man’s mental health. Relevantly, XKB  did not conduct any searches on [redacted]. XKB only accessed information about the man.
  2. [52]
    Further to that, XKB explains that when he spoke to the man on [redacted], the man sounded less emotional and upset allaying his fears concerning the man’s immediate health and safety.

Summary of the relevant police powers and functions of an officer to offer assistance and render help

  1. [53]
    I accept, as submitted by Mr Cranny at the oral hearing, that the functions of the police service as prescribed under the PSA Act specifically provide for offering assistance to members of the community and rendering help as sought.
  2. [54]
    Relevantly, s 2.3(g) of the PSA Act, as current at the relevant time, provides that the functions of the police service are, amongst other things, the provision of the services, and the rendering of help reasonably sought, in an emergency or otherwise, as are-
    1. (i)
      required of officers under any Act or law or the reasonable expectations of the community; or
    2. (ii)
      reasonably sought of officers by members of the community.
  3. [55]
    In the present matter, at the time XKB conducted the search on QPRIME he was [redacted], a police officer for all purposes and [has] the functions and powers of a police officer.[46]
  4. [56]
    I accept Mr Cranny’s oral submission made at the hearing that XKB was bound to assist the man having held genuine concerns for the man’s mental health.[47]
  5. [57]
    Although, as submitted by Mr Docwra for the Commission at the oral hearing, there is no evidence before the Tribunal of any documentation or entries made by XKB in respect of the searches done nor steps taken by XKB to notify anyone about the reasons for the searches or the concerns held by XKB, it does not necessarily follow in all of the circumstances of the matter that XKB’s actions are blameworthy.

Summary of the relevant Standard of Practice and Code of Conduct

  1. [58]
    The relevant 2012/33 Standard of Practice (the Standard) and Code of Conduct for police officers undoubtedly holds members of the Service when acting in the public interest to a high level of integrity and accountability. Relevantly, the Standards of Practice and Code of Conduct focus on conduct in respect of official functions.[48] Section 1.2 of the Standard provides that pursuant to s 4.9 of the PSA Act, the provisions of the Standard including directions apply to all members of the QPS defined in s 2.2 of the PSA Act.[49] 
  2. [59]
    Members of the Service are required to familiarise themselves with the Code of Conduct and the Standard to ensure compliance. Contravention of the Code of Conduct and this Standard of Practice by members of the Service may be dealt with by way of disciplinary process through the PSA Act or s 87 of the Public Service Act 2008 (Qld) and in accordance with the Complaints Management Policies.[50]
  3. [60]
    Members of the service are expected, amongst other things, to demonstrate high ethical standards of behaviour both on and off duty.[51] Section 4 of the Standard refers to conflicts of interest and the relevant s 1.2 of the Code of Conduct. The Standard provides, amongst other things, that members are to arrange their private affairs in a manner that will prevent any actual or apparent conflict of interest from arising wherever foreseeable. An apparent conflict of interest exists when it appears that a member’s private interests could interfere with the proper performance of their official duties.[52] An actual conflict of interest exists when a reasonable person, in possession of the relevant facts, would conclude that the member’s private interests are interfering with the proper performance of their official duties.[53]
  4. [61]
    Section 16 of the Standard requires members when dealing with official or confidential information of the QPS not to access, use or release information without an official purpose related to the performance of their duties.[54]
  5. [62]
    In addition to the relevant Standards and Code of Conduct that hold an officer when acting in the public interest to a high level of integrity and accountability, an officer may exercise powers under legislation such as, amongst other things, the PSA Act and [redacted], s 100 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). Under s 100 of the DFVP Act, a police officer is required to take certain action including investigate or cause to be investigated, if the officer reasonably suspects that domestic violence has been committed.[55]

Did XKB fail to take the ‘next step’ or document his concerns?

  1. [63]
    As reflected in the reasons document, whilst the first respondent found that XKB’s access of the QPRIME system was done in the performance of his duties, the first respondent also found XKB’s response to the man’s situation to be lacking. The first respondent said:

On [redacted] and after you spoke with [the man] on [redacted], you made the decision, based on your limited interactions with [the man], that no follow up intervention was required. As an experienced [officer] I would expect you to take proper steps to ensure that the information you had obtained through your interactions with [the man] was passed onto investigating officer. Through QPRIME checks you conducted [redacted] you ascertained the name of the investigating officer, yet you still failed to contact him and advise him of your concerns so that a proper and full assessment could be made. If [the man] did indeed [redacted], your inaction would be under greater scrutiny than it is now.[56]

  1. [64]
    As reflected in the reason document, XKB explains why he did not offer any support referrals to the man. XKB says that he thought the man would resist any referrals for support. The relevant extract from the reasons document that set’s out XKB’s explanation given during the disciplinary interview for not offering any support referrals to the man is now set out below:

The little I do know about [the man] and he’s a [redacted] I don’t think um I don’t think me attempting to have him attend a police station or go through that formal process would have been achieving the outcome that I thought was required. I think he would resist that.[57]

  1. [65]
    Here, XKB is an experienced police officer and is trying to help someone he held concerns about. I am satisfied that XKB was required to assist the man because he held genuine concerns for the man’s wellbeing. XKB did not follow up his concerns about the man nor did he document his concerns about the man. That said, the particulars of Matters 1(a) and (b) do not refer to XKB’s failure to document or refer. Further to that, I do not expect in all of the circumstances of this matter that the community would view XKB’s failure to document or refer his concerns to be misconduct.
  2. [66]
    XKB’s conduct can be distinguished from other cases involving accessing information held on QPRIME without an official purpose that I have been referred to such as Acreman v Deputy Commissioner Pointing[58] and Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2).[59]
  3. [67]
    In Gunter the searches conducted by the subject officer were done on a manager of a building company and its employees or associates. The building company was renovating the subject officer’s house. The searches were conducted in the context of a dispute between the police officer and the building company. The searches were extensive and when asked why he looked up the searches and people, the police officer explained that it was a matter of habit. The Appeal Tribunal found that the searches were done without an official purpose connected to the officer’s duties. The Appeal Tribunal said that in the absence of authorisation of his investigations by his superiors, the QPRIME inquiries cannot reasonably be regarded as being with an official purpose in the performance of his duties as a police officer. The relevant extract of paragraphs [62] and [63] of Gunter are now set out below (footnotes omitted):

Sergeant Gunter’s evidence that he had concerns about the people performing work on his home and that he made the checks for the reasons given in his interview and affidavit does not help him. Sergeant Gunter had at the time of his conduct over sixteen years’ experience as a police officer. Any honest and reasonable mistake that Sergeant Gunter says he had in terms of being entitled to do the searches either because he is always on duty as a police officer or on the basis that the Standard of Practice permits him to do so, does not help him. Nor does Sergeant Gunter’s submission made in the hearing below that, as summarised by the learned Member, Sergeant Gunter said he, as stated, ‘viewed himself as a police officer 24/7’.

Neither the provisions of the Police Service Administration Act 1990 (Qld) nor the common law concerning the duties of constables confers a power upon police officers to undertake investigation of suspected criminal offences at their own whim without regard to the hierarchy of police service command. Even if Sergeant Gunter’s explanation for his QPRIME inquiries regarding other persons is accepted at face value, such inquiries were not in the performance of his duties as a police officer. He was not allocated such investigations by his superior officers and did not seek the permission of his superior officers to conduct such investigations. Sergeant Gunter’s status as a police officer did not confer upon him an unlimited power to investigate suspected criminal offences as he saw fit. In the absence of authorisation of his investigations by his superiors, the QPRIME inquiries cannot reasonably be regarded as being with an official purpose in the performance of his duties as a police officer. In the circumstances of this matter, it was not reasonably open to the learned Member to find otherwise.

  1. [68]
    In Gunter v Assistant Commissioner Wilkins & Anor[60] leave to appeal the Appeal Tribunal’s decision to the Queensland Court of Appeal was refused. Sofronoff P with whom Morrison JA and Boddice J both agreed said that the Appeal Tribunal’s reference to the applicant’s lack of instructions or permission to pursue his inquiries was not a statement of law but a statement of fact.[61] Further to that, the Court of Appeal said that the Appeal Tribunal’s ultimate finding that the applicant was not acting in the performance of his duties depended upon a consideration of the applicant’s excuses for his actions, which were matters of fact and which were rejected as insufficient.[62]
  2. [69]
    In Acreman the subject police officer conducted a search on QPRIME about a man he had an off duty interaction with in his private capacity. The subject officer visited the house of the man he conducted the search on. In addressing the issue of unauthorised access, the Appeal Tribunal said that the question to be determined was whether, after later returning to duty, the subject officer acted on his concerns about the complainant’s violent propensities in an official capacity.[63] The Appeal Tribunal held that even if the information he become aware of in his private capacity was worthy of police investigation, it was not his role at the CCC to investigate it. The Appeal Tribunal found that the proper course was for the subject officer to report the assault (or other criminal activity or intelligence) to an officer at the relevant police station. The relevant extracts from paragraphs [60] to [63] of Acreman are set out below (footnotes omitted):

It is undisputed that the incident with the complainant occurred when Mr Acreman was acting in a private capacity and that his concerns arose from those events. With respect, the Tribunal’s discussion about whether police officers were always on duty and whether, when off duty, an officer had a legal duty in negligence to act, as was considered in the decision in Peat v Lin which the Tribunal relied upon, was not the issue here. The question here was whether, after later returning to duty, Mr Acreman acted on his concerns about the complainant’s violent propensities in an official capacity.

Mr Acreman’s submission is to the effect that he was obliged by his oath of office to do so. He suggests in effect that if it was not so, even if an officer became aware of serious criminal behaviour in his private life, he could not act upon it.

The problem with that proposition is that in the course of their duties, police officers are tasked with particular functions at any given time depending upon the position held. As identified earlier, Mr Acremen was on secondment to the CCC as Inspector Integrity Services at the time of the QPRIME access in question. Even if the information he became aware of in his private capacity was worthy of police investigation, and notwithstanding the common law duties of every constable discussed by the Tribunal, it was not his role at the CCC to investigate it. [63] In our view, consistent with the Deputy Commissioner’s reasons for decision, the proper course was for him (or any officer who finds themself in Mr Acreman’s position or who becomes aware of criminal activity or intelligence while off duty) is to report the assault (or other criminal activity or intelligence, as the case may be), like any other member of the public, to an officer at the relevant police station or police unit whose responsibility it is to take any necessary and appropriate action and to deal with and investigate such issues or activity.

  1. [70]
    In the present matter XKB does not conduct an investigation but makes an inquiry on QPRIME in relation to the status and health of a person he held concerns about. As discussed above, there is no dispute or conflict between XKB and the man, the man approached XKB because he is a police officer and the man wanted help.
  2. [71]
    I do not accept, as submitted by Mr Docwra for the Commission at the oral hearing, that XKB [redacted]. Here, it is XKB who holds the concern for the man because of his interaction with the man in his private capacity. XKB makes the inquiry and is satisfied after speaking to the man on [redacted] that no further action is necessary.

Further consideration of Matter 1(b) and the requirement to manage any conflict of interest

  1. [72]
    As discussed above, the relevant Standard of Practice and Code of Conduct applies and, amongst other things, requires members of the Service to manage any conflict of interest.[64] Any failure to disclose and manage the conflict appropriately is likely to be a wrong doing.
  2. [73]
    I do not accept, however, as submitted by Mr Docwra for the Commission at the oral hearing, that there [redacted]. Further to that, I do not accept, as submitted by Mr Docwra that because of the personal relationship between [redacted] that there was an apparent conflict of interest.
  3. [74]
    The fact that there is a relationship is not determinative of a conflict of interest. It may, as submitted by Mr Cranny for XKB at the oral hearing, give cause for self-inspection or consideration. Here, the relationship between XKB and the man does not meet the test.
  4. [75]
    In Acreman and Gunter there was an apparent conflict of interest because in each case the subject police officer did the relevant searches in the background of a dispute. In the present matter, XKB did the search because he held concerns about the man’s mental health or wellbeing.
  5. [76]
    In my view it is too remote to say that there was a potential for XKB [redacted]. The man did not tell XKB about the [redacted], XKB did not search or look at the man’s [redacted] matters on QPRIME.
  6. [77]
    Further to that, the relevant information concerning the witnesses referred to in the [redacted] giving rise to the complaint to the QPS could only have been known by the man on a date after XKB did the search on QPRIME.[65] The reasonable inference to be drawn is that XKB is not the source of any alleged information said to have been provided to the man about any [redacted] complaint.
  7. [78]
    XKB did not know the man other than [redacted]. XKB was looking to render assistance to the man. After making the search, XKB was satisfied that he did not need to do anything further.
  8. [79]
    There is no dispute between XKB and the man and no benefit to be gained until [redacted], when the man requested XKB’s assistance and XKB declined to render it. There is no detriment to the [redacted] and no suggestion of a complaint about XKB from [redacted].
  9. [80]
    The requirement to self-report a conflict of interest arises when there is one. Here, there is no conflict of interest. Accepting, as found by the first respondent, that XKB failed to follow up or document his concerns, is evidence that XKB could have, as accepted by XKB, done things better.
  10. [81]
    In my view there is no failure by XKB to report his concerns in the context of a conflict of interest because there is no conflict of interest. XKB’s failure to report or document his concerns about the man is not conduct that is morally blameworthy such that it attracts a finding of misconduct.[66] XKB is not charged with a failure to document or refer his concerns about the man’s status and wellbeing. XKB is an experienced police officer who held concerns about a person’s wellbeing. Those concerns came about because XKB was approached by the man who knew XKB was a police officer and the man wanted help. On balance I accept XKB’s explanation for his conduct, that he made the inquiry on QPRIME because of his concerns about the man.
  11. [82]
    I am not satisfied that Matters 1(a) and (b) are proven to the required standard. The correct and preferable decision is to confirm the decision of dated 15 December 2020 that Matters 1(a) and 1(b) are not substantiated. I order accordingly.

Non-publication order

  1. [83]
    Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) permits the Tribunal to prohibit publication of confidential information or information whose publication would be contrary to the public interest, or for any other reason in the interests of justice.
  2. [84]
    By order dated 20 January 2021, the Tribunal is prohibited from publishing the contents of a document or thing filed in the Tribunal or produced and the evidence given before the Tribunal that could lead to the identification of XKB or any third party to the proceeding.
  3. [85]
    It is appropriate in this matter to redact certain information that may lead to the identification of XKB or any third party to the proceeding. The Tribunal will produce two sets of reasons. One set of reasons to be released to the parties only and another set of reasons for publication that will redact any information that could identify XKB or any third party to the proceeding including relevant particulars of the charge.

Footnotes

[1]  Disciplinary Proceeding Notice dated [redacted], exhibit 1, p 1.

[2]  Exhibit 1.

[3]  Reasons document, [24].

[4]  Ibid, [40].

[5]  Applicant’s preliminary statement of issues filed in OCR021-21.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19 (‘QCAT Act’) and see the Crime and Corruption Act 2001 (Qld) (‘CC Act’), s 452. The matter proceeds under the statutory framework as amended by Police Service Administration (Disciplinary Reform) and Other Legislation Amendment Act 2019 (Qld) and effective from 30 October 2019.

[7]  Material filed by the respondent in accordance with s 21(2) of the QCAT Act (‘section 21 material’). See CC Act, s 219H.

[8] Aldrich v Ross [2001] 2 Qd R 235, 257-258 (Thomas J).

[9] Murray v Deputy Commissioner Stewart [2011] QCAT 583, [40] (Hon JB Thomas).

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

[11] Police Service Administration Act 1990 (Qld), s 1.4 (definition of ‘misconduct’).

[12]  [2016] QCATA 123.

[13]  [2008] QSC 209.

[14]  Ibid, [5].

[15]  Ibid, [6] and see Pillai v Messiter (No 2) (1989) 16 NSWLR 197.

[16] Crime and Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409, Ibid, [66].

[17]  Ibid, [66].

[18]  See Schauer v Banham Misconduct Tribunal – Appeal No. 11 of 1996.

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

[20]  [2021] QCATA 133, [60] to [63].

[21]  [2021] QCATA 42.

[22]  See written outline of submissions on behalf of the applicant filed 29 June 2021 (‘applicant’s submissions’) and written outline of submissions in reply on behalf of the applicant filed 20 August 2021 (‘applicant’s reply’).

[23]  See outline of submissions of the second respondent filed 16 July 2021 (‘XKB’s submissions’), [17]. The relevant PSA Act current as at [redacted] 2019 applies.

[24]  See Commissioner of Police v Antoniolli [2021] QCA 237, [79].

[25]  Applicant’s submissions, [82].

[26]  Exhibit 1, p 1.

[27]  XKB’s submissions filed 16 July 2021, [2].

[28]  Ibid.

[29]  Exhibit 1, transcript of interview on [redacted], p 256, p 263, p 265-266.

[30]  Ibid.

[31]  Ibid, p 91.

[32]  Transcript of [redacted] on [redacted], p 283 and p 286-287.

[33]  Ibid.

[34]  Ibid, p 87.

[35]  See statement dated [redacted], p 149-152 and disciplinary interview on [redacted], p 259.

[36]  Ibid.

[37]  Exhibit 1, statement of XKB dated [redacted], p 150.

[38]  Exhibit 1, police disciplinary interview dated [redacted], p 260.

[39]  Exhibit 1, statement of XJB dated [redacted], p150-152

[40]  Exhibit 1, p 93 to p 96.

[41]  Exhibit 1, p 93 to p 96.

[42]  Ibid, p 115 to p 118.

[43]  Ibid.

[44]  Ibid, p 102 to p 105.

[45]  Exhibit 1, p 102 to p 105.

[46]  [redacted]. See applicant’s submissions filed, [54].

[47]  See s 2.3 of the PSA Act.

[48]  Exhibit 2, p 5.

[49]  Ibid.

[50]  Ibid.

[51]  Ibid, p 6.

[52]  See Definition 1.1 and 1.2, exhibit 1, p 22.

[53]  Ibid.

[54]  Exhibit 1, p 15.

[55]  See Domestic and Family Violence Protection Act 2012 (Qld), s 100 and the applicant’s submissions, p 18.

[56]  Exhibit 1, p 33 (reasons document p 12).

[57]  Ibid, p 12 and see interview, p 263.

[58]  [2021] QCATA 133.

[59]  [2021] QCATA 42.

[60]  [2021] QCA 274.

[61]  Ibid, [9].

[62] Gunter v Assistant Commissioner Wilkins & Anor, [9].

[63]  Ibid, [60].

[64]  Exhibit 2, p 59 and see PSA Act, s 1.4, s 4.9, s 7.1 and s 7.2.

[65]  See [redacted], Exhibit 1, p 60 and p 256.

[66] Shauer v Baham – Appeal No. 11 of 1996.

Close

Editorial Notes

  • Published Case Name:

    Crime and Corruption Commission v Chief Superintendent Horton APM & Anor

  • Shortened Case Name:

    Crime and Corruption Commission v Chief Superintendent Horton APM

  • MNC:

    [2021] QCAT 437

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    20 Dec 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Acreman v Deputy Commissioner Pointing [2021] QCATA 133
3 citations
Jump To
Cite 1 - [2021] QCATA 133
Cite 2 - [2021] QCATA 133
Cite 3 - [2021] QCATA 133
Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright (No 2) [2020] QCAT 426
1 citation
Jump To
Cite 1 - [2020] QCAT 426
Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
2 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Assistant Commissioner Brian JA Wilkins v Gunter (No. 2) [2021] QCATA 42
3 citations
Jump To
Cite 1 - [2021] QCATA 42
Cite 2 - [2021] QCATA 42
Cite 3 - [2021] QCATA 42
Assistant Commissioner Hollands v Tolsher [2016] QCATA 123
2 citations
Jump To
Cite 1 - [2016] QCATA 123
Cite 2 - [2016] QCATA 123
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
Commissioner of Police v Antoniolli [2021] QCA 237
2 citations
Jump To
Cite 1 - [2021] QCA 237
Cite 2 - [2021] QCA 237
Crime & Misconduct Commission v Assistant Commissioner J P Swindells [2009] QSC 409
2 citations
Jump To
Cite 1 - [2009] QSC 409
Cite 2 - [2009] QSC 409
Gunter v Assistant Commissioner Wilkins [2021] QCA 274
2 citations
Jump To
Cite 1 - [2021] QCA 274
Cite 2 - [2021] QCA 274
Mathieu v Higgins [2008] QSC 209
2 citations
Jump To
Cite 1 - [2008] QSC 209
Cite 2 - [2008] QSC 209
Murray v Deputy Commissioner Stewart [2011] QCAT 583
2 citations
Jump To
Cite 1 - [2011] QCAT 583
Cite 2 - [2011] QCAT 583
Pillai v Messiter (No.2) (1989) 16 NSW LR 197
2 citations
Jump To
Cite 1 - (1989) 16 NSW LR 197
Cite 2 - (1989) 16 NSW LR 197

Cases Citing

Case NameFull CitationFrequency
ABC v Assistant Commissioner Maurice Carless [2023] QCAT 852 citations
HTI v Carless [2025] QCAT 202 citations
Vercoe v Deputy Commissioner Taylor [2025] QCAT 581 citation
1

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