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- Unreported Judgment
Baragan v State of Queensland QCAT 202
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Baragan v State of Queensland & Ors  QCAT 202
State of Queensland
27 May 2022
10 February 2020
11 February 2020
12 February 2020
13 February 2020
14 February 2020
3 June 2020
4 June 2020
5 June 2020
4 February 2021
The application is dismissed.
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – contention public interest disclosures made under Public Interest Disclosure Act 2010 (Qld) – whether conduct official misconduct – whether conduct maladministration – whether disclosure made as alleged and within the requirements of the Act
TORT – REPRISAL – whether detriment caused because of a public interest disclosure
Anti-Discrimination Act 1991 (Qld), Chapters 6 and 7
Child Protection Act 1999 (Qld) (Reprint No. 7), s 5A, s 5B(c), s 28, s 97(5)
Crime and Corruption Act 2001 (Qld), s 13, s 14, s 15
Crime and Misconduct Act 2001 (Qld), s 13, s 15
Criminal Code Act 1899 (Qld), s 200
Police Service Administration Act 1990 (Qld), s 7.2, s 10.1
Public Interest Disclosure Act 2010 (Qld), s 6, s 7 s 12, s 13, s 17, s 36, s 39, s 40, s 44, s 45, Schedule 4
Briginshaw v Briginshaw (1938) 60 CLR 336, 362
Burns v Australian National University (1982) 61 FLR 76
Luxton v Vines (1952) 85 CLR 352
R v Purdon  QSC 128
C Murdoch QC with him C Martin, Counsel for the respondents instructed by Crown Law
REASONS FOR DECISION
- By s 44 of the Public Interest Disclosure Act 2010 (Qld) (PID Act), the Applicant Mr Baragan has made a complaint under the Anti-Discrimination Act 1991 (Qld) about a reprisal. His complaint is dealt with under chapters 6 and 7 of the Anti-Discrimination Act 1991 (Qld) as if the complaint were about an alleged contravention of the Anti-Discrimination Act 1991 (Qld).
- A complaint was lodged with the then Anti-Discrimination Commission on 3 July 2015. The matter was referred to the Tribunal and received on 13 June 2016.
- A decision of the Tribunal made on 1 May 2019 ordered that the complaint proceed by reference to certain items set out in a Schedule filed on 29 March 2018. Subsequently an amended statement of facts and contentions was filed dated 6 September 2019 and the respondents’ filed a statement of facts and contentions in response. This matter has been determined by reference to the issues raised in those documents following a nine day hearing.
- A non-publication order has been made to ensure non-disclosure of documents or evidence which may identify children, accused persons or witnesses in relation to offences against children being investigated by Child Protection Investigation Unit officers.
- Mr Baragan alleges that he made six public interest disclosures and that the Respondents took fourteen reprisals against him in contravention of section 40(1)(a) of the PID Act. The claim is pleaded in such a way that conduct said to be an alleged reprisal may also be characterised as a public interest disclosure.
- Mr Baragan asserts that as a result of the reprisals he has suffered loss and damage. He seeks damages for past and future economic loss, damages for hurt, humiliation and distress and an order that he receive a letter from the First Respondent stating that he has been fully exonerated from the allegations that formed the basis of a search conducted pursuant to a search warrant on 14 December 2012. Mr Baragan also seeks an order for payment of his legal costs.
- Mr Baragan was sworn in as an officer of the Queensland Police Service (QPS) on 23 May 2001. He worked at the South Brisbane District Child Protection Investigation Unit (CPIU) as a plain clothes constable from 28 April 2007. Between 28 April 2007 and 10 January 2012, he was assigned to work at the Upper Mount Gravatt office of the CPIU as a plain clothes investigator. Between 10 January 2012 and 23 November 2012 Mr Baragan was assigned to work at the Morningside office of the CPIU. On 24 October 2012 Mr Baragan was appointed as a Police Detective. On 28 November 2012 Mr Baragan was assigned to general uniform duties. He has been absent from work as a result of ill health since October 2019.
- The 2nd to 6th Respondents were at all relevant times serving police officers with the QPS. I intend no disrespect to the respondents, however in view of their changing ranks and official designations over time, I intend to refer only to their rank and designation at a given point in time and not thereafter.
- By s 6 of the PID Act, the QPS is a public sector entity. By s 7 of the PID Act, Mr Baragan was at all relevant times a public officer, being an employee of the QPS.
- The following matters fall for determination:
- (a)Have public interest disclosures been made within the terms of s 12(1)(d), (2) and (3) of the PID Act? That is, relevantly:
- has Mr Baragan made disclosures under s 17 of the PID Act to a proper authority with a procedure for the making of a public interest disclosure or to a person who directly or indirectly supervises or manages him or to an officer of the QPS who has the function of receiving or taking action on the type of information disclosed (s 12(2));
- do the disclosures relate to information about the conduct of another person that could, if proved, be a reprisal (s 12(1)(d));
- does Mr Baragan honestly believe on reasonable grounds that the information tends to show conduct that if proved could be a reprisal; or does the information of itself tend to show the conduct (s 12(3));
- does the conduct disclosed fall within s 40 of the PID Act as a reprisal, that is, a detriment to Mr Baragan, because:
- –he has made a public interest disclosure, or
- –that is a substantial ground for the act or omission that is the reprisal?
- (b)Have public interest disclosures been made within the terms of s 13 of the PID Act? That is, relevantly:
- has Mr Baragan made disclosures under s 17 of the PID Act, to a proper authority with a procedure for the making of a public interest disclosure, or to a person who directly or indirectly supervises or manages him, or to an officer of the QPS who has the function of receiving or taking action on the type of information disclosed (for example an officer of the QPS ethical standards unit);
- Relevant to the period before 7 November 2014, prior to amendment of s 13 of the PID Act, do the disclosures relate to information about conduct of another person that could, if proved, be conduct which is official misconduct as defined by the Crime and Misconduct Act 2001 (Qld) (CMC Act) (s 13(1)(a)(i)):
Conduct is relevantly defined as the performance of a person’s functions, as the holder of an appointment, in a way that is not honest or is not impartial; or a misuse of information acquired in connection with the performance of the person’s functions, whether the misuse is for the person’s benefit or the benefit of someone else. (s 14 CMC Act)
Official misconduct is conduct that could if proved, be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person’s services (s 15 CMC Act);
- Relevant to the period from 7 November 2014, after amendment of s 13 of the PID Act, does any disclosure relate to information about the conduct of another person that could, if proved be conduct which is corrupt conduct as defined by the Crime and Corruption Act 2001 (Qld) (CC Act) (s 13(1)(a)):
Conduct is relevantly defined to include neglect, failure and inaction; conspiracy and attempt to engage in conduct (s 14 CC Act).
Corrupt conduct is relevantly defined to mean (s 15 CC Act):
- (a)conduct which adversely affects the performance of functions of a person holding an appointment, and
- (b)results or could result directly or indirectly in the performance of functions or the exercise of powers in a way that is
not honest or impartial or involves a misuse of information or material acquired in or in connection with the performance of functions of a person holding an appointment, and
- (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
- (d)would if proved be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person’s services;
- Do the disclosures relate to information about the conduct of another person that could, if proved, be maladministration as defined in the PID Act, that adversely affects a person’s interests in a substantial and specific way (s 13(1)(ii)):
Maladministration is relevantly defined as administrative action that:
- (a)was taken contrary to law; or
- (b)was unreasonable, unjust, oppressive, or improperly discriminatory; or
- (d)was taken for an improper purpose; or on irrelevant grounds or having regard to irrelevant considerations; or
- (g)was wrong.
Administrative action is relevantly defined (Schedule 4), as any action about a matter of administration including:
- –a decision and act; and
- –a failure to make a decision or do an act,
- –the making of a recommendation.
and does not include an operational action of a police officer or of an officer of the Crime and Misconduct Commission?
- Does Mr Baragan honestly believe on reasonable grounds that information he has disclosed tends to show the conduct or other matter; or does the information of itself tend to show the conduct or other matter (s 13(3))?
- (c)Has Mr Baragan been caused adetriment as defined in Schedule 4? Relevantly:
- personal injury;
- intimidation or harassment;
- disadvantage or adverse treatment about career, profession or employment;
- financial loss;
- damage to reputation, including, for example, personal, professional or business reputation.
- (d)Has a reprisal occurred within s 40, that is a detriment has been caused to Mr Baragan, because he has made a public interest disclosure, or that is a substantial ground for the act or omission that is the reprisal?
- (e)Is the State of Queensland vicariously liable for any reprisal taken by the second, third, fourth, fifth and sixth respondents?
- (f)If Mr Baragan is successful what relief is he entitled to?
QPS procedure for making a public interest disclosure
- The best evidence in the proceeding as to the QPS procedure for making a public interest disclosure came from the respondents Mr Winter and Mr Stewart. In summary, Mr Winter said that a complaint is made through lodging a Q466 form which is a report about misconduct. That report is then allocated for investigation. The Q466 report can be lodged by the person making the complaint or another officer. Mr Stewart said the process is that officers report the matter to their senior officer or ethical standards, or to the Crime and Corruption Commission to ensure anything reported is investigated. He confirmed that the person to whom the complaint has been made is able to also lodge that complaint on behalf of the person who made it.
- I find that the process for making a public interest disclosure in the QPS is as described by Mr Winter and Mr Stewart.
- Mr Baragan asserts that the first public interest disclosure was made:
- (a)in writing in an email dated 22 August 2011 from Mr Baragan to his then superior, Detective Senior Sargent Darryl Dunlop, Officer in Charge, CPIU, South Brisbane District, and
- (b)orally in a telephone conversation on 22 August 2011 and in person at a meeting in Mr Dunlop’s office on 23 August 2011.
- The email is comprised of a Department of Child Safety Intake Advice Form (or SCAN Report) sent by email from Mr Baragan to Mr Dunlop on 22 August 2011 at 11:08pm.
- Mr Baragan’s evidence is that he spoke to Mr Dunlop on 22 August 2011. That conversation gave rise to the email sent to Mr Dunlop later that night. A further discussion with Mr Dunlop took place on 23 August 2011 in Mr Dunlop’s office at approximately 8:00am.
- Mr Baragan says that the public interest disclosure was as follows:
- (a)on or around 19 August 2011, an 11-year-old girl (the child) was taken into temporary care by child safety services within the (then named) Department of Communities (DOCS) pursuant to the Child Protection Act 1999 (Qld).
- (b)On or around 19 August 2011 the child’s 32-year-old brother (the accused) was charged with the rape and incest of his (and the child’s) 15-year-old sister (the older sister) following a complaint made by the older sister to police on or around 11 August 2011 (the Complaint).
- (c)Up until the time she was taken into the care of DOCS, the child resided with the accused and he was her legal guardian.
- (d)The older sister’s complaint to police included allegations to the police that the accused had had sex with her from the age of approximately 12 years old; that he had gotten her pregnant twice, resulting in an abortion both times; and that he had infected her with chlamydia at least once;
- (e)Mr Baragan’s investigations of the accused’s medical history established that he had received repeated treatment for chlamydia;
- (f)The older sister’s complaint to the QPS also included a statement that the child had told the older sister that the accused had:
- taken her clothes off, and
- digitally penetrated the child’s vagina; and
- the older sister was concerned the accused either had or would sexually molest the child (the Concerns).
- (g)Because of the matters in sub-paragraphs (a)-(f) above, Mr Baragan was concerned that the child may have been sexually abused by the accused, and further that the child may have acquired a sexually transmitted disease as a result of that sexual abuse;
- (h)On or around 19 August 2011, upon Mr Baragan’s request, an officer of DOCS obtained a “Temporary Assessment Order” (TAO) under the Child Protection Act 1999 (Qld) from a Queensland Magistrate, pursuant to which:
- the child was to be taken into the custody of DOCS; and
- the child was to be medically examined at the Mater Hospital child abuse unit (MHCAU)
- (i)The TAO was due to expire on Monday 22 August 2011;
- (j)Between Friday 19 August 2011 and Sunday 21 August 2011 inclusive, employees of the Upper Mount Gravatt office of DOCS repeatedly assured the applicant that the child would be medically examined at the MHCAU pursuant to the TAO;
- (k)On Monday 22 August 2011, the applicant had a telephone conversation with a DOCS employee, Ms Kylie Ormsby (Acting Team Leader, Investigation and Assessment Team, Mount Gravatt Child Safety Service Centre, DOCS) wherein,
- Ms Ormsby stated that officers of the QPS has taken a 93A statement from the child who had not made any disclosures about the accused having taken her clothes off or digitally penetrating her;
- Ms Ormsby stated that DOCS had made a decision that the child would not be medically examined pursuant to the TAO as a medical examination would be too intrusive;
- Mr Baragan asked for a copy of the TAO and for details of the child’s location;
- Ms Ormsby stated she would not give Mr Baragan or QPS a copy of the TAO, or details of the child’s location, and further that DOCS would not give Mr Baragan or QPS access to the child;
- Ms Ormsby stated that upon expiry of the TAO, the child would be returned to the custody of the accused; and
- Ms Ormsby stated that DOCS would not apply for an extension of the TAO;
- (l)Mr Baragan was concerned in light of the existing evidence that returning the child to the care of the accused without a proper medical examination would subject the child to an unacceptable risk of sexual harm.
- (m)Mr Baragan was concerned that returning the child to the care of the accused could hinder his investigation, should the accused coerce the child into not providing evidence to the QPS.
- (n)Mr Baragan believed that Ms Ormsby, by her conduct in sub paragraphs k (ii), (iv), (v) and (vi) was:
- acting in breach of a court order (that is the TAO);
- acting unlawfully;
- acting unreasonably; and
- not acting in the best interests of the child; and
- obstructing his investigation into the accused’s conduct in relation to both the child and older sister;
- (o)Arising out of the matters described in sub-paragraphs (a) to (n) above, Mr Baragan wanted to investigate a possible criminal prosecution of Ms Ormsby for a breach of:
- section 200 of the Criminal Code Act 1899 (Qld) (Refusal by public officer to perform duty) and/or;
- section 790 of the Police Powers and Responsibilities Act 2000 (Qld) (Obstruct Police).
- I note that the Intake Advice Form attached to the email to Mr Dunlop does not name Ms Ormsby it simply refers to the actions and advice of DOCS.
- At 9.03 am on 23 August 2011 Mr Baragan attached a copy of the Intake Advice Form to an email address to BrisbaneRISintake, with the message:
Serious concerns are expressed regarding the decisions made by staff at UMG DOCS in relation to the safety of a child involved in this matter and associated risk of evidence loss.
- I also note that the same Intake Advice Form was sent by general distribution email to “CPIU South Brisbane District” on 23 August 2011 at 9.32 am, under the subject heading “Concerning Actions by UMG DOCS in rape matter – FYI (Dorin Baragan). The message includes:
I wanted to share this concern that I have regarding DOCS involvement in one of my recent matters.
I believe that as investigators you should all be aware of these potential risks when involving, inviting involvement or being made – through course of process – to involve UMG DOCS in your investigations…
- The Intake Advice Form and accompanying emails do not set out Mr Baragan’s desire to investigate a possible criminal prosecution of Ms Ormsby. I infer that Mr Baragan named Ms Ormsby in his conversations with Mr Dunlop.
- In Mr Baragan’s amended statement of facts and contentions he asserts that initially during their face to face discussions on 23 August 2011, Mr Dunlop advised him that he could pursue a criminal prosecution of Ms Ormsby if he felt he had sufficient evidence to do so, but then, later on 23 August 2011 Mr Dunlop advised Mr Baragan that he could not take such action because it would likely impair the relationship between QPS and DOCS. Following that direction Mr Baragan says that he took no further steps in relation to a prosecution of Ms Ormsby for any criminal offence.
Did the First Disclosure occur as alleged?
Evidence of Dorin Baragan
- Mr Baragan provided an affidavit dated 18 November 2019. The affidavit traverses Mr Baragan’s conversations with Mr Dunlop.
- Mr Baragan sets out that, during the evening of 22 August 2011 he telephoned Mr Dunlop and they had a conversation where the substance of Mr Baragan’s telephone conversation with Ms Ormsby on 22 August 2011 was relayed.
- Mr Baragan’s statement confirms that at 11:08pm on 22 August 2011 he sent an email to Mr Dunlop. The email contained a copy of the SCAN report, a summary of his investigations into the accused, and an outline of his interactions with DOCS regarding the matter together with an outline of his concerns that the conduct of DOCS had the potential to jeopardise both the welfare and safety of the child, as well as the status of the QPS investigation into the accused.
- Mr Baragan says that on 23 August 2011 he arrived for a shift at the Upper Mount Gravatt CPIU at 8:00am and saw Mr Dunlop already in his office. He went into Mr Dunlop’s office and had a conversation with Mr Dunlop. It is said that Mr Dunlop asked what happened with DOCS. Mr Baragan attributes to Mr Dunlop the words: “I agree. Refusing you access to the child was highly inappropriate.”; “I certainly think that she did the wrong thing and I’m certainly not going to tell you how to do your job. You can pinch her as long as you have enough evidence”; “like I said, I’m happy for you to pinch her just as long as you have enough evidence. Why don’t you go out and check for the TAO and then come back and speak with me. Make sure you don’t pinch Kylie before you come back and speak with me”; “that’s alright Dorin, I have faith in your work, I’ll go make some phone calls, make sure you return to the office and see me before you see Kylie”.
- Mr Baragan says that his last comment in that conversation was: “okay sure thing boss, I think the charge of Obstruct Police under the PPRA 2000 might be appropriate or alternatively we could look at section 200 under the Criminal Code… at any rate, I’ll make those checks and get back to you.”
- Later in his affidavit, Mr Baragan says that he took advice from operational legal advice and prepared two “Notices to Appear” forms in relation to Ms Ormsby. The first was for an offence of “obstruct Police” and the second for “failing to fulfil function”. He says that he then approached Mr Dunlop to present to him the evidence he had collected as requested.
- In that conversation, Mr Dunlop indicated that Mr Baragan should not “pinch Kylie.” Mr Dunlop told Mr Baragan that DOCS had their own method of assessment; that he spoke with DOCS this morning and they promised to have the child urine tested.
Evidence of Darryl Dunlop
- Mr Dunlop provided an affidavit in the proceeding.
- Mr Dunlop is now retired from the QPS. At the time, Mr Dunlop managed all CPIU staff within the South Brisbane District, including Mr Baragan at the Upper Mount Gravatt office.
- Mr Dunlop’s evidence does not differ from Mr Baragan’s in relation to their discussion on 22 August 2011, the request for a SCAN report, provision of that report to him and the fact that conversations were held between them on 23 August 2011.
- The evidence of Mr Dunlop differs from Mr Baragan’s evidence in relation to when Mr Dunlop says that he heard about Mr Baragan’s plan to charge Ms Ormsby. Mr Dunlop says that was on 23 August 2011 when he was in his office at Morningside CPIU and overheard a police officer, whose name he cannot recall, talking to another police officer, whose name he cannot recall, outside his office saying words to the effect: “can you believe Baragan wants to charge Kylie Ormsby?”
- Mr Dunlop says that when he heard this, he asked the police officers what they were talking about and then drove straight to the Upper Mount Gravatt CPIU to talk to Mr Baragan.
- Mr Dunlop says that Mr Baragan’s intention to issue a notice to appear against Ms Ormsby was common knowledge amongst the staff of the CPIU.
- Mr Dunlop says that he spoke to Mr Baragan in an open office. He did not recall many staff being present. He said words to the effect: “what’s going on? I heard you’re going to charge Kylie Ormsby? You haven’t done it yet have you? Don’t do it.”
- Mr Dunlop gives evidence of explaining to Mr Baragan that it was not appropriate to threaten or plan to charge a DOCS worker with obstruction in relation to a disagreement about matters on which QPS work with DOCS and that disagreements are resolved through working together, talking it through and going to SCAN meetings. He says that he said it was okay for QPS and DOCS to disagree but it would be extraordinary to charge a child safety officer in relation to such a disagreement, especially given the close working relationship between DOCS and the QPS.
- Mr Dunlop’s evidence is that he said to Mr Baragan “we’re not charging them, we have to work with them.”
- Mr Dunlop says Mr Baragan told him the Magistrate had ordered forensic medical examination of the child. Mr Dunlop says that Magistrates simply give authority for certain things to occur, they do not order that they must happen. He thought that Mr Baragan mistakenly thought that the medical examination was a requirement of the TAO or that he could demand the child undergo a medical examination by virtue of the TAO. Mr Dunlop said that he did not seem to appreciate or understand that DOCS had legal custody and the ultimate say with respect to forensic medical examinations of children in their care. Mr Dunlop said that he tried to explain this during their conversation.
- Mr Dunlop expressed the view that, aside from the inappropriate nature of his intention, it was not open to Baragan to charge Ms Ormsby with obstructing a police investigation. This was because Ms Ormsby’s refusal to subject the child to a forensic medical examination did not amount to obstruction as she was not under any legal obligation to submit the child for the procedure. Mr Dunlop says that under s 97(b) of the Child Protection Act 1999 (Qld), the decision as to whether a child who is in the custody of the chief executive and the subject of a TAO is to undergo an invasive medical examination rests with the chief executive. I note that is not what section s 97 of that Act provides. The section provides that if a child is in the custody of the chief executive and the chief executive seeks a medical examination, then a health practitioner may do so if that is reasonable in all the circumstances.
- Mr Dunlop recalled that the matter of subjecting the child to a forensic medical examination was discussed with the Suspected Child Abuse and Neglect Unit (SCAN) at the Mater Hospital Child Protection Unit and that a decision was subsequently made by DOCS not to conduct a forensic medical examination as it is extremely invasive.
- Mr Dunlop says that on 23 August 2011, Ms Ormsby contacted him to discuss Mr Baragan’s insistence that the child be subjected to a forensic medical procedure. Mr Dunlop agreed with Ms Ormsby that, in the circumstances, it was not appropriate for the child to undergo the forensic medical procedure as the child had not made any reports of abuse. Mr Dunlop says that in accordance with s 28 of the Child Protection Act 1999 (Qld), DOCS is the lead agency in child protection and by virtue of the legislation, has the authority to authorise what medical examinations they deem necessary for children in their custody.
- Mr Dunlop says in his affidavit that in a telephone conversation at the time, with Mr Boyle, a Senior Practitioner at DOCS, Mr Boyle was supportive of a suggestion that the child undergo an STD test in the interests of the child’s health, but not to prove one way or another that the child had been interfered with. Mr Dunlop says that it was DOCS decision to conduct an STD test and that as lead agency, they made the decision about what was appropriate for the child’s care in this instance.
- The difference in recollection of Mr Baragan and Mr Dunlop as to the events of 23 August 2011 were put to Mr Dunlop in cross-examination. Mr Dunlop acknowledged that he asked Mr Baragan to send him the Intake Advice Form or SCAN referral. He acknowledged that it was possible that he had glanced at it on 23 August 2011.
- He acknowledged that it was possible Mr Baragan and he met in the morning of 23 August 2011 at Upper Mount Gravatt CPIU.
- The cross-examination revealed that Mr Dunlop was struggling to recall the order of events and what had occurred some 8 years earlier.
- Mr Dunlop confirmed in cross-examination that the first he heard of Mr Baragan charging Ms Ormsby was when he overheard a conversation at the Morningside Police Station. He said regardless of the conversation held in the morning of the 23rd of August 2011, it was the first he heard of the issue, when he overheard people in the office on that day.
- In response to questions from me, Mr Dunlop confirmed that he had asked Mr Baragan for a report in relation to the evidence he had to charge Ms Ormsby. He confirmed that he was not enthusiastic about the prospect.
- I find that disclosure in the terms set out in Mr Baragan’s amended statement of facts and contentions was made to Mr Dunlop, on the basis that it is consistent with the SCAN report provided to Mr Dunlop at his request and is consistent with Mr Baragan’s recollection of his discussions with Mr Dunlop. To the extent that there is a difference in recollection I prefer the evidence of Mr Baragan because of his detailed recollection set out in his affidavit. I note that even on Mr Dunlop’s version there is basic agreement as to the issues raised with him, including a discussion about charging Ms Ormsby because he did at some point request a report as to available evidence to charge Ms Ormsby.
Has a public interest disclosure been made within the terms of s 13 of the PID Act?
Disclosure under s 17 PID Act
- I find that Mr Baragan made the First Disclosure to Mr Dunlop and that as required by s 17 of the PID Act, Mr Dunlop was his manager and a person to whom a disclosure could be made. That is not a finding that a public interest disclosure has been made.
- I note that Mr Dunlop said in cross-examination that he did not know he was a proper authority for receiving a public interest disclosure. I do not consider Mr Dunlop’s ignorance alters the fact that a disclosure was made within the terms of the PID Act.
Does the First Disclosure relate to information about Ms Ormsby, which could be official misconduct or maladministration?
- By way of background to the contact between Mr Baragan and Ms Ormsby in relation to the child, Mr Dunlop attaches to his affidavit an email exchange between Mr Baragan and Ms Ormsby.
- I note that at 2:17pm on 12 August 2011, Ms Ormsby e-mailed Mr Baragan and asked for clarification that a 93A interview was conducted with the child making no disclosures of sexual abuse, said that at this time, there are no significant concerns for the welfare of the child to remain in the suspect’s care given her presentation today. Ms Ormsby said: “should you have any concerns in relation to (the child) being sexually abused by (the suspect) after this interview today, I need to know immediately to ensure child safety takes appropriate action.”
- At 5:16pm on 12 August 2011, Mr Baragan e-mailed Ms Ormsby saying: “my understanding is that (the child) made no disclosures whatsoever regarding sexual abuse to CPIU officers today 12 August 2011.”
Evidence of Kylie Fairhurst (née Ormsby)
- Ms Fairhurst gave an affidavit in the proceeding. Ms Fairhurst’s affidavit records that at the relevant time she was an acting team leader for the investigation and assessment team at the Mt Gravatt Child Safety Service Centre (CSSC). Her evidence is that:
- (a)On 12 August 2011 Mr Baragan, another officer of the CPIU and one of Ms Fairhurst’s team interviewed the child in accordance with s 93A of the Evidence Act 1977. The child made no disclosures regarding sexual abuse.
- (b)On 20 August Child Safety After Hours Service Centre applied for and was granted a Temporary Assessment Order (TAO) for the child, following the child’s older brother being charged with counts of rape and incest in relation to the child’s older sister on 19 August 2011. The child was removed and placed with her step-mother and the Chief Executive was granted custody of the child for the period of the TAO, being 3 days. The TAO was made on 20 August 2011. The TAO authorised a medical examination or treatment of the child. The TAO did not require the CSSC to authorise an invasive internal examination on the child.
- (c)Over the week-end of the 20th of August, 2011 Ms Fairhurst discussed the matter with the staff of the Child Safety After Hours Service and agreed that no internal medical examination of the child was to occur.
- (d)She would have sought advice from a DOCS Court Officer or Senior Practitioner in response to Mr Baragan’s request for a copy of the TAO. A copy was not provided.
- (e)As to Mr Baragan’s request for the location of the child, she believed he knew that because he transported the child to the placement with her step-mother. She never told Mr Baragan that he could not have access to the child but cannot recall with any certainty what she told him about the child’s location.
- (f)Mr Baragan informed her that he wanted the child to have internal examination based on his view that she had been digitally penetrated. To her knowledge, Mr Baragan did not have any power to require the child to be medically examined.
- (g)She did not think it was necessary for the child to undergo an invasive, internal medical examination. The child did not allege that she had been sexually assaulted. She was not shown any other evidence to support the assertion that the child had been sexually assaulted. In those circumstances, there was no reason for CSSC to present the child for an invasive internal examination to check whether that might have occurred. Ms Fairhurst consulted with a Doctor or Nurse at the Mater Hospital, Child Protection Unit and discussed the information. This person agreed that this level of testing is invasive and unlikely to show injury to the area that could clearly link sexual abuse.
- (h)Even if the child had alleged sexual assault, which she did not, in her opinion it would have been inappropriate to subject her to an invasive internal examination. In those circumstances the child safety officer in her team and the CPIU could have acted upon disclosures alone.
- (i)She told Mr Baragan that his proposal for an invasive internal examination was inappropriate and it was not necessary as it was unlikely there would be physical evidence of rape (if this had occurred) and the examination would have caused undue distress for a 12 year old child, taking into consideration her age, developmental stage and vulnerability.
- (j)She told Mr Baragan that the Department would not apply for an extension of the TAO. She did not tell him the child was being returned to the care of her older brother. The child remained with the step-mother and the Department remained involved with the family in some capacity.
- (k)She was contacted by Mr Dunlop who suggested that the child provide a urine sample to test if she had contacted a sexually transmitted disease. The test was performed and gave a negative result which was advised to Mr Baragan.
- Ms Fairhurst said that she cannot think of another case in which a QPS officer has proposed to arrest an employee of a CSSC. She expressed the view that when CSO’s do a joint investigation with QPS, all parties need to have mutual respect and trust, so they have the support of each other at all time. That includes being confident that “your colleagues will not arrest you for just doing your job.”
- Attached to Ms Fairhurst’s affidavit at KF-3 is a copy of the TAO made on Saturday 20 August 2011at 4:45pm. The TAO provides in relation to the child, amongst other authorities an “authority for a medical examination or treatment.”
- In cross examination, Ms Fairhurst was taken to a statement of a Church Minister, Louise Edwards forming part of Mr Baragan’s investigation in relation to the potential of sexual abuse of the child and which set out Ms Edward’s concerns about sexual abuse of the child and the basis of her concerns. That statement was not previously known to Ms Fairhurst. Despite that person’s statement, Ms Fairhurst said that she was not open to persuasion on the topic, that she had already determined that an internal examination would not occur. Ms Fairhurst said that she did not make the decision in isolation but consulted other people.
- In cross-examination Ms Fairhurst agreed that the police can apply for a TAO, that they are empowered by the Child Protection Act 1999 (Qld) to have access to a child and that they have a right to present a child subject to a TAO to a medical professional for examination. Ms Fairhurst agreed that was the case in consultation with whoever has custody of the child, and in this case it was the Chief Executive, not the police.
- In re-examination, Ms Fairhurst confirmed that in relation to stating that nothing Mr Baragan could have told her would have altered her mind in respect of the child having an invasive examination, she confirmed that it is traumatic for a 12-year-old child to go through a medical examination to that level when medical practitioners would say it is unlikely that you could use this examination to determine whether sexual abuse has occurred. Ms Fairhurst said that she did consult with Queensland Health around that and that was their recommendation.
- Ms Fairhurst’s evidence is supported by the evidence of Ms Sturrock, Mr Boyle and Ms Masters.
Evidence of Margaret Sturrock
- Ms Sturrock has provided an affidavit in the proceeding. At the relevant time Ms Sturrock was a Child Safety Officer with the Child Safety After Hours Service Centre.
- Ms Sturrock made an application for a TAO over the child on 20 August 2011. She attaches a copy of the documentation associated with obtaining the TAO and the TAO to her affidavit.
- In cross examination she maintained that if a child is in DOCS custody the police would have to talk to them if they wanted a medical examination.
Evidence of Christopher Boyle
- Mr Boyle was at the relevant time a Senior Practitioner in DOCS, CSSC, Mr Gravatt.
- Mr Boyle was familiar with the case and gave evidence as to the nature of a TAO. His evidence is that the discretion to act under a TAO’s authorisation is always left to the DOCS worker to determine in consultation with the relevant expert health care professionals.
Evidence of Kathryn Masters
- Ms Masters provided an affidavit in the proceeding.At the relevant time Ms Masters was Acting Regional Director, Brisbane Region, Child Safety, Youth and Families.
- Ms Masters sets out in her affidavit the purpose of a TAO and discusses arrangements for a medical examination of a child. She said that a TAO allows for a medical examination. It does not mean a medical examination must be conducted. She said that Department staff must have formed a reasonable suspicion that a child has been the subject of sexual assault to justify an examination to determine whether a child has been sexually assaulted.
- I find that Ms Fairhurst had a reasonable basis for her decision not to have the child undergo an internal medical examination. I find that Ms Fairhurst’s conduct was the result of the exercise of a professional judgment in performance of her role as a child safety officer with responsibility for the child, including whilst the child was in the custody of the chief executive.
- I do not consider that Ms Fairhurst’s conduct, as defined in the Crime and Misconduct Act 2001 (Qld), involves any dishonesty, lack of impartiality or misuse of information acquired in connection with the performance of her functions. Accordingly, I do not consider that there is any conduct which could be official misconduct, that is the basis for a criminal offence or a disciplinary breach providing reasonable grounds for terminating her employment.
- As to whether Ms Fairhurst’s conduct could if proved be maladministration, I consider that the decision made by Ms Fairhurst falls within the definition of administrative action insofar as it involved a decision and act, the making of a recommendation and an action taken because of a recommendation.
- The definition of administrative action in the PID Act pre-supposes an understanding of what administrative, as opposed to other forms of action, might be. The question has been considered in other contexts. A useful explanation is:
…decisions made in the exercise of statutory power conferred by statute.
- I find that the decision not to have the child internally examined was an administrative decision taken pursuant to the Child Protection Act 1999 (Qld).
- I do not consider that the decision could be said to fall within the definition of maladministration in the PID Act. In particular, I do not think the evidence supports a finding that the decision, from the lowest bar, was unreasonable or wrong, nor from the highest bar that it was taken contrary to law or was taken for an improper purpose.
- I do not consider, on the basis of her evidence, that Ms Fairhurst’s decision could be characterised as maladministration through the criminal conduct alleged by Mr Baragan, that is, obstructing police or refusal by a public officer to perform their duty.
- That is not an end of the enquiry. Despite finding that Ms Fairhurst’s conduct does not if proved amount to official misconduct or maladministration, the disclosure made to Mr Dunlop by Mr Baragan may still be a public interest disclosure under s 13 of the PID Act if Mr Baragan honestly believed on reasonable grounds that the information he disclosed tends to show the conduct, that is official misconduct or maladministration.
- On the basis of Mr Baragan’s evidence, particularly his earnest and impassioned demeanour when giving evidence, I consider that his beliefs have at all times been honestly held. The case he promulgates in relation to the first disclosure is largely set out in the contemporaneous Intake Advice Form provided to Mr Dunlop and widely circulated to CPIU South Brisbane District.
- As to whether Mr Baragan held his belief on reasonable grounds is another matter. I do not think the grounds relied upon by Mr Baragan were reasonable for these reasons:
- (a)there were other reasonably available means of assessing whether the child had been the victim of sexual abuse, including a urine test for sexually transmitted disease as was undertaken at the suggestion of Mr Dunlop.
- (b)Although Mr Baragan had further evidence about risk of sexual abuse to the child from the Church Minister Ms Edwards, he did not disclose it to Ms Fairhurst, once it came to hand.
- (c)Ms Fairhurst gave him rational reasons for not agreeing to the medical examination, as set out in Ms Fairhurst’s evidence.
- (d)Objectively, internal examination of a 12-year-old refugee child would likely be traumatic. A child safety officer is best placed to reach that conclusion given her statutory obligations to consider the best interests of the child.
- (e)There was no guarantee that such an examination would reveal evidence of sexual abuse of the child, which might justify putting the child through the experience.
- (f)There was no reason why Mr Baragan could not continue to work with the Department to assess the welfare of the child and to try and locate other forms of evidence.
- (g)Although Mr Baragan had an expectation that the TAO required a medical examination and that he could require that the examination take place, he was mistaken. The application form for the TAO and the TAO itself refer only to authorisation of a medical examination. Mr Baragan was told this was the case by Ms Fairhurst on 22 August 2011. Any medical examination must take place in accordance with the Child Protection Act 1999 (Qld), which does not give Mr Baragan the over-arching power he wrongly considered that he had as an investigating officer. Mr Baragan could, with reasonable enquiry, have confirmed this information.
- (h)Although Mr Baragan thought a TAO was in place on 19 August 2011 when the child was taken from her home, he was mistaken. Mr Baragan could have established that was the case with reasonable enquiry.
- I find that the First Disclosure was not a public interest disclosure under s 13 of the PID Act because the information disclosed did not demonstrate official misconduct or maladministration; and although Mr Baragan held an honest belief that the information did disclose maladministration, the belief was not based on reasonable grounds.
- I also find that the information does not of itself tend to show conduct which may be official misconduct or maladministration.
Effect of finding on allegations of reprisals.
- Mr Baragan complains that he suffered reprisals as a result of having made the First Disclosure.
- As a result of my finding that the First Disclosure was not a public interest disclosure within the terms of the PID Act I am unable to find that reprisals have occurred, as alleged by Mr Baragan, because he made a public interest disclosure.
- Despite that finding, I will set out the evidence in relation to the matters said to be reprisals because the evidence provides the factual context for what later happened to Mr Baragan, and to the consideration of whether he has been the subject of reprisals as a result of other public interest disclosures.
The Unlawful Disclosures
- Mr Baragan asserts that the conduct of then Detective Senior Constable Everett and/or then Detective Sergeant Fairhust was unlawful, a breach of duties, QPS policies and procedures, the QPS code of conduct and serious misconduct.
- It is alleged that Mr Everett told Mr Fairhurst the substance of Mr Baragan’s First Disclosure, including materially - Mr Baragan’s discussion with Mr Dunlop about a potential prosecution of then Ms Ormsby, because Mr Everett knew that Mr Fairhurst and Ms Ormsby were in a relationship. Mr Fairhurst then repeated to Ms Ormsby the substance of Mr Baragan’s First Disclosure, including materially Mr Baragan’s discussion with Mr Dunlop about a potential prosecution of Ms Ormsby.
Evidence of Timothy Francis Everett
- Mr Everett provided an affidavit in the proceedings. His evidence is that he came to know Mr Baragan when he was a plain-clothes Senior Constable at Upper Mount Gravatt CPIU in 2008. Between August and December 2011, Mr Everett was a Detective Senior Constable at the Morningside CPIU.
- Mr Everett swears that in 2011 and 2012 he was good friends with his colleague Mr Fairhurst. Mr Fairhurst and Ms Ormsby were in a romantic relationship at that time. Sometime between August 2011 and December 2011 Mr Everett says that he became aware Mr Baragan had formed the intention to formally charge a child services officer from the Department of Communities and Child Safety Services (DOCCSS). Mr Everett does not recall who told him, but he recalled general banter amongst staff members in the office. He was certain he did not hear this information from Mr Baragan or Mr Dunlop.
- Mr Everett’s recollection is that:
- (a)Mr Baragan had formed the opinion that a DOCCSS officer was obstructing his investigation into the sexual abuse of a female child by her older brother; that Mr Baragan believed that it would stand to reason that if the brother had offended against one sister then the brother may have offended against the girl’s younger sister who was 11 years of age at the time.
- (b)Mr Baragan was desirous of strengthening his case against the offending brother by conducting a full sexual assault investigation kit (SAIK) examination of the younger female in the hope that such an examination would yield evidence of further sexual abuse by the offending brother.
- (c)The 11-year-old female sibling/sister had not made any disclosures of being sexually abused at the time of Mr Baragan’s desired action to conduct a SAIK.
- (d)Mr Baragan needed consent from DOCCSS as the child was in their custody at the time by virtue of temporary assessment order issued by Magistrate under the Child Protection Act 1999 (Qld).
- (e)When Mr Baragan’s suggested course of action for the 11-year-old female to undergo a SAIK examination was rejected by DOCCSS Mr Baragan became disgruntled.
- (f)Mr Baragan considered that the DOCCSS Officer’s actions in not allowing the child to be examined was obstructing him in his duties by preventing the collection of possible evidence; and
- (g)Mr Baragan had actually written out a notice to appear for the particular DOCCSS Officer in preparation or service of the document on the particular DOCCSS Officer.
- Mr Everett in his affidavit makes comments in relation to his view that on the information provided to him, Mr Baragan’s proposed course of action was misplaced. Importantly, Mr Everett acknowledges speaking to DS Fairhurst about the matter. His affidavit is vague as to date and time. He cannot recall whether it was he or Mr Fairhurst who initiated the conversation.
- Mr Everett recalls raising with Mr Fairhurst a criticism of Mr Baragan’s proposed course of action.
- Later, Mr Everett participated in an internal investigation into “some of Baragan’s work practices” conducted by Inspector Laurie Sturgess. Mr Everett raised his concerns in that interview. Attached to Mr Everett’s statement is a transcript of a record of interview between Inspector Sturgess and Mr Everett dated 18 December 2012. The transcript records that a range of issues were raised with Mr Everett. Mr Everett apparently took with him to the interview a number of dot points he wanted to cover related to Mr Baragan’s general demeanour. He said that “there’s been some long time concerns about his mental stability and his general air of superiority.” He made no mention of Mr Baragan’s proposal to charge Ormsby or his own role in disclosing that information.
- In cross examination I asked Mr Everett whether he disclosed to Mr Fairhurst that it was Ms Ormsby who was to be the subject of a notice to appear or some prosecution.
- Mr Everett responded that to his knowledge and recollection Mr Fairhurst was already aware. He said “we just had a conversation about the general banter that he was aware, I was aware, that we’d heard that it was Ms Ormsby that was the subject person.”
- It was put to Mr Everett that an email was sent on 23 August 2011 at 9:32am to the entire South Brisbane district child protection unit headed “concerning actions by UMG DOCS” and attached the SCAN referral (Intake Advice Form) prepared by Mr Baragan. Mr Everett denied seeing the document. Mr Everett read the document when put to him at the hearing. He confirmed that Ms Ormsby’s name was not mentioned. He confirmed that the document did not say that Mr Baragan was going to arrest Ms Ormsby or to prosecute her.
- In evidence, Mr Everett said that all he heard was “that you were going to issue a notice to appear – had written out a notice to appear for Ms Ormsby for obstructing you in your investigation”.
- Mr Everett denied having heard of the Public Interest Disclosure Act until being asked to be a witness in the matter and he did not recall any training in relation to the Public Interest Disclosure Act. Mr Everett suggested that he thought a Public Interest Disclosure might be “some disclosure should be entitled to the public”.
- Despite having no knowledge of the Public Interest Disclosure Act and not being able to define a public interest disclosure Mr Everett nevertheless swears in his affidavit that he did not believe Mr Baragan had ever made any public interest disclosures and as a result could not have taken any action against him for that reason.
- In all, Mr Everett’s evidence was unsatisfactory as to how he knew Ms Ormsby was the subject of Mr Baragan’s complaint. He appeared to have a detailed knowledge of the matter from “office banter” but does not in his affidavit admit to telling Mr Fairhurst that it was Ms Ormsby who was the subject of Mr Baragan’s complaint. At the hearing he suggested that was knowledge already known by Mr Fairhurst. There is a conflict with the evidence of Mr Fairhurst discussed later in this decision.
- Mr Everett swears that he was never disciplined about disclosing information to any other person, pertaining to this incident or any other incident.
Evidence of Mr Fairhurst
- Mr Fairhurst provided an affidavit in the proceedings. Mr Fairhurst is no longer a member of the QPS.
- Mr Fairhurst’s evidence is that he was a senior colleague of Mr Baragan in his capacity as a Detective Senior Constable, South Brisbane CPIU in the years 2009 and 2010. He says that by August 2011 he had been in a relationship with Ms Ormsby for about two years and he was good friends with Mr Everett. He said that most, if not all, of the South Brisbane CPIU knew of his relationship with Ms Ormsby.
- Mr Fairhurst swears that on a date sometime between August 2011 to December 2011 Mr Everett telephoned him whilst he was at work in Coomera and informed him that Mr Baragan was either on the telephone, or was going to get on the telephone, to one of the QPS telephone operators and lodge an occurrence event (a report recorded and processed through the QPS event recording system) that Ms Ormsby was suspected of committing an offence. Mr Fairhust says that Mr Everett also informed him it was discussed within the office that Mr Baragan wanted to charge Ms Ormsby for obstructing a police investigation. The details were not discussed with him as to what led to this.
- Mr Fairhurst recalled Mr Everett saying that he asked Mr Baragan or one of his work colleagues who was discussing the events, words to the effect of “What does Kylie Ormsby have to do with this?” and “It’s not an offence, you can’t do that.”
- Shortly after Mr Everett told him these things, Mr Fairhurst called Ms Ormsby and told her what he had just discovered. Mr Fairhurst says he told Ms Ormsby because he was concerned for her welfare.
- Mr Fairhurst gives evidence of the process followed if there was an issue between South Brisbane CPIU officers and DOCS officers regarding an investigation. He says that negotiations between the South Brisbane District CPIU Officer in Charge and the DOCS Manager would occur to resolve the issue. If there were issues with a DOCS officer’s conduct regarding their statutory responsibilities, formal processes would occur with a referral to DOCS Ethical Standards section, allowing that agency to investigate.
- Mr Fairhust says that he was internally disciplined by the QPS for informing Ms Ormsby of Mr Baragan’s plan to arrest her. He was interviewed by Inspector Kemp in the second half of 2012, and was informed that he was internally disciplined. He could not recall what his actual sanction was.
- Mr Fairhurst says that he does not now and has never believed that Mr Baragan made any public interest disclosures, so he could not have taken any action against Mr Baragan for that reason.
- In cross examination Mr Fairhurst confirmed that despite being disciplined as a result of unlawful disclosure he nevertheless secured higher duties to act as Senior Sargent of the entire South Brisbane CPIU.
- In cross examination Mr Fairhurst gave evidence that he took the matter no further after speaking to Ms Ormsby. He said that he left the matter to Mr Everett to handle.
- I found Mr Fairhurst to be a straightforward witness. He did not avoid acknowledging his disclosure to Ms Ormsby.
- The lack of clarity in relation to the date on which the disclosures were made by Mr Everett to Mr Fairhurst is concerning. The evidence of Mr Fairhurst as to Mr Baragan being on the telephone, actively lodging an occurrence report, suggests that the contact between Mr Everett and Mr Fairhurst was in August 2011 as events were unfolding. There is also an inconsistency between the evidence of Mr Everett and Mr Fairhurst as to what disclosure was made by Mr Everett to Mr Fairhurst. I prefer the evidence of Mr Fairhurst.
Evidence of Ms Fairhurst
- Ms Fairhurst swears that in or around September/October 2011 her partner told her that he had heard from his colleague at work, believed to be Timothy Everett, that Mr Baragan wanted to arrest her for obstructing a police investigation and had drafted a warrant for that purpose.
- Ms Fairhurst reported that information to her supervisors Ms Gill and Mr Boyle and her superior Ms Robinson.
- Mr Baragan questioned Ms Fairhurst as to how she knew that he was contemplating investigating her criminally for obstructing him from taking the child to the child abuse unit for examination.
- Ms Fairhurst said that she received a phone call from Adam Fairhurst. She said that she had no idea about dates and it could have been any date on which she received the call.
- Ms Fairhurst said that immediately after the telephone conversation with Adam Fairhurst, she told her manager and a senior practitioner what he had said.
- I find on the basis of Mr Fairhurst’s evidence that an inference can be drawn that Mr Everett made his telephone call to Mr Fairhurst in late August 2011 around the time Mr Baragan was considering charging Ms Ormsby with obstructing his investigation.
- I find that Mr Everett disclosed to Mr Fairhurst that Mr Baragan was considering charging Ms Ormsby arising out of the investigation related to the child. I find that Mr Fairhurst disclosed that information to Ms Ormsby immediately thereafter.
The DOCS Complaint
- It is alleged by Mr Baragan that on 6 December 2011 Ms Loretta Robinson, Acting Manager of the Child Safety Service Centre at the Upper Mount Gravatt Office of DOCS wrote to DSS Dunlop and said;
- (a)in August 2011, during a joint investigation between DOCS and the QPS, Mr Baragan had sought to have the child internally examined despite there being “no information to suggest she had been sexually abused”.
- (b)Ms Ormsby made a decision that the child would not be internally examined and she explained that decision and her rationale to Mr Baragan.
- (c)Mr Baragan did not agree with Ms Ormsby’s decision and sought alternative methods in which to have an examination of the child conducted.
- (d)Mr Baragan sought to have a warrant issued for the arrest of Ms Ormsby for obstructing a police investigation.
- (e)Only through the intervention of Mr Baragan’s senior officer was the process halted.
- (f)After DOCS were informed of the matters in sub-paragraphs (d) and (e) above:
“A decision was made by staff from the Mount Gravatt SCCS with the support of A/Regional Director, Kathy Masters, that they will no longer work with Mr Baragan in his role as a CPIU officer as a lack of trust and confidence in him”
- (g)While consideration had been given to working towards a resolution of these issues, it was not possible to discuss issues with Mr Baragan because he redirects any calls made by the Mount Gravatt SCCS to the Morningside CIPU or stated he was too busy.
- (h)Mr Baragan “speaks openly of his dislike for child protection work”; and
- (i)Mr Baragan: “demonstrates a lack of insight into the complexities of child protection work and how this may impact on the experience of our children, young people, and families that we engage with”.
- Further, on 14 December 2011 Ms Robinson lodged a formal complaint with the QPS alleging that Mr Baragan:
- (a)inappropriately sought to charge an employee of DOCS for obstructing him in the conduct of his duty by not conducting a medical examination of the child;
- (b)attempted to avoid child protection investigations by directing calls for service from the centre away from the Upper Mount Gravatt child protection and investigation office to the Morningside office; and
- (c)commented about child protection work to the staff from the centre.
Evidence of Loretta Robinson
- Ms Robinson gave an affidavit in the proceeding. At the relevant time Ms Robinson was acting manager at the Mount Gravatt CSSC.
- Ms Robinson confirmed in her affidavit that she had a conversation with Ms Ormsby when she began acting as manager in approximately November 2011. The conversation related to the situation which had developed between Ms Ormsby and Mr Baragan. Ms Ormsby told Ms Robinson that she and other CSO’s at Mount Gravatt did not feel comfortable working with Mr Baragan.
- Ms Robinson wrote to DSS Dunlop on 6 December 2011 following a meeting with him and another CSSC practitioner Mr Chris Boyle on 6 December 2011.
- In cross examination, Ms Robinson confirmed that she did not know anything about the particular investigation concerning the child in question. Upon being pressed by Mr Baragan in relation to the categorical nature of the letter of 6 December 2011, expressing the view that the Mount Gravatt CSSC will no longer work with Mr Baragan in his role as CPIU Officer, due to a lack of trust and confidence in him, Ms Robinson indicated that she would now write the letter in different terms to simply look for a resolution.
- Ms Robinson confirmed in cross examination that she did not speak to any of the team about the complaints they had about Mr Baragan. Ms Robinson confirmed that Ms Ormsby was the only source of her information.
- Ms Robinson agreed in cross examination that she did not probe to see if the information was correct, as she understood that an officer had issued a warrant for Ms Ormsby’s arrest.
- It was put to Ms Robinson that she was wrong in her understanding that an arrest warrant had been issued by Mr Baragan. Ms Robinson said that Ms Ormsby informed her that she was aware an arrest warrant had been issued for her.
- I found Ms Robinson to be an honest witness. She was prepared to modify the position set out in her affidavit to more correctly reflect her knowledge of the facts.
Evidence of Christopher John Boyle
- Mr Boyle provided an affidavit in the proceeding.
- Mr Boyle was at the relevant time a Senior Practitioner in DOCS, CSSC, Mount Gravatt.
- Because of his role Mr Boyle was aware of the investigation in relation to the child and he had been told by Ms Ormsby about the disagreement with Mr Baragan in relation to medical examination of the child. Ms Ormsby also told him that Mr Baragan intended to charge her for obstructing a police investigation.
- He does not recall the date, but Mr Boyle telephoned Mr Dunlop to ask what was going on as a result of his concern as to Mr Baragan’s behaviour in respect of the child and because of what Ms Ormsby had told him about Mr Baragan intending to charge her for obstructing a police investigation. He was told that a warrant was not going to be issued. I note from Mr Dunlop’s evidence that the call with Mr Boyle occurred on 23 August 2011.
- Mr Boyle escalated the matter internally to Mrs Robinson. On 6 December 2011, a meeting was attended by Ms Robinson, Mr Boyle and Mr Dunlop whereafter a formal complaint was lodged and request made that Mr Baragan not be involved in any joint investigations with the CSSC at Mount Gravatt as the level of trust DOCS staff had for Mr Baragan had deteriorated.
- Mr Boyle was provided with a letter dated 4 April 2012 from BJ Carter, Acting Assistant Commissioner, Metropolitan South Region advising that an investigation has been carried out by Detective Inspector Kemp, advising that Mr Baragan will be provided with managerial guidance and that his performance will be monitored by the Officer in Charge of the South Brisbane CPIU.
- In cross-examination Mr Boyle said he justified his actions in complaining about Mr Baragan because action was taken that would see her potentially handcuffed out of our office in front of her colleagues for simply doing her role.
Further evidence of Ms Fairhurst
- In January 2012, Ms Fairhurst met with Inspector Kemp to discuss the situation with Mr Baragan and the Mount Gravatt CSSC’s decision to no longer work with Mr Baragan. Ms Fairhurst cannot recall what was discussed at the meeting or who else was involved. Ms Fairhurst confirms that she has never been arrested or charged with any offence.
- Following questions by me, Ms Fairhurst said that she did not tell her manager how she wished the matter to be dealt with, however, worries had been raised with her by her team of people in relation to working with Mr Baragan. Ms Fairhurst said these matters were reported to her by her team members. Ms Fairhurst said that the decision not to work with Mr Baragan wasn’t her decision but that it was made by others. She suggested her manager may have made the decision, but she did not know whether it was still Loretta Robinson at the time.
- I found Ms Fairhurst’s explanation of when she was informed of Mr Barragan’s proposal to investigate her and prosecute her, to be very vague and the events which followed in terms of the attitude taken by the Child Safety Office at Mount Gravatt was unsatisfactory. The evidence of Ms Robinson and Ms Fairhurst conflict as to whose decision it was to relay to the QPS that the Mount Gravatt Child Safety Office would no longer work with Baragan. I prefer the evidence of Ms Robinson, because it is broadly consistent with the evidence of Mr Boyle.
Evidence of Mr Dunlop
- Mr Dunlop recalls a meeting in early December 2011 with Mr Boyle and Ms Robinson. In that meeting Ms Robinson advised that a decision had been made by staff from the Mount Gravatt CSSC, with the support of Ms Masters, acting Regional Director, that they would no longer work with Mr Baragan in his role as a CPIU officer, due to the lack of trust and confidence in him.
- Mr Dunlop exhibits a copy of Ms Robinson’s 6 December 2011 letter to his affidavit which was forwarded to Inspector Kemp and a number of other QPS officers by Acting Superintendent David Cuskelly.
- Mr Dunlop says that he does not recall showing Mr Baragan a copy of the letter.
- The complaint was referred to Inspector Kemp to undertake inquiries and conduct an investigation. Mr Dunlop says that he had no role in the investigation.
- Mr Dunlop expresses the view that this was the only time in his whole career when DOCS refused to work with someone. He also says that in his 30 years’ experience, he has never known or heard about a proposed charge being laid by a QPS officer against a child safety officer, apart from Mr Baragan’s proposed charges.
The QPS Investigation into the DOCS Complaint
- Mr Baragan alleges that in approximately mid December 2011 he had a meeting with Mr Dunlop at which time Mr Dunlop told him that:
- (a)an investigation had been initiated by the QPS into the DOCS Complaint;
- (b)Mr Baragan would be temporarily moved to the Morningside Unit of the CPIU for the duration of the investigation of the DOCS complaint; and
- (c)if and when the DOCS complaint was resolved in Mr Baragan’s favour, he would be moved back to the Upper Mount Gravatt Office of the CPIU.
- On 10 January 2012 Mr Baragan was transferred to the Morningside Office of the CPIU.
- Mr Baragan’s evidence is that working from Morningside involved extra travel time from home and that it was difficult for him to manage his family responsibilities as a result. That was one reason why he was very keen to return to Upper Mr Gravatt CPIU.
- Mr Baragan was provided with notification of the result of the investigation into the DOCS complaint by letter dated 4 April 2012, signed by BJ Carter Acting Assistant Commissioner, Metropolitan South Region.
- The notification provides that the complaint was referred to Detective Inspector Kemp from the South Brisbane Police District to conduct preliminary inquiries into the matter. The circumstances were then considered by Mr Carter and the Assistant Commissioner, Ethical Standards, Command.
- The allegation of inaction in relation to attempting to avoid child protection investigations was determined to be unsubstantiated. It was determined that Mr Baragan be provided with managerial guidance in relation to not acting in an adverse manner reflecting on the QPS or themselves as members of the QPS, and performing duties to meet public scrutiny, and relevant standards. Mr Baragan was advised that no further action will be taken, and the matter is now considered finalised. He was told that: “No adverse comment will be made on your personal file.”
- It was during his interview with Inspector Kemp that Mr Baragan learned for the first time that disclosures had been made by Mr Everett to Mr Fairhurst and by Mr Fairhurst to Ms Ormsby about his intention to charge Ms Ormsby with a criminal offence arising out of the investigation into the child.
The Permanent Transfer
- Mr Baragan contends that despite:
- (a)the resolution of the DOCS complaint in his favour;
- (b)Mr Dunlop’s previous verbal assurances to him that the Morningside transfer was temporary only, pending determination of the QPS investigation into the DOCS’ complaint;
- (c)never being advised that the Morningside transfer was permanent;
- (d)the QPS’ failure to follow its own policies and procedures for permanent transfer of him from the Upper Mount Gravatt Office to the Morningside Office off the CPIU;
he was not allowed to return to the Upper Mount Gravatt office of the CPIU and his temporary transfer to the Morningside Office of the CPIU became a de facto permanent transfer.
The Upper Mount Gravatt Rejections
- Mr Baragan asserts that between April 2012 and 23 November 2012 he made numerous requests to be transferred back to the Upper Mount Gravatt office of the CPIU and he applied for numerous relieving and other positions in that office which were all denied by the QPS.
- On 21 November 2012, Mr Baragan submitted to Mr Dunlop an expression of interest in an advertised relieving position at the Upper Mount Gravatt Office of the CPIU, which was unsuccessful.
Appointment as a Detective
- Mr Baragan contends that on 28 July 2012 he submitted an application for appointment as a Detective with the QPS.
- On 18 September 2012 he was interviewed by Inspector Kemp.
- Mr Baragan asserts in his amended statement of facts and contentions that:
- (a)Inspector Kemp stated that the only reason he had “trouble signing off” on Mr Baragan’s detective application was because he considered Mr Baragan was “a Detective Senior Constable who can’t work with DOCS”.
- (b)Mr Baragan replied that he could work with DOCS and had done so before, during and after the DOCS compliant.
- (c)Mr Baragan said in response to Inspector Kemp’s suggestion that he would be difficult with DOCS: “not at all, far be it from my mind”. Baragan asserts he meant that he was enforcing his resolve to work with DOCS.
- (d)Referring to the criteria to be made a detective, Inspector Kemp stated that Mr Baragan “ticked off” those points, but the only point that remained in his mind was whether Mr Baragan was a person who had a “positive attitude towards colleagues, supervisors”, which Inspector Kemp said he considered included external agencies and that he was concerned Mr Baragan was a person who either “refuses or who’s got no faith in DOCS whatsoever”.
- (e)Mr Baragan replied that he would always be and had always been professional in his police practice.
- (f)Mr Baragan asserts Kemp replied sarcastically “sure”.
- (g)Mr Baragan said he had “high standards”; and
- (h)Inspector Kemp replied sarcastically: “I’ve noticed that”.
- Mr Baragan asserts in his amended statement of facts and contentions that, based on the discussion with Inspector Kemp, he was conditionally appointed as a Police Detective on the basis that he would be permitted to perform investigative work as a Detective only for so long as he abided by and did not challenge any decision of DOCS.
- Inspector Kemp has deceased since the commencement of these proceedings and no statement of evidence is available from him.
- However, Mr Dunlop in his affidavit swears to Mr Baragan’s appointment as a Detective and designated rank of Detective Senior Constable. Mr Dunlop says that he supported Mr Baragan’s appointment and attaches a copy of his memorandum to Inspector Kemp, dated 12 September 2012.
- The memorandum is supportive of Mr Baragan’s appointment. In particular, in relation to the issue of a positive attitude towards duties, colleagues, supervisors and members of the public, Mr Dunlop said that Mr Baragan is very respectful of senior officers and that he maintains a very positive attitude to his duties and responsibilities as a police officer.
- A note is made of one occasion where conflict arose with another officer at the Upper Mount Gravatt CPIU officers. No detail is given. It is said that the conflict was managed progressively over time. Mr Dunlop said that Mr Baragan is performing duties at the Morningside CPIU office where he maintains a sound relationship with colleagues.
- Mr Dunlop says that there is no such thing as a conditional Detective appointment. Applicants are either approved or not. Detective appointments are approved by an independent Board in QPS Headquarters. It would not have been within his power or Inspector Kemp’s power to grant an appointment to Detective on any conditions. I accept that evidence and find that Mr Baragan was not appointed as a Detective on a conditional basis.
- On 23 November 2012, Mr Dunlop and Mr Baragan had a conversation at work at the request of Mr Dunlop to discuss some work issues. The issues raised with Mr Baragan were parking his private vehicle in the disabled carpark, playing his violin at work and failure to lodge work performance reports since August 2012. Mr Dunlop raised Mr Baragan’s work list on QPrime and an assault file which had not been actioned since March 2012.
- It is contended that the meeting with DSS Dunlop on 23 November 2012 included a Second Disclosures of public interest disclosures.
- The Second Disclosures are said to be:
- (a)the DOCS complaint only came about because of the unlawful conduct of Everett and Fairhurst in making the unlawful disclosures;
- (b)that he had suffered reprisals as a result of having made the First Disclosure, namely the unlawful disclosures, the DOCS complaint, the QPS investigation into the DOCS complaint, the Morningside transfer, the permanent transfer, and the Mount Gravatt rejections.
- at the time of the Morningside Transfer, Mr Dunlop had promised Mr Baragan that the transfer was to be a temporary one pending the outcome of the QPS’s investigation into the DOCS complaint;
- despite the fact that the QPS’ investigation into the DOCS’ complaint had now been resolved, Mr Dunlop still refused to allow Mr Baragan to return to the Upper Mount Gravatt Office of the CPIU;
- based on Mr Dunlop’s comments, it appeared he had no intention of ever returning Mr Baragan to the Mount Gravatt office of the CPIU and as a result, Mr Dunlop had broken his promise, lied to him, broken his trust, and misled him;
- Mr Baragan believed Mr Dunlop’s position in refusing to allow him to return to the Upper Mount Gravatt office of the CPIU was unfair and unreasonable and that he intended making a complaint about the matter.
Status of the Second Disclosures
- The Second Disclosures are said at paragraph 74 of the Amended Statement of Facts and Contentions to be public interest disclosures.
- I consider that the Second Disclosures raise two possible public interest disclosures. First the complaint that the DOCS complaint only came about because of the unlawful conduct of Mr Everett and Mr Fairhurst. Secondly, a complaint about Mr Dunlop’s conduct in not honouring his alleged promise that Mr Baragan would be returned to the Upper Mount Gravatt office if and when he was cleared by the investigation into the DOCS complaint and further making a blanket transfer refusal on the basis that DOCS staff still refused to work with him.
- I have previously noted that Mr Dunlop was not familiar with the PID Act.
- There is no evidence that Mr Dunlop treated the complaint about Mr Everett and Mr Fairhurst as a public interest disclosure. It was not recorded or referred to Ethical Standards Command.
- I do not consider that the failure of a person, properly in receipt of a public interest disclosure under s 17 of the PID Act, to recognise the disclosure as a public interest disclosure, strips it of its character and force.
Has a public interest disclosure with respect to the conduct of Mr Everett and Mr Fairhurst been made within the terms of s 13 of the PID Act?
Did the Everett and Fairhurst disclosure occur as alleged?
- Mr Dunlop does not recall some aspects of the Second Disclosures. He does however say that Mr Baragan did not mention his co-workers Mr Everett and Mr Fairhurst.
- Mr Dunlop made no concession on that point under cross-examination.
- Mr Cussens, a Plain Clothes Senior Constable at Morningside CPIU is a witness in this proceeding. He overheard the 23 November 2012 meeting between Mr Baragan and Mr Dunlop. He does not refer to any complaint about Mr Everett and M Fairhurst, although he recalled other parts of the exchange.
- Given the conflict in the evidence I am unable to safely find that Mr Baragan did make a disclosure about Mr Everett and Mr Fairhurst to Mr Dunlop on 23 November 2012.
- For that reason, I will not pursue further the question of whether a public interest disclosure was made to Mr Dunlop on 23 November 2012 about the conduct of Mr Everett and Mr Fairhurst.
- It follows that I am unable to find Mr Baragan suffered any reprisal as a result of making that alleged disclosure to Mr Dunlop.
Has a public interest disclosure with respect to the conduct of Mr Dunlop been made within the terms of s 13 PID Act?
- A nice question arises as to whether a public interest disclosure can be made to a person about whom the complaint relates.
- In the context of the QPS it is possible that a disclosure can be made in this way. Mr Baragan submits that Mr Dunlop was bound under s 7.2 of the Police Service Administration Act 1990 (Qld) to report his own alleged misconduct.
- Assuming for the sake of a complete analysis that a disclosure about Mr Dunlop’s own conduct could be made to him under s 17 of the PID Act, I will consider the question of whether a public interest disclosure was made on 23 November 2012.
Did the disclosure about Mr Dunlop’s conduct occur as alleged?
- In relation to Mr Baragan’s move to the Morningside CPIU, Mr Dunlop’s evidence is that he was compelled to move Mr Baragan to Morningside because Upper Mt Gravatt DOCS refused to work with him, and he could not perform his full role if he continued to work from the Upper Mt Gravatt CPIU offices.
- Mr Dunlop does not recall ever saying that if and when the DOCS complaint was resolved in Mr Baragan’s favour he would be moved back to Upper Mount Gravatt CPIU. He says he does not believe he ever said that because it would not be his place to make such a promise and it would be significant and memorable for something like that to be arranged. In any event, Mr Dunlop says that shortly after his retirement in 2012, the Upper Mount Gravatt office was closed.
- In cross-examination Mr Dunlop insisted that he had limited recollection of the words said at the meeting. That is understandable given the events in question occurred approximately 8 years earlier, and by the time of the hearing Mr Dunlop had been retired from the QPS for many years.
- Mr Dunlop did however agree that he told Mr Baragan that he could not go back to Upper Mt Gravatt CPIU because Upper Mt Gravatt Department of Child Safety still refused to work with him.
- No supporting evidence is given as to why it was not a matter for Mr Dunlop to return Mr Baragan to work at Upper Mount Gravatt. It is evident that the primary reason Mr Baragan was not returned to Upper Mount Gravatt CPIU was because of an asserted continuing refusal by DOCS to work with Mr Baragan. There is no evidence as to how Mr Dunlop learned of that continuing attitude, or why the relationship could not be repaired by appropriate communication between senior staff, as one might expect.
- Mr Dunlop’s evidence is that Mr Baragan said words to the effect that he had been wronged and accused him of misleading him. Mr Dunlop said he could not remember exactly what was said but it led to Mr Baragan claiming he had been badly wronged and that Mr Dunlop had misled him.
- I accept the evidence of Mr Baragan that he had been told by Mr Dunlop he could return to Upper Mt Gravatt CIU if he was cleared by the investigation into the DOCS complaint. The statement is consistent with Mr Dunlop recalling Mr Baragan complaining that he had been wronged and misled. It is also consistent with the angry response given by Mr Baragan which led to him saying that he had been lied to, misled and that his trust had been betrayed.
- The evidence as to what was said is also consistent with the decision of Q-Comp made 19 September 2013. The reasons for decision include a conclusion that it was within the prerogative of management to address a complaint made by DOCS with respect to Mr Baragan’s dealings with an employee of their office. However, it was concluded that the manner in which this investigation was handled was unreasonable insofar as Mr Baragan was removed from duties and not returned to his unit following the completion of the investigation, despite no formal disciplinary action taken against him. In view of this, the review officer was not satisfied that management action was reasonable in the circumstances.
- I find that Mr Dunlop’s own conduct was disclosed to him on 23 November 2011 and that was a disclosure as contemplated by s 17 of the PID Act.
Is the Second Disclosure as to Mr Dunlop’s conduct official misconduct or maladministration
- As to whether Mr Dunlop’s conduct is conduct as defined in the Crime and Misconduct Act 2001 (Qld), it is arguable that his conduct was dishonest, however I do not find that representing a person might be returned to a particular station and then refusing to do so amounts to official misconduct. That is, I do not consider that Mr Dunlop’s conduct could, if proved be a criminal offence or a disciplinary breach providing reasonable grounds for terminating his services.
- I find that the second disclosure as to Mr Dunlop’s conduct is not official misconduct.
- As to whether Mr Dunlop’s conduct was maladministration, I make the following findings:
- (a)The alleged conduct meant that Mr Baragan was unable to return to work at Upper Mt Gravatt. That was inconvenient for Mr Baragan given his family responsibilities and the extra time involved in travel to Morningside from his home. That is the only evidence on the impact of the conduct on Mr Baragan. The PID Act requires that the conduct if proved to be maladministration must adversely affect a person’s interests in a substantial and specific way. I do not consider that the personal inconvenience of longer travel time is a substantial adverse effect. I also note that the Upper Mt Gravatt station was closed around the end of 2012, meaning that Mr Baragan would have been moved to another station in any event.
The phrase “substantial adverse effect” has been considered in other contexts to mean an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person. I adopt that meaning as relevant to a consideration of the effect of maladministration. It follows that the first limb of maladministration is not met in this case.
- (b)To the extent that Mr Dunlop performed his functions as Officer in Charge of Mr Baragan, I consider he was taking administrative action, bound as he was by the legislation and subordinate legislation which governs the QPS. Arguably the decision not to transfer Mr Baragan back to Upper Mt Gravatt because of the attitude of DOCS was a decision taken on irrelevant grounds or having regard to irrelevant considerations. For these reasons the conduct of Mr Dunlop may amount to maladministration, if it were not for the threshold issue of the conduct needing to adversely affect a person’s interests in a substantial way.
- I find that Mr Dunlop’s conduct as alleged in the Second Disclosure is not maladministration.
- It follows that I am unable to find that Mr Baragan suffered reprisals as a result of the Second Disclosure as to Mr Dunlop’s conduct.
Events which follow the 23 November 2012 meeting
- Mr Dunlop advised Inspector Sturgess, Morningside (Area Command) about Mr Baragan’s behaviour in the meeting. He says that he considered Mr Baragan’s conduct extremely disrespectful and to constitute insubordination which he was obliged by the Police Service Administration Act 1990 (Qld) to report internally. Mr Dunlop says that he did so, and the report was sent directly to the professional practice manager.
- Mr Sturgess provided an affidavit in the proceeding. Mr Sturgess is now a retired member of the QPS.
- Mr Sturgess confirmed that on 23 November 2012 Mr Dunlop told him about an incident involving insubordination by Mr Baragan during a meeting with him on that day, when Mr Baragan said that he had lost confidence in Mr Dunlop, that he had misled him and then in a loud voice called him a liar. Following that, Acting Superintendent David Cuskelly emailed Mr Sturgess and said they were duty bound to submit a QP466 given the insubordination on 23 November 2012.
- Mr Cuskelly gave an affidavit in the proceeding.
- Mr Cuskelly was Acting Superintendent of the South Brisbane District between November 2010 and March 2013 in a relieving capacity.
- In his affidavit Mr Cuskelly confirms that on the basis of oral advice from a person unnamed, an email from Inspector Kemp and a report from an administrative support worker, Ms Haseler, he asked Mr Sturgess to lodge a complaint with ESC against Mr Baragan in relation to his conduct on 23 November 2012.
- Ms Hasler’s statement is attached to Mr Sturgess’ affidavit. She was not called to give evidence. Ms Hasler gives a dramatic account of a partly overheard conversation between Mr Baragan and Mr Dunlop.
- Mr Sturgess lodged the QP466 on 28 November 2012.That document records a complaint of breach of discipline requiring a discipline hearing, with an investigation recommended. The investigating officer is said to be Chief Superintendent Dabinett (although the investigation was first carried out by Mr Sturgess). Under the sub-heading “Reason for recommendation” it is noted:
There are a number of issues currently surrounding the subject member. The subject member’s behaviour subject of the conversation with the OIC, SBD CPIU have to be addressed as well as the insubordination.
- Under the sub-heading “Reason Not MR”, which I take to be Managerial Resolution the notation is:
Behaviour has to be remedied and is currently on extended sick leave.
- Mr Baragan has asserted that the complaint lodged by Mr Sturgess was a reprisal. I find that it was not a reprisal, because I have not found any public interest disclosure as at the date of the complaint on 23 November 2012. I will consider the investigation later in the decision.
- Mr Baragan asserts in the amended statement of facts and contentions that on 23 November 2012, after his meeting with Mr Dunlop he received a call from Paul Koning (Human Services Officer, Human Services Department, QPS). Mr Koning invited Mr Baragan to attend a meeting later that afternoon to discuss allegations which had come to Mr Koning’s attention that Mr Baragan had been and was currently the subject of bullying by colleagues and supervisors at the Morningside Office of the CPIU.
- Mr Baragan met with Mr Koning on 23 November 2012.
- During that meeting Mr Baragan says that he described his concerns about the child, the actions of Ms Ormsby and his desire to investigate a criminal offence against Ms Ormsby. In particular, his evidence is that he told Mr Koning that the DOCS complaint only came about because of the unlawful conduct of Mr Everett and Mr Fairhurst in making unlawful disclosures. He told Mr Koning that he had suffered reprisals as a result of having made the first disclosure to Mr Dunlop on 22 and 23 August 2011. He described reprisals resulting from that disclosure being unlawful disclosures by DSC Everett and DSS Fairhurst, the DOCS complaint; the QPS investigation into the DOCS complaint, the Morningside transfer, the permanent transfer, the Upper Mount Gravatt rejections, the conditional Detective appointment and the blanket transfer refusal.
- In the amended statement of facts and contentions all of these matters are said to have had an effect on Mr Baragan’s mental health.
- Mr Koning assisted Baragan to make a work cover application which resulted in the Q-Comp decision referred to earlier.
- Mr Koning did not treat any of these matters as public interest disclosures under section 12 or 13 of the PID Act. My decision to this point has found that, except for Mr Everett and Mr Fairhurst’s conduct, none of the matters described by Mr Baragan were public interest disclosures or reprisals. I have not yet made a finding in relation to the status of the disclosures in relation to Mr Everett and Mr Fairhurst’s conduct.
- The amended statement of facts and contentions sets out as follows Mr Baragan’s allegations in relation to a further, fourth disclosure:
- (a)On 29 November 2012, a meeting was organised by Mr Koning for the purpose of discussing Mr Baragan’s allegations of bullying and reprisals. The meeting was attended by Mr Koning, Inspector Sturgess, Superintendent David Cuskelly and Mr Baragan. Mr Baragan was supported by Mr Lane at that meeting.
- (b)At the meeting Mr Baragan again repeated his concerns about the child, the actions of Ms Ormsby and his desire to investigate a criminal offence against Ms Ormsby leading to the reprisals previously set out.
- (c)At that meeting Mr Baragan also complained that he had been denied other opportunities for advancement as a reprisal for having made the first disclosure to Mr Dunlop.
- (d)Mr Baragan complained that he was the subject of bullying and harassment at the Morningside office and his reputation had been irreparably tainted as a reprisal for having made the first disclosure to Mr Dunlop.
- (e)Mr Baragan complained that the DOCS complaint only came about because of the unlawful conduct of Mr Everett and Mr Fairhurst.
- (f)Inspector Sturgess and Superintendent Cuskelly stated they were aware of the conduct of Mr Everett and Mr Fairhurst and that the matter was being “dealt with”.
- (g)Mr Baragan asked for the matter of DOCS refusing to work with him to be addressed and asked for any limitations on his career development to be lifted.
- (h)Inspector Sturgess asserted that Mr Baragan was no longer suited for plain clothes investigative work in CPIU because DOCS refused to work with him and could not be placated.
Was a public interest disclosure made as a result of the Third and Fourth Disclosures?
- Insofar as the disclosures made on 23 November 2012 and 29 November 2012 relate to the First Disclosure, I have found that no public interest disclosure occurred nor any reprisals. Insofar as the disclosures relate to Mr Dunlop’s conduct being the Second Disclosure, I have found that there was no public interest disclosure or consequent reprisals.
- However, the Third and Fourth Disclosures both canvass the conduct of Mr Everett and Mr Fairhurst. That conduct is the remaining conduct from the disclosures which I will consider as to whether it might form the basis for a public interest disclosure and whether any reprisals might have resulted from making those disclosures.
Did a disclosure about Mr Everett and Mr Fairhurst occur as alleged in the Third and Fourth Disclosures?
- Mr Koning is a Senior Psychologist employed by the QPS. He provided an affidavit in the proceeding.
- Mr Koning did not recall any disclosures made about Mr Everett and Mr Fairhurst on 23 November 2012. He made no notes of the meeting. Mr Lane, who worked in the Criminal Investigations Branch as a police officer at Upper Mount Gravatt at the relevant time provided an affidavit in the proceeding. Mr Lane accompanied Mr Baragan to the meetings on 23 November and 29 November 2012. He recalled that Mr Koning was told that the events which led to the DOCS complaint came about because of an unlawful disclosure made to an employee of DOCS by an officer of the QPS. Because of the corroboration given by Mr Lane, I find that a disclosure in the terms recalled by Mr Baragan was made to Mr Koning.
- Mr Koning recalls that in the 29 November 2012 meeting the issue of unlawful disclosure was raised.
- Mr Lane confirms that to be the case.
- At the hearing a transcript of a recording of the meeting of 29 November 2012 was tendered by Mr Baragan.
- After correction of a speaker wrongly said to be Mr Sturgess in fact Mr Cuskelly, no objection was taken that the transcript did not fairly record the conversation at that meeting.
- I note in particular that Mr Baragan said:
My understanding, and correct me if I’m wrong, I know this from Inspector Kemp. Timothy Everett told Adam Fairhurst of my conversation with my boss who then told Kylie Hornsby (sic) who then went around her office and issued a complaint against me and once a complaint was done …
…I mean you have to really understand, respectfully, sir, that people in Queensland Police, people from DOCS who have a sexual relationship have caused this and that’s been demonstrated through Inspector Kemp’s investigation. I believe that those two people may have been subject to some disciplinary action. I don’t know. Nobody got back to me. There may be even civil ramifications but no-one got back to me. I need to know these things. I need to know where I stand.
…I don’t know sir. I know that I am the victim of this and my limitations are that I can’t get relieving spots.
- On the basis of Mr Baragan’s evidence and the transcript of the 29 November 2012 meeting, I find that complaints as to the conduct of Mr Everett and Mr Fairhurst were made to Mr Koning, Mr Sturgess and Mr Cuskelly. I find that Mr Baragan also raised that he was a “victim” of this conduct.
Has a public interest disclosure been made within the terms of s 13 of the PID Act?
Has disclosure been made under s 17 of the PID Act?
- I find that Mr Baragan made the Third Disclosure to Mr Koning on 23 November 2012 and the Fourth Disclosure to Mr Koning, Mr Sturgess and Mr Cuskelly on 29 November 2012 with respect to the conduct of Mr Everett and Mr Fairhurst.
- At the hearing Mr Koning said that he did not think that he was a proper authority for the receipt of public interest disclosures, he also indicated that he could not recall any specific training in relation to the Public Interest Disclosure Act other than some orientation approximately 20 years ago.
- Despite that ignorance of the PID Act Mr Koning refused to acknowledge that any public interest disclosure had been made to him or that he was a proper authority for the receipt of a public interest disclosure.
- In cross-examination Mr Sturgess said that he did not know why he was present at the meeting. He said that at that time he was a Uniform Inspector in charge of Morningside, Coorparoo and Carina Stations. He was responsible only for the uniformed staff at these stations.
- Mr Sturgess acknowledged that he had no familiarity with the PID Act and that he would have to look at it to see what action he should take if he determined that a public interest disclosure had been made to him.
- Superintendent Cuskelly was unable in cross-examination to describe a public interest disclosure. He could recall no training, however he was adamant that no public interest disclosure was ever mentioned up until this point, by which I take him to mean the proceedings.
- I find that Mr Koning is a person who indirectly manages Mr Baragan in the sense of ensuring his welfare as a serving police officer. I find that Mr Koning is a person to whom a disclosure could be made within the terms of s 17(3)(d) of the PID Act and that a disclosure in relation to the conduct of Mr Everett and Mr Fairhurst was made to him.
- As senior officers to Mr Baragan, called to a meeting ostensibly because they could consider career options for him, I find that Mr Sturgess and Mr Cuskelly were persons to whom a disclosure could be made within the terms of s 17(3)(d) of the PID Act. I find that a disclosure in relation to the conduct of Mr Everett and Mr Fairhurst was made to them.
- The fact that all three were ignorant of the PID Act does not change the character of what has occurred under the Act.
Do the Third and Fourth Disclosures relate to information about Mr Everett and Mr Fairhurst which could be official misconduct or maladministration?
- The conduct of both Mr Everett and Mr Fairhurst appears to fall within the definition of conduct within the definition in the Crime and Misconduct Act 2001 (Qld), being a misuse of information acquired in connection with the performance of the person’s functions, for the benefit of someone else, namely Ms Fairhurst.
- The next step in the analysis requires that the conduct could if proved, be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person’s services.
- The relevant offence may arise under s 10.1 of the Police Service Administration Act 1990 (Qld), which provides that it is an offence against that Act to disclose information which has come to the knowledge of an officer because of employment in the service.
- For those reasons, I find that the conduct of Mr Everett and Mr Fairhurst could, if proved, be official misconduct. Accordingly, the information disclosed to Mr Koning, Mr Sturgess and Mr Cuskelly is a public interest disclosure under s 13 of the PID Act.
- The Third and Fourth Disclosures were the first times the public interest disclosure was made.
The Fifth Disclosure
- Arising out of the Sturgess Investigation, which is addressed later in this decision, Mr Winter obtained a search warrant to search Mr Baragan’s home for child exploitation material. The search occurred on 14 December 2012.
- At the relevant time Mr Winter was a Detective Senior Sergeant at Internal Investigations, Ethical Standards Command. Mr Winter has provided an affidavit in the proceeding.
- The Amended Statement of Facts and Contentions sets out that on 17 December 2012, Mr Baragan told Mr Winter that the DOCS complaint only came about because of the unlawful conduct of Mr Everett and Mr Fairhurst.
- I note from attachment DW-4 to Mr Winter’s affidavit filed in the proceeding that disclosure was also made during the course of the search on 14 December 2012 to one of the other officers present, Inspector Dale Frieberg, then Inspector of Police at the Internal Investigations Branch, within the Ethical Standards Command.
- The 17 December 2012 disclosure was made during a full re-telling of all the incidents to that date which had occurred from the date of the issues involving the child and Ms Ormsby:
…Now throughout the investigation it came to light that I’m (sic) (transcript incomplete) calling from my office disclosed that information that I had discussed with Darryl to another colleague, namely Adam Fairhurst who happened to have a sexual relationship with Kylie Ormsby. Now Adam Fairhurst was a senior officer to me, he is a Detective Sergeant now. I think he was acting Detective Sergeant at the time …Now that information left from Upper Mount Gravatt office to Coomera Station where he was working at the time and through that sexual relationship which they still have Kylie Ormsby fond out I contemplated the prosecution against her.
…Which is contrary to 10.1 of the Police Administration Act. Now that information was used in investigating me. Those allegations were based on information unlawfully disclosed. I objected to this but it continued on saying that they had legal advice that he had no problem with doing that.
…DOCS refuse to work with me because of unlawful disclosure made by the QPS by a senior supervisor who had access to the information and I’m discriminated, there’s no lawful basis.
- Mr Winter encouraged Mr Baragan to make a complaint to the Crime and Corruption Commission (CCC) and asked why it was being reported to him. Mr Baragan responded:
Because you are part of the Ethical Standards Command who are equally involved in this, because you investigated me and you didn’t hear my side of the story…
- In cross-examination Mr Winter denied that he was told Mr Baragan’s grievances amounted to a public interest disclosure. He expressed the view that Mr Baragan had not made any public interest disclosures to him, rather Mr Baragan described a complaint he intended to make to the CCC. Mr Winter says that he was never asked to make a complaint on Mr Baragan’s behalf and that it was a matter for Mr Baragan to make his complaint. He was assured by Mr Baragan that he did intend to make a complaint to the CCC.
Was a disclosure made under s 17 of the PID Act?
- Mr Winter is the witness with the best knowledge of the operation of the PID Act in the QPS, no doubt because the ESC manages the investigation of public interest disclosures. His evidence placed weight on the need to make a written complaint using the Q466 process. Certainly, that process is on Mr Winter’s evidence the QPS procedure for making a public interest disclosure under s 17(2) of the PID Act. However, Mr Winter does not take account of s 17(3) of the PID Act which provides that despite subsection (2) the person may make the disclosure to a person who directly or indirectly supervises or manages the person.
- Mr Baragan expressly told Mr Winter that he was telling him about the issues because he is a part of ESC.
- As a senior officer in the ESC, Mr Winter was a person who indirectly supervises Mr Baragan in terms of proper conduct as a police officer. I find that a public interest disclosure in relation to the conduct of Mr Everett and Mr Fairhurst was made to Mr Winter in compliance with s 17(3) of the PID Act.
- Again, the fact that Mr Winter did not recognise the statement made to him as a public interest disclosure does not affect its character.
- I find that a disclosure in terms of s 17 of the PID Act was made to Mr Winter on 17 December 2012.
Has a public interest disclosure been made within the terms of s 13 of the PID Act?
- I have previously found that the information about the conduct of Mr Everett and Mr Fairhurst could, if proved, be official misconduct. That remains the case in relation to the disclosure made to Mr Winter.
- I find that a public interest disclosure with respect to the conduct of Mr Everett and Mr Fairhurst was made to Mr Winter on 17 December 2012 in accordance with the s 13 of the PID Act.
- The then Assistant Commissioner, Community Contact Command, Mr Stewart took over conduct of disciplinary proceedings against Mr Baragan, which will be discussed later in this decision. On 29 June 2015 he was provided with jurisdictional submissions prepared by the Queensland Police Union of Employees on behalf of Mr Baragan.
- Mr Stewart has provided an affidavit in this proceeding. Mr Stewart was at the time of swearing the affidavit Deputy Commissioner, Community Corrections and Specialist Operations, Queensland Corrective Services. At the relevant times he was Assistant Commissioner, Community Contact Command, QPS. Mr Stewart has since retired from the QPS.
- The Amended Statement of Facts and Contentions sets out at paragraph 58 that the complaint about Mr Everett and Mr Fairhurst was made to Mr Stewart in the jurisdictional submissions.
- The jurisdictional submissions set out clearly the complaint about the conduct of Mr Everett and Mr Fairhurst in making unlawful disclosures, which led to the DOCS complaint, along with his reporting of that complaint to senior officers, and alleged reprisals against him. I find that a disclosure of information about the conduct of Mr Everett and Mr Fairhurst has been made as alleged to Mr Stewart.
Has a disclosure been made within the terms of s 17 of the PID Act?
- Mr Stewart, being a person with the authority to discipline Mr Baragan was a person who directly or indirectly supervised him. He was an appropriate person to whom a disclosure could be made under s 17(3) of the PID Act.
- Mr Stewart says that until he received the jurisdictional submissions, he did not know that Mr Baragan alleged he made any public interest disclosures and did not believe that he had made any public interest disclosures.
- Mr Stewart’s evidence is that it wasn’t his role to investigate or determine an entitlement to immunity, or allegations of reprisals upon the making of a public interest disclosure. He said that was a matter required to be considered by Ethical Standards Command, separate to the process being conducted by him but not distinct from the process. Mr Stewart said that he referred the matter to Ethical Standards Command and they advised him that the matters had been previously addressed and that he was to continue with the disciplinary matter.
- Despite the manner in which Mr Stewart treated the disclosure made to him about Mr Everett and Mr Fairhurst, I find that disclosure was made within the terms of s 17 of the PID Act.
Has a public interest disclosure been made within the terms of s 13 of the PID Act?
- By the time of the disclosure to Mr Stewart on 29 June 2015 s 13 of the PID Act had been amended.
- The question becomes whether the conduct of Mr Everett and Mr Fairhurst falls within the new definition of corrupt conduct at s 15 of the Crime and Corruption Act 2001 (Qld).
- I find that the disclosures of information about Mr Baragan’s contemplation of charging Ms Ormsby with obstruction of justice or another offence, were made by Mr Everett and Mr Fairhurst through misuse of information acquired in connection with the performance of their functions, as persons holding an appointment, for the purpose of benefitting Ms Ormsby, and may if proved be a criminal offence against the s 10.1 of the Police Service Administration Act 1990 (Qld).
- Accordingly, I find that the disclosure made to Mr Stewart on 29 June 2015 was a public interest disclosure within the terms of s 13 of the PID Act. I also find that the information tends to show the conduct disclosed.
- To this point in the analysis, I have determined that Mr Baragan made a public interest disclosure about the conduct of Mr Everett and Mr Fairhurst to Mr Koning, Mr Sturgess, Mr Cuskelly, Mr Winter and Mr Stewart.
- On one view of matters, the domino-like chain of detriments suffered by Mr Baragan would not have occurred if Mr Everett and Mr Fairhurst had not made their unlawful disclosure. That is, Ms Ormsby would not have known that Mr Baragan was considering charging her with a criminal offence, she would not have complained to her colleagues about his plan thereby triggering the complaint against him, the QPS investigation, his move to Morningside and inability to be moved back to Upper Mt Gravatt. Mr Baragan would not have argued with Mr Dunlop about a return to Upper Mt Gravatt on 23 November 2012, and Mr Dunlop would not have complained of insubordination by Mr Baragan causing an investigation into that conduct by Mr Sturgess.
- It appears that Mr Everett and Mr Fairhurst have directly or indirectly caused the incidents to occur, and these incidents have had a detrimental effect on Mr Baragan. I have not found that any public interest disclosure of the conduct of Mr Everett and Mr Fairhurst has been the reason for the detrimental incidents. Those incidents all preceded the public interest disclosures which I have found were made on 23 November 2012, 29 November 2012, 17 December 2012 and 29 June 2015.
- It is important to bear in mind that this hearing is about whether there have been reprisals against Mr Baragan because he made public interest disclosures about unlawful conduct, not whether there has been unlawful conduct which caused detriment to Mr Baragan.
- I turn now to consider whether Mr Koning, Mr Cuskelly, Mr Sturgess or Mr Stewart effected reprisals against Mr Baragan because of the public interest disclosures to them about the conduct of Mr Everett and Mr Fairhurst.
- The remaining alleged reprisals set out in the Amended Statement of Facts and Contentions are: the Sturgess investigation; the demotion, the search warrant and search, the Winter allegations, the failure to exonerate Mr Baragan following the outcome of the search, and the failure to discontinue the Stewart disciplinary proceedings.
Protections given by the PID Act
- The PID Act provides:
- (a)By s 36 a person who makes a public interest disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action, for making the disclosure. That is the discloser is entitled to immunity.
I interpret the section to provide immunity where the disclosure would otherwise attract civil or criminal liability or attract disciplinary action. The Explanatory Memorandum gives the example of a disclosure made in breach of confidentiality obligations and points to s 37 of the PID Act as clarifying s 36.
I do not think the facts which go to the public interest disclosures in relation to Mr Everett and Mr Fairhurst support a finding that Mr Baragan would, if not for a statutory immunity, be liable for making the disclosures.
- (b)By s 39 a person’s liability for the person’s own conduct is not affected by the person’s disclosure of that conduct under the PID Act.
- (c)By s 40(1)(a) a person must not cause, or attempt or conspire to cause, a detriment to another person because, or in the belief that the other person has made a public interest disclosure.
By s 40(3) a contravention of subsection (1) is a reprisal or the taking of a reprisal.
By s 40(4) a ground mentioned in subsection (1) as a ground for a reprisal is the unlawful ground for the reprisal.
By s 40(5) for the contravention in subsection (3) to happen it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.
- (d)By s 45 nothing in Chapter 4 part 1 of the PID Act is intended to prevent a manager from taking reasonable management action in relation to an employee who has made a public interest disclosure, only if the manager’s reasons for taking the action do not include the fact that the person has made the public interest disclosure.
- Detriment is defined in Schedule 4 of the PID Act to include, relevantly, personal injury, intimidation or harassment, disadvantage or adverse treatment about career, profession, employment, financial loss and damage to reputation.
- The questions which emerge relate to whether:
- (a)a reprisal within the terms of s 40 of the PID Act has occurred;
- (b)the public interest disclosures made by Mr Baragan form a substantial reason for the taking of action against Mr Baragan;
- (c)any action taken against Mr Baragan is reasonable management action;
- (d)Mr Baragan has suffered a detriment as a result of a reprisal.
Evidence of Mr Sturgess
- Mr Sturgess provided an affidavit in the proceeding.
- After lodging the QP 466 complaint against Mr Baragan on 28 November 2012, wherein he recommended an investigation, not Managerial Resolution, Mr Sturgess was directed by the ESC by email dated 5 December 2012 to deal with the complaint by way of Managerial Resolution. He was directed to conduct an initial interview with the complainant, examine any CCTV, interview relevant witnesses and obtain a version from subject members and provide feedback to the complainant concerning the outcome of his enquiries.
- By the time of the instruction to Mr Sturgess as to how he should manage the complaint made by Mr Dunlop the Fourth Disclosure had been made to him about the conduct of Mr Everett and Mr Fairhurst.
- Mr Sturgess gave evidence that he has no independent recollection of the meeting on 29 November 2012. That does not mean that the events did not occur as I have found.
- Despite the instruction from the ESC as to how the complaint should be handled Mr Sturgess conducted a wide-ranging enquiry into any matter other officers might like to raise against Mr Baragan.
- The log of events attached to Mr Sturgess’ affidavit reveals that between 5 December 2012 and 28 December 2012 Mr Sturgess interviewed 19 police officers and conferred with senior officers, and Inspector Frieberg and Senior Sergeant Winter from ESC the day before a search warrant of Mr Baragan’s home was executed. Mr Sturgess also interviewed Child Safety Officer Ms Van Sleeuwen. He also interviewed Detective Senior Constable Everett.
- No explanation is given by Mr Sturgess as to what relevance the persons interviewed may have to the altercation on 23 November 2012 involving Mr Dunlop and Mr Baragan, which was the subject matter of the complaint required to be managed by Mr Sturgess. No explanation is given for the broad scope of his enquiry.
- Mr Sturgess says that through interviewing witnesses more information came to light regarding a number of incidents which involved potential misconduct, breaches of discipline and criminal matters, including that:
- (a)Mr Baragan caused an administration officer to view child exploitation material at the Morningside Police Station;
- (b)Mr Baragan was seen to place a USB of child exploitation material in his pocket then leave the station within 30 minutes, the exhibit could then not be found that day and was then found in the exhibit box by Mr Baragan the following day;
- (c)Mr Baragan possessed and transported a private firearm contrary to his private licence conditions; and
- (d)there was an inefficient management of resources by Mr Baragan playing a violin during rostered hours.
- Mr Sturgess records in his affidavit that on an unspecified date he contacted Mr Winter at ESC to share his concerns about the “potentially criminal allegations”. He understood that ESC then obtained and executed a warrant to search Mr Baragan’s residence for child exploitation material, but none was found. The search warrant and search are addressed later in the decision.
- Mr Sturgess says that he monitored Mr Baragan’s sick leave but determined that it was not prudent to interview him whilst on sick leave. Mr Baragan’s sick leave continued until Mr Sturgess separated from the QPS and then had nothing further to do with the matter.
- Mr Baragan put to Mr Sturgess in cross examination that his interview with Mr Dunlop involved a complaint of victimisation and that could not amount to insubordination within the meaning of section 7.2 of the Police Service Administration Act 1990 (Qld); that to lodge a QP466 initiating disciplinary action against him and at the same time failing to report his concerns about corruption was an act of unlawful reprisal.
- It was put to Mr Sturgess that he instigated punitive action against Mr Baragan whilst knowingly and unlawfully supressing “from evidentiary relevance the very truth upon which I could have been indemnified of your blame”. That was denied.
- The language employed by Mr Baragan in cross examination is somewhat dense. However, I take his contention to be that on 23 November 2012 he complained to Mr Dunlop that he was being victimised because of an attitude of DOCS, which was not of his making, and because of the perceived change of position of Mr Dunlop. That was explained to Mr Sturgess on 29 November 2012. Further, Mr Sturgess knew from the 29 November 2012 meeting the role Mr Everett and Mr Fairhurst played in his alleged victimisation. Those matters provided an explanation for the heated exchange. By failing to take those matters into account when undertaking the investigation, Mr Sturgess denied him an answer to the allegation of insubordination made against him.
- Further, by failing to act on the public interest disclosure made to him on 29 November 2012 about Mr Everett and Mr Fairhurst, and instead prosecuting an investigation against him in relation to matters arising out of their unlawful disclosures Mr Sturgess was effecting a reprisal.
- To the extent that Mr Sturgess understood what was being put to him he made a denial.
- In cross-examination Mr Sturgess was shown an email from him to Mr Fairhurst and another officer, copied to Inspector Kemp dated 11 January 2013. The email said that Mr Sturgess was investigating the handling of exhibits by Detective Baragan and commented: “I am thinking that it may prove to be prudent to do an audit of all of Detective Baragan’s QPRIME to see what other matters need attention.”
- It was put to Mr Sturgess that on 29 November 2012 he was told Mr Fairhurst had made unlawful disclosures, Mr Sturgess failed to report that public interest disclosure and then went on to “collude” with Mr Fairhurst to generate renewed complaints about him. That was denied.
- No satisfactory explanation was given by Mr Sturgess for engaging Mr Fairhurst in the investigation. 
Evidence of Mr Baragan
- Mr Baragan’s evidence is that the allegations raised against him as potentially “criminal” were never put to him by Mr Sturgess. Mr Baragan says he was not interviewed and the unfinished investigation sat on his record impeding his advancement until it was re-enlivened some years later.
- In his affidavit dated 18 November 2019 Mr Baragan swears that he understood the Sturgess Complaint was resolved because through Workcover he was told that QPS were taking no further action against him, as at 9 April 2014.
- Mr Baragan returned from sick leave and was assigned general duties at Holland Park. On 1 August 2014 after pursuing other work consistent with his Detective role Mr Baragan was told that he would not be considered for any investigatory roles until the Sturgess Complaint had been finalised.
- The conduct of Mr Sturgess in undertaking a broad ranging investigation into Mr Baragan when he was not tasked with doing so is concerning. The matters pursued by Mr Sturgess related to matters which pre-dated Mr Baragan’s appointment as a Detective and were presumably known at that time and were thought to have been dealt with or of little significance.
- One wonders why Mr Sturgess would have taken this path. Was it because Mr Baragan made a public interest disclosure about Mr Everett and Mr Fairhurst on 29 November 2012?
- Taking the evidence at face value Mr Sturgess lodged a complaint against Mr Baragan because he was told to do so by Mr Cuskelly, his superior officer; and as he investigated further matters were revealed which required investigation.
- To draw an inference that Mr Sturgess’ investigation was a reprisal for disclosure of the alleged official misconduct of Mr Everett and Mr Fairhurst requires circumstances raising a more probable inference in favour of what is alleged. I do not think such circumstances have been proved so that I have objective facts on which to draw an inference that Mr Sturgess took reprisal action because of the public interest disclosure. Certainly, the facts suggest action detrimental to Mr Baragan, but the facts do not suggest why Mr Sturgess would take that course. For example, there is no evidence of a strong connection between the three officers which might explain Mr Sturgess’ course of action.
- I am left only with Mr Sturgess’ explanation.
- The respondents submit that having regard to the grave consequences flowing from a finding that any of the respondents contravened s 40 of the PID Act, which amounts to a finding of criminal conduct, such a finding cannot be reached by inexact proofs, indefinite testimony, or indirect inferences. The circumstances appearing in the evidence must give rise to reasonable and definite inferences. I accept that is the case.
- I find that there is insufficient evidence Mr Sturgess conducted his investigation because Mr Baragan made a public interest disclosure in relation to the conduct of Mr Everett and Mr Fairhurst. On that basis I find that Mr Sturgess investigation was not a reprisal within the terms of the PID Act.
Other events occurring across the same time frame
- On 19 December 2012 Mr Baragan lodged a complaint with the CCC that Inspector Kemp’s investigation into Mr Everett and Mr Fairhurst’s unlawful disclosure to Ms Ormsby was inadequate; he complained in relation to Mr Everett and Mr Fairhurst’s disclosure and in relation to Mr Dunlop’s conduct in allegedly bullying and harassing him out of the Upper Mount Gravatt CPIU because of the complaint made about him by Child Safety. Other issues which do not bear on the matters before me were also raised.
- The CSS Summary Report (2013/00100) (CCC reference MI/12/3712) which records the progress of Mr Baragan’s complaint reveals that:
- (a)On 4 February 2013 the matter was referred to Superintendent Keogh, assessing the allegation as Official Misconduct, suitable to be dealt with by way of Managerial Resolution.
- (b)On 15 February 2013 Mr Dunlop retired from the QPS.
- (c)I note an email from Kate Hopgood (QPS) dated 19 February 2013, sent on behalf of Superintendent Keogh to the Professional Practice Manager Acting Inspector Dugger which sets out Mr Keogh’s investigation. The email records that he conducted an examination of the original investigation conducted by Detective Inspector Kemp. Mr Keogh says that he did not speak to Mr Baragan as he was on sick leave. He records that Detective Inspector Kemp advised he obtained advice from the QPS Legal Unit as to whether he should recommend action in relation to the allegation that Detective Sergeant Fairhurst inappropriately disclosed information to the Child Safety Officer who was his partner. The advice provided was that it would not be in the public interest to proceed with such action. It was recommended that allegation one against Detective Inspector Kemp be unsubstantiated and no further action taken.
- (d)On 13 March 2013 the matter was detailed to Senior Sergeant Fitzgibbon, Officer In Charge Dutton Park Station, with the instruction to investigate all officers, with the exception of Inspector Kemp, as these matters have been addressed by Superintendent Keogh.
- (e)On 9 May 2013 Mr Fitzgibbon sent an email to Mr Cuskelly detailing the results of his investigation, including the results of an enquiry made of Inspector Kemp who advised that:
I made inquiries with Operational Legal Advice Unit and they advised that the disclosure of Dorin intending to charge DOCS worker was clearly not in the spirit of the legislation in respect of s 41 Child Protection Act (Prohibition on disclosing a particular matter).
That legislation clearly does not apply as Ms Ormsby was an employee of Child Safety and had intimate knowledge of the child abuse matter.
The info supplied by Tim and Adam was clearly not protected information under the Act.
Of particular note is that Dorin did not carry out his action of charging Ms Ormsby so the disclosure meant nothing in the end.
From the information supplied with Inspector Kemp it is apparent he has already conducted inquiries in relation to these two allegations and found that the release of information under these circumstance was not a breach of discipline or misconduct. As a result Inspector Kemp took this aspect of his investigation no further.
I therefore recommend no further action be taken in relation to these two allegations and both officers be exonerated.
- (f)On 16 August 2013, Senior Sergeant Craig Pond, Professional Practice Manager, recommended Mr Baragan’s 19 December 2012 complaint be found to be unsubstantiated, noting that Mr Baragan complains his allegations of workplace bullying and being harassed out of the Upper Mt Gravatt CPIU are linked to his complaints of unauthorised disclosure of information.
- (g)On 20 September 2013 the outcome of the complaint was – Not Substantiated.
- Mr Fitzgibbon noted that Mr Baragan did not wish to be interviewed in relation to his complaint because he did not want the complaint being investigated or overviewed by anyone in the South Brisbane District because his complaint is against several members stationed within the same District. No response is made to that issue by Mr Fitzgibbon.
- On 15 May 2013 Inspector Cuskelly emailed Zabrina Clark, Administration Officer and said that he has overviewed the Fitzgibbon report and discussed the matter with the investigating officer. He said that he agrees with his recommendation that these matters have little substance and should be viewed in context of other matters currently under review by Ethical Standards Command.
- On 6 August 2013 Mr Fitzgibbon advised Mr Pond by email that he received a telephone call from Mr Baragan complaining that he was not investigating Inspector Kemp. Mr Fitzgibbon advised that he was not doing so. Mr Baragan advised he wanted more allegations investigated.
- On 8 August 2013 Inspector Jaramazovic emailed Mr Dabinett, Mr Fitzgibbon and Mr Pond advising that Mr Baragan wished to be interviewed in relation to each of their investigations.
- On 8 August 2013 Mr Pond emailed Mr Fitzgibbon and requested that he make contact with Mr Baragan to finalise his complaint ESC 2013/00100.
- On 20 September 2013 Mr Keogh was provided with the QComp decision accepting Mr Baragan’s application for compensation. Mr Keogh expressed an interest in an appeal.
- On 28 October 2014 Lynne Brown, Senior Injury Management Advisore, QPS emailed Paul Reidy setting out Mr Baragan’s complaint that ESC fabricated evidence and suspicion to justify an application for a search warrant and other complaints about his treatment.
- On 29 October 2014 Lynne Brown emailed Paul Ready and David Winter attaching a complaint of reprisal for the making of a public interest disclosure, as a result of the execution of a search warrant at his home by Mr Winter.
Evidence of James Patrick Keogh
- Mr Keogh provided an affidavit in the proceeding.
- Mr Keogh is a retired member of the QPS. At the relevant time he was Acting Chief Superintendent, South Brisbane District.
- Mr Keogh had no independent recall of the matters the subject of the proceeding. Nevertheless he too did not believe Mr Baragan had made any public interest disclosures and as a result could not have taken any action against him for that reason.
- Mr Keogh referred to a letter under his hand to Mr Baragan dated 20 September 2013. The letter refers to Mr Baragan’s complaint made on 19 December 2012 concerning the conduct of police form the South Brisbane District. The complaint is summarised as: “police failed to adequately investigate your complaint; unlawfully disclosed information; bullied and harassed you in the workplace and were inconsiderate and insensitive towards you.”
- The letter says that inquiries were conducted by a senior officer from the Region and overviewed by ESC Investigations, including obtaining versions from police and conducting searches on police computer systems. Inquiries revealed all reported occurrences have been effectively investigated. The letter concludes that there is insufficient evidence to substantiate Mr Baragan’s allegations, consequently no further action will be taken in relation to the complaint.
- It was put to Mr Keogh that Mr Fitzgibbon conducted an investigation into his complaint to the CCC, but that he was specifically advised not to investigate the complaint against Mr Kemp because Mr Keogh had conducted that investigation.
- That was not denied, but Mr Keogh denied any neglect on his part and relied on the overview of ESC before finalisation.
- It was put to Mr Keogh that Mr Baragan was not contacted to give a statement in relation to his enquiry into Mr Kemp’s conduct. Mr Keogh said that was because he was on sick leave. It was put to Mr Keogh that Mr Baragan was refused an opportunity to give a statement to the officer conducting the other part of the enquiry into his complaint, but was refused on the basis that Mr Keogh had finalised his investigation.
- Mr Keogh said that if Mr Baragan was dissatisfied, he could regenerate another 466.
- Mr Keogh denied that he avoided Mr Baragan’s statement and evidence concerning Mr Kemp in order to protect him from scrutiny. He also denied failing to properly administer Mr Baragan’s complaint to the extent that Mr Baragan was subjected to hardship and unfair treatment for having complained in the first place.
- No allegations are made against Mr Keogh in the proceeding.
- Although the history of complaints made by Mr Baragan to the Crime and Corruption Commission, referred back for investigation by the QPS, appear to have been poorly dealt with, it seems to me that they raise matters which give rise to industrial grievances rather than questions of reprisal for the making of a public interest disclosure.
Evidence of David Cuskelly
- Superintendent Cuskelly provided an affidavit in the proceeding.
- Mr Cuskelly recalls the 29 November 2012 meeting. He understood that all of the matters raised by Mr Baragan at this meeting had been canvassed with various QPS officers previously.
- Mr Cuskelly says that he placed Mr Baragan as a uniformed police officer at Upper Mt Gravatt until Mr Sturgess’ investigation was completed. He says that the placement enabled Mr Sturgess to interview staff members from Morningside CPIU and administrative teams, provided a safe environment for Mr Baragan and that given the serious nature of the allegations being investigated by Mr Sturgess it was not appropriate for Mr Baragan to return to work as a plain clothes detective. Mr Cuskelly said that a final decision on which office Mr Baragan would work from and his duties would have been made by him after the investigation was completed.
- It was put to Mr Cuskelly in cross examination that his failure to properly report the allegations made to him on 29 November 2012 as public interest disclosures brought Mr Baragan great detriment because he was denied the chance at lawful immunity from the disciplinary action Mr Cuskelly instigated against him. That was denied.
- It was put to Mr Cuskelly that Mr Baragan’s complaints to the CSS, set out in Exhibit 30, related to the same information given to Mr Cuskelly in the meeting on 29 November 2012 and that he was aware of the complaints against Inspector Kemp and the other matters raised by him. It was put that by endorsing the Fitzgibbon report he omitted the evidence and used his position to influence the investigation into Mr Baragan’s complaint to the Crime and Corruption Commisison, so as to inappropriately secure an advantage for himself and others. That was denied.
- Mr Cuskelly’s evidence is that he required a complaint and an investigation into Mr Baragan’s conduct because of the perceived insubordination by Mr Baragan to Mr Dunlop in the meeting on 23 November 2012.
- As with Mr Sturgess, there are no objective facts from which I can draw an inference that Mr Cuskelly’s conduct was a reprisal taken because Mr Baragan made a public interest disclosure to him about Mr Everett and Mr Fairhurst.
- To the extent that Mr Baragan asserts that he was denied immunity from the disciplinary action instigated Mr Cuskelly, that is misconceived on the basis that immunity is only relevant to consequences which might otherwise flow from making the disclosure. It is not the case that once a public interest disclosure is made that immunity then arises for all matters involving the discloser.
Evidence of Andrew James Cussens
- Mr Cussens provided an affidavit in the proceeding.
- Mr Cussens is no longer a serving police officer. He worked with Mr Baragan in the Upper Mt Gravatt CPIU from August 2011 and later worked at Morningside CPIU when Mr Baragan worked there. Mr Cussens overheard some conversations relating to Mr Baragan’s wish to charge Ms Ormsby with obstructing police and also overheard parts of the 23 November 2012 discussion between Mr Baragan and Mr Dunlop. Importantly evidence given by Mr Cussens to Mr Sturgess as part of his investigation played a part in triggering the Winter investigation.
- Mr Cussens attached a transcript of the record of interview with Mr Sturgess. Mr Sturgess asked him if there was anything he would care to discuss about Mr Baragan. During that discussion Mr Cussens raised an incident following an investigation when he was given a USB stick by Argos containing child exploitation material (CEM) to be used as a working copy. Mr Cussens gave the USB to Mr Baragan and said that it had to be lodged as an exhibit and not left lying around. He observed Mr Baragan place the USB in his pocket, undertake some work at his desk and then leave the office for the evening. Later officers looked for the USB but despite a thorough search including of the exhibit box where it should have been placed, could not locate the USB. The next morning Mr Baragan found the USB in the exhibit box.
- The incident is alleged to have occurred on 4 October 2011.
- In cross examination Mr Cussens was consistent. He said the incident with the CEM USB occurred prior to Mr Sturgess’ investigation, he said that he told his Detective Sergeant that the USB was missing on the evening it could not be found. Mr Baragan pressed Mr Cussens in relation to a failure to report the matter as misconduct or a crime. Mr Cussens insisted he had told his Detective Sergeant. Mr Baragan made the point that there was no record of a complaint.
Search warrant and search
- Mr Baragan asserts that the search warrant, the search, Mr Winter’s conduct and the allegation made against him by Mr Winter were reprisals as a result of his First, Second, Third and/or Fourth Disclosures. Additionally, he asserts that a refusal to exonerate him from the allegation giving rise to the search warrant is a reprisal for those disclosures. Because of my earlier findings, I am concerned only as to whether the alleged reprisals were undertaken because of for the Third or Fourth Disclosure to Mr Koning, Mr Sturgess and Mr Cuskelly.
Evidence of David Brett Winter
- Mr Winter’s evidence is that he was contacted by Mr Sturgess on 13 December 2012 about an incident in October 2011 involving Mr Baragan and a CEM exhibit. Mr Winter spoke to Mr Cussens and his colleague Ms Frieberg spoke to another officer on duty at the relevant time. Mr Winter generated a criminal complaint on the QPS computer system and an internal complaint for workplace investigation on the Client Service System (CSS).
- Mr Winter swears that he formed a reasonable suspicion that Mr Baragan took unlawful possession of the CEM Exhibit overnight and returned it the following day. Mr Winter’s evidence is that he was obliged by sections 2.3 and 3.2(2) of the Police Service Administration Act 1990 (Qld) to investigate the matter. He believed a search of Mr Baragan’s residence and storage devices would reveal evidence of this offence. On the basis of that reasonable suspicion a search warrant was obtained. He denies misstating any known facts in the application or warrant. Mr Winter says that he was not aware of any public interest disclosures made by Mr Baragan or any other person, nor was he aware of the DOCS incident at the time of applying for a search warrant or executing the search.
- On 14 December 2012 the search warrant was executed at Mr Baragan’s home. Although devices were seized no CEM was found. Mr Winter denies telling Mr Baragan that if no CEM was found he would be exonerated. Mr Winter prepared an investigation report dated 23 August 2013 which found that neither of the allegations concerning possessing CEM or removing exhibits by Baragan were capable of being substantiated. Mr Winter concluded that no witness positively identified the USB being taken from the police station by Mr Baragan, nor has any witness or forensic computer analysis identified the USB ever being used at his home address. He recommended that the breach of policy – improper lodging of exhibits was capable of being substantiated.
- By undated letter from Ethical Standards Command Mr Baragan was advised that there is insufficient evidence to support disciplinary charges and that no further action will be taken in relation to the complaint. Mr Baragan was told that no adverse record will be placed in his personal file.
- Mr Winter says that in order to recommend exoneration to the Superintendent the investigator must find that:
- (a)there is sufficient evidence to prove a charge of wilfully making a false complaint; or
- (b)it is proven that the officer complained about was not in fact the relevant officer; or
- (c)the incident complained of did not in fact occur; or
- (d)the actions of the subject member were lawful and reasonable.
- Mr Winter says that it is unusual for an investigation to result in a recommendation of exoneration and that in this case the criteria were not met.
- Mr Winter denies knowing that Mr Baragan made any public interest disclosures and denies obtaining the search warrant and carrying out the search or contributing to the search report because Mr Baragan disclosed anything to Mr Dunlop, Mr Koning, Mr Sturgess, Mr Cuskelly or anyone else.
- Mr Winter acknowledges that Mr Baragan told him, including on 17 December 2012 about his grievances in relation to the DOCS incident. He says that he encouraged Mr Baragan to complain to the CCC if he was not satisfied with the ESC process.
- It was put to Mr Winter that his failure to report the asserted public interest disclosures made to him on 14 and 17 December 2012 had denied Mr Baragan the opportunity to challenge the integrity of the disciplinary action initiated against him and to protections from disciplinary action. Mr Winter said that the QPS has an established method for making public interest disclosures, which was ignored by Mr Baragan. He denied the conduct put to him.
Evidence of Dale Jennifer Frieberg
- Ms Frieberg was at the relevant time an Inspector of Police at the Internal Investigations Branch, Ethical Standards Command. Ms Frieberg has provided an affidavit in the proceeding.
- Ms Frieberg was present when the search warrant was executed at Mr Baragan’s residence. She expressed the opinion that Mr Baragan feigned illness when issued with the usual warnings and was deliberately obstructive throughout the execution of the search warrant, specifically when asked questions.
- In cross examination it transpired that Ms Frieberg had no independent recollection of the attendance at Mr Baragan’s house and after hearing the audio of the interactions on the day of the search, thought she may have been mistaken in her recollection.
- As to any public interest disclosure Ms Frieberg said that she had no experience of public interest disclosures in her career. She also hotly denied that she had failed in her duty to report any misconduct by other officers disclosed to her by Mr Baragan. Ms Frieberg did not consider any complaint had been made to her.
- Ms Frieberg is not the subject of any complaint in the proceeding.
Evidence of Juliet Anne Hancock
- Ms Hancock was at the relevant time a Case Officer employed in the ESC for a complaint made by Mr Baragan against Dale Frieberg and David Winter. Ms Hancock has provided and affidavit in the proceeding.
- Ms Hancock’s evidence is that she conducted an investigation into allegations made by Mr Baragan and concluded there was no evidence that during execution of the search warrant on 14 December 2012 Ms Freiberg or Mr Winter assaulted Mr Baragan by poking him in the ribs, nor that they failed to provide necessaries or to provide PPRA warnings. Those conclusions are supported by audio of the events on 14 December 2012. Ms Hancock did not investigate Mr Baragan’s other complaints to the CCC.
- I accept the evidence of Mr Winter that he did not know Mr Baragan had made any public interest disclosures at the time the search warrant was obtained and the search commenced. On this basis I find that the search warrant was not obtained and the search was not conducted because Mr Baragan made a public interest disclosure about Mr Everett and Mr Fairhurst to Mr Koning, Mr Sturgess or Mr Cuskelly. There is no evidence to suggest that Mr Winter did know of the public interest disclosure.
- Mr Baragan is critical of whether Mr Winter had a reasonable suspicion sufficient to obtain a search warrant. I will deal with that issue to the extent that it may be relevant to a fact on which an inference could be drawn that obtaining the search warrant and conducting the search were acts of reprisal for the making of a public interest disclosure.
- I consider that the statement of Mr Cussens was sufficient to found a reasonable suspicion in relation to the conduct of Mr Baragan. It is not necessary that there exists proof of the fact reasonably suspected.
- I find that the search warrant obtained by Mr Winter and the search conducted were not reprisals taken because Mr Baragan made a public interest public interest disclosure.
- Mr Winter was found after an independent investigation not to have engaged in improper conduct during the investigation. There is no basis to challenge this finding nor for any complaint that Ms Hancock engaged in any reprisal.
- As to the failure to exonerate, the only evidence in relation to the ability of the QPS to exonerate an officer comes from Mr Winter. I have no basis on which to find that a failure to exonerate is linked in any way to the making of a public interest disclosure by Mr Baragan. I also note that no adverse record was to be placed on Mr Baragan’s peronnel record. That being the case there is unlikely to be any detriment to Mr Baragan from the search warrant and search.
Sturgess investigation continued
Evidence of Stephen John Dabinett
- Mr Dabinett provided an affidavit in the proceeding.
- At the time of swearing the affidavit he was District Officer, Chief Superintendent, North Brisbane District, QPS.
- Mr Dabinett says that he was allocated the Sturgess complaint investigation in August 2013. Mr Dabinett says that during the course of Mr Sturgess’ investigations further matters were identified for investigation and as a result a number of additional allegations were added to the original complaint. Mr Dabinett conducted his own investigations including witness interviews and prepared a report to the Professional Practice Manager. Mr Baragan was interviewed by Mr Dabinett in relation to the allegations. Mr Dabinett found that the four matters referred to earlier were acts of misconduct together with breaches of discipline and that a prescribed hearing before a Deputy Commissioner was warranted. He expressed the view that potential grounds existed for Mr Baragan’s dismissal from the QPS. He also expressed the view that if Mr Baragan remained employed by QPS after the disciplinary decision then consideration should be given to whether or not he was suitable for plain clothes work and should be transferred to a uniformed position. That is, he would be demoted.
- Mr Dabinett referred to an email received from Mr Baragan on 24 September 2013 setting out his concerns in relation to the disciplinary investigation.
- The email sets out Mr Baragan’s position. In summary he says (using Mr Baragan’s contractions and acronyms):
- (a)he was denied work in CPIU or in plain clothes and was directed to resume work in uniform. The reason given is that the QPS cannot force DOCS to work with him and he will have to work wherever there were available spaces.
- (b)DOCS refused to work with him after he discussed with OIC Dunlop prosecuting one of their members for obstructing him in enforcing a Magistrate’s Order for having a child medically examined in relation to risks of incest and rape.
- (c)Details of that conversation were unlawfully disclosed by DSC Everett to DS Fairhurst (the fiancé of the DOCS worker), who in turn told her. She then petitioned a complaint against him by her office to OIC Dunlop who transferred him to Morningside CPIU for the duration of an investigation assuring him that he will be returned to his usual office at UMG CPIU as soon as the investigation was finalized.
- (d)Inspector Kemp investigated DOCS complaint and concluded he should be managerially guided. Everett and Fairhurst were exonerated or similar in spite of having committed a crime under the Police Administration Act 10.1. At the conclusion of the investigation, he was told that the file was finalized with no adverse comment on his personnel file.
- (e)He applied for a relieving opportunity at UMG CPIU as Detective Sergeant. The following day OIC Dunlop advised him there were problems with his work performance.
- (f)He was told by OIC Dunlop that DOCS had not changed their position regarding working with him. He said that DOCS decide which police work in what office.
- (g)It was then that he told Dunlop that he had lied to him, that he misled him and that he betrayed his trust. He then took sick leave.
- (h)About a month later he attended a meeting at UMG with Supt Cuskelly and Insp Sturgess and discussed his position. He was told that CPIU work may not be for him and he should look elsewhere especially uniform where there are many available spots.
- (i)At that meeting he complained about Everett and Fairhurst.
- (j)Not only did he not get his job in CPIU back but as soon as he complained about offences committed by his supervsors in the whole fiasco he had Ethical Standards turn up a few days later with a PPRA 2000 warrant at his home looking for child porn.
- (k)Why? Because PSCS Cussens of UMG CPIU remembered some 14 months prior he saw me take home child porn on a USB stick, not having denounced him immediately, but sat on it for 14 months until he complained about corruption that he thought was important to disclose.
- (l)He is very bitter at the unfairness dished out to him.
- Mr Dabinett’s evidence is that he confirmed with the Professional Practice Manager and Inspector Kemp that the matters raised in Mr Baragan’s email had been investigated. He determined that the matters raised in the email were not relevant to his investigation. He expressed the view that the matters were being used to deflect from the issues under investigation.
- Mr Dabinett denied any knowledge, except in general terms that the conversation between Mr Dunlop and Mr Baragan on 23 November 2012 involved a disagreement between Mr Baragan and DOCS. He said that knowledge had no relevance to his investigation or findings.
- Mr Dabinett denied knowledge of any of the meetings where Mr Baragan says he made public interest disclosures. Mr Dabinett says that he could not have taken any action against Mr Baragan because he made a public interest disclosure, as he did not believe Mr Baragan had made a public interest disclosure.
- In cross-examination it was put to Mr Dabinett that the email set out above contained a public interest disclosure that Inspector Kemp failed to properly investigate Mr Everett and Mr Fairhurst in relation to the disclosure to Ms Ormsby.
- Mr Dabinett said that he construed the complaint in Mr Baragan’s email as a complaint as to the outcome of the investigation, not that there were allegations of misconduct or serious misconduct being made against Inspector Kemp.
- On 23 March 2015 (some 2 and a half years after the commencement of the Sturgess investigation) Mr Baragan received a direction to attend a disciplinary hearing into four matters which resulted from finalization of the Sturgess investigation by Inspector Dabinett. The disciplinary hearing was assigned to Mr Stewart. The matters are:
- (a)On a date unknown in August 2012 Mr Baragan exposed an administration officer Ms Heath to five or six child exploitation material images;
- (b)On two unknown dates in 2012 Mr Baragan had his privately owned firearm in his possession whilst on duty;
- (c)On 10 November 2012 Mr Baragan played his violin for several hours whilst on rostered duty;
- (d)On 23 November 2012 Mr Baragan raised his voice and accused the OIC CPIU of misleading him and being a liar, thereafter leaving the office;
- (e)During an unknown date in 2012 Mr Baragan parked in the disabled car park, acted inappropriately to Senior Constable Andrews by touching her under the shoulder straps of her load bearing vest and using a derogatory tone in front of others; and made comments to Child Safety Officer Van Sleuen, considered by her to be unprofessional and disrespectful.
- To the extent that allegations are made against Mr Dabinett of a reprisal. I have previously found that the Sturgess investigation which ended with Mr Dabinett’s investigation was not a reprisal. Mr Dabinett pursued matters raised by Mr Sturgess. Having found that Mr Sturgess did not engage in any act of reprisal by pursuing those matters it follows that Mr Dabineet has not done so.
- Although Mr Baragan clearly raised the conduct of Mr Everett and Mr Fairhurst with Mr Dabinett there is no evidence that Mr Dabinett concluded his investigation because of that disclosure or because of any earlier disclosure. There are no objective facts from which I could draw that inference.
- I find that Mr Dabinett’s role in the Sturgess investigation was not a reprisal within the terms of the PID Act.
The failure to discontinue
- Mr Baragan alleges that despite the submissions made by the Union on his behalf as to public interest disclosures and Mr Baragan’s entitlement to immunity from the disciplinary process, Mr Stewart did not administer the Sixth Disclosure and did not discontinue the investigation into Sturgess Complaint. It is asserted that as a result Mr Stewart carried out a reprisal.
Evidence of Paul Eric Stewart
- Mr Stewart was provided with a copy of a discipline investigation report prepared by Mr Dabinett. Upon consideration of the report Mr Stewart considered that there was a case for Mr Baragan to answer and he was directed to attend a disciplinary hearing in relation to the allegations set out earlier.
Claims for immunity
- Mr Gnech then a lawyer with the Queensland Police Union Legal Group made submissions to Mr Stewart on behalf of Mr Baragan. The submissions canvass the history of the matter including;
- (a)the report by Mr Baragan to Mr Dunlop outlining the events which led to Ms Ormsby refusing examination of a child thought to have been sexually abused by a man on similar charges against the child’s sister;
- (b)the discussions between Mr Baragan and Mr Dunlop and the enquiries made by Mr Baragan in relation to possible charges relating to “obstruct police” or “refusal by a public officer to perform duty” which might be made against Ms Ormsby;
- (c)the instruction not to commence criminal charges or any investigation;
- (d)Mr Baragan continuing to work with DOCS until six months later when the charges against the accused being dropped and shortly thereafter a complaint was made by DOCS against Mr Baragan.
- (e)Mr Baragan was moved to Morningside CPIU. Mr Dunlop advised Mr Baragan the move was temporary until the complaint from DOCS was resolved.
- (f)Inspector Kemp interviewed Mr Baragan as part of the investigation. Inspector Kemp revealed in his interview with Mr Baragan on 16 March 0212 and in his Work Cover Statement that the complaint against Mr Baragan was generated as a result of Mr Fairhurst releasing confidential information about Mr Baragan’s consideration of charging Ms Ormsby with criminal offences, to Ms Ormsby. Mr Fairhurst and Ms Ormsby were in a personal relationship at the time. Mr Fairhurst gained his knowledge from Mr Everett. Mr Kemp states that his legal advice was that release of the information was not an unlawful release.
- (g)Submitting that the release of the information was not authorised and is a breach of s 10.1 Police Service Administration Act. Further, the position taken by QPS furthers Mr Baragan’s position that the proceedings are a reprisal and Mr Baragan is targeted as a result of his pursuit of his public interest disclosure. “Some are being protected whilst the ‘whistle-blower’ is being ‘persecuted’”.
- (h)Mr Baragan’s complaints about the conduct of Ms Ormsby were renewed and he raised the unlawful release of confidential information from his criminal investigation of her.
- (i)Mr Sturgess informed Mr Baragan that he was cleared of any wrongdoing as a result of the complaint made by DOCS.
- (j)On 25 October 2012 Mr Baragan was approved for appointment as Detective. The appointment was preceded by a rigorous process including rigorous interrogation of Mr Baragan’s work performance, operational knowledge, legal knowledge and personal attitude. His appointment was supported by all superior officers and approved by the Detective Appointment Board.
- (k)Mr Baragan enquired about return to Upper Mount Gravatt CPIU, without success.
- (l)On 23 November 2012 (mistakenly referred to as 21 November 2012) Mr Baragan met with Mr Dunlop. Four work performance issues were raised with him by way of management action, including playing the violin during work time, which is one of the disciplinary allegations made against Mr Baragan.
- (m)A heated discussion took place over the question of Mr Baragan’s return to Mount Gravatt. He re-stated his complaints about the conduct of Ms Ormsby and the release of information to her. Mr Baragan considered he had been misled.
- (n)Q-Comp found that the transfer of Mr Baragan to another unit and not being returned to Upper Mount Gravatt was unreasonable management action.
- (o)On 29 November 2012 (mistakenly referred to as 28 November 2012), Mr Baragan met with Mr Sturgess and Mr Cuskelly. The conduct of DOCS and the unlawful release of confidential police information was raised by him. Mr Baragan made it plain that he would not accept the matter is finalised and that he intended to pursue his complaint.
- (p)The next day a complaint was formally lodged against him by those officers.
- (q)All of the allegations in the disciplinary proceeding pre-date Mr Baragan’s appointment as a Detective. Had the conduct warranted disciplinary action it would have been reported and dealt with in a timely fashion and would have been considered as part of the Detective appointment process.
- (r)The current proceedings are in furtherance of a reprisal against him and as such the proceedings are invalid as he possesses absolute immunity.
- (s)Mr Baragan has endured a historical review of his conduct in direct response to a public interest disclosure. He is now facing disciplinary action over conduct not previously thought to have been worth of disciplinary action.
Mr Stewart’s evidence continued
- Mr Stewart’s evidence is that he made enquiries after receipt of the submission from Mr Gnech. Chief Superintendent Brian Codd, of Ethical Standards Command told Mr Stewart that the matters had been investigated and Mr Baragan had been advised that his allegations had not been substantiated and it was appropriate for him to continue with the disciplinary proceeding.
- Mr Stewart says that he was shown a copy of a letter from Detective Inspector Paul Ready to Mr Baragan dated 19 August 2015, apparently to that effect.
- Mr Stewart says that he has never caused or attempted to cause any detriment to Mr Baragan because he allegedly made a public interest disclosure or because he believed Mr Baragan had done so.
- Mr Stewart’s evidence in cross examination is that it was inappropriate for him to conduct an investigation into allegations of public interest disclosures and reprisals. He said that was a matter for the Ethical Standards Command (ESC) and he had referred the issue to the ESC when it was raised with him. He did concede that apart from that investigation it would be a matter for him in a disciplinary process to consider a claim of immunity after that had been determined by ESC.
- Mr Stewart insisted that he was entitled to rely upon the verbal advice given to him by Mr Codd, despite it being made apparent in cross examination that the letter from Mr Ready was, at best misconceived.
- Mr Baragan went to some pains in cross examination to demonstrate that the letter from Mr Ready said to be a confirmation that all his complaints had been investigated and found to be unsubstantiated, was in fact referable only to the investigation of the complaint made against Mr Baragan by DOCS, the outcome of which was advised to him on 4 April 2012.
- Mr Baragan has never made any substantive submissions in relation to the allegations raised against him. Instead, he commenced this proceeding. As a result, Mr Stewart did not finalise the disciplinary matter, instead awaiting finalisation of the jurisdictional question.
- The disciplinary matter remains uncompleted.
- There is no evidence to link Mr Stewart’s conduct in failing to discontinue the disciplinary process against Mr Baragan to any public interest disclosure made to him or to other officers. The reason why the matter remains incomplete is because of these proceedings. I find that Mr Stewart has not carried out any reprisal by failing to discontinue the disciplinary process.
- I have previously discussed the limits of an entitlement to immunity in favour of a person who has made a public interest disclosure. A disclosure as to the conduct of Mr Everett and Mr Fairhurst is not a disclosure which would in the ordinary course give rise to disciplinary proceedings against Mr Baragan because he had acted improperly in some way in making the disclosure. To the extent that it is contended that Mr Baragan is entitled to an immunity in the disciplinary proceedings the contention is not made out.
- As a result of the findings made by me that Mr Baragan has not been the subject of any reprisal within the terms of the PID Act, the application is dismissed.
- I recognise the serious situation in which Mr Baragan finds himself in terms of his career and his health, as a result of the way he and his complaints have been managed. However no remedy is available to him under the Public Interest Disclosure Act 2010 (Qld).
 Amended Statement of Facts and Contentions, paragraph 74.
 T7-7, L35-46.
 T8-16, L25-39.
 Amended Statement of Facts and Contentions filed 6 September 2019, paras 7,8,9 and 10.
 Redacted copy at “DB1-009” to Exhibit 3 - Statement of D Baragan dated 23 January 2020.
 Exhibit 3 – exhibit “DB1-31”.
 Exhibit 3 – exhibit “DB1-30”.
 Exhibit 2.
 Exhibit 2, Paragraph 136.
 Exhibit 18.
 Exhibit 18, Paragraph 26.
 Exhibit 18, Paragraph 29.
 Exhibit 18, Paragraph 33.
 Director-General Department of Children, Youth Justice and Multicultural Affairs.
 T3-135, L 25.
 Exhibit 2, paras 130-136; 153-157.
 Exhibit 18, attachment DD1.
 Exhibit 12.
 Exhibit 12, Paragraph 13.
 Exhibt 3, exhibit “DB2-001”
 T2-66, L 15-17.
 T2-66, L 20-22.
 Exhibit 26.
 Burns v Australian National University (1982) 61 FLR 76, 83, 84.
 Child Protection Act 1999 (Qld) (Reprint No. 7), ss 5A, 5B(c), 97(5).
 Exhibit 14, attachment MS-2.
 Exhibit 12, attachment KF3.
 Exhibit 12, attachment KF 1
 Exhibit 15. Ms Bishop-Kinlyside, child safety officer present when the child was taken from her home said that no TAO was in place on the evening of 19 August 2011.
 Amended Statement of Facts and Contentions, para 76.
 Exhibit 20.
 T4-100, L 15-18.
 T4-108, L 17-19.
 T4-109, L 4-5.
 Exhibit 22.
 Amended Statement of Facts and Contentions paras 15 and 16.
 Exhibit 16, exhibit LR-1.
 Exhibit 16.
 T3-30, L37, L42-44; T3-31, L5-7, L37-43.
 T3-42, L11-17, L36.
 T3-48, L35.
 T3-54, L15-17.
 Exhibit 17.
 T3-104, L30-42.
 T2-81, L22-24, T2-82, L1-15.
 Amended Statement of Facts and Contentions , paras 17 -20.
 Exhibit 2, exhibit “DB-9”.
 Exhibit 2, para 191 – 194 and attachment DB 8.
 Amended Statement of Facts and Contentions paras 22, 23, 25, 29.
 Exhibit 18, attachment DD7.
 Amended Statement of Facts and Contentions, para 29, 30.
 Exhibit 18, para 95.
 Exhibit19; Exhibit 3 attachment DB1-072
 T4-66, L2-8.
 Exhibit 3 – “exhibit DB1-073”
 Re Thies and Departmennt of Aviation (1986) 9 ALD 454, (24).
 Exhibit 32
 Exhibit 28.
 Exhibit 32, “LS-6”.
 Amended Statement of Facts and Contentions, paras 34-36.
 Exhibit 40.
 Exhibit 4.
 Exhibit 31.
 T3-71, L30-31, L43-44.
 T6-84, L45-47; T6-85, L 20-21.
 Police Service Administration Act 1990 (Qld), current from 1 December 2010 to 22 September 2013, s 10.1.
 Exhibit 36.
 Amended Statement of Facts and Contentions, paragraph 51(b), referencing paragraph 35.
 Exhibit 36, attachment DW-4 – transcript at 439.
 Exhibit 36, attachment DW-6 – transcript at 142, 144.
 Exhibit 36, attachment DW-6, transcript at 136.
 Exhibit 2- DB-30.
 Exhibit 46.
 Amended Statement of Facts and Contentions para58(a) referencing para 35.
 Exhibit 2- DB-30, paras 12, 13, 14,15, 28.
 Exhibit 32.
 Exhibit 32, attachment LS-6.
 T6-94, L6-7.
 Exhibit 32 LS-9.
 T6-106, L31-34.
 T6-104, L44-47; T6-105, L1-25.
 Exhibit 33.
 T6-108, L5-10.
 T6-108, L 25-30.
 Exhibit 2.
 Exhibit 2, LS-27.
 Luxton v Vines (1952) 85 CLR 352, 358.
 Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
 Exhibit 30.
 Exhibit 30.
 Exhibit 45.
 Exhibit 56.
 Exhibit 53.
 Exhibit 55.
 Exhibit 50.
 Exhibit 55.
 Exhibit 59.
 Exhibit 47.
 Exhibit 38.
 Exhibit 44.
 Exhibit 2 –“DB-20”
 Exhibit 55 email Craig Pond to Kevin Fitzgibbon dated 8 August 2013; Exhibit 51 email Craig Pond to Craig Pond dated 27 August 2013.
 Exhibit 28.
 Exhibit 19.
 Exhibit 36 – attachment DW-7.
 Exhibit 36 – attachment DW-8.
 Exhibit 13.
 Exhibit 24.
 R v Purdon  QSC 128, 18.
 Exhibit 23.
 Exhibit 23 – exhibit “SBD-2”
 Exhibit 2 attachment “DB-30”.
 Exhibit 2 – attachment “DB-30”, attachment “C”.
 Exhibit 2 attachment “DB-31”.
 T8-20, L10-23.
- Published Case Name:
Baragan v State of Queensland & Ors
- Shortened Case Name:
Baragan v State of Queensland
 QCAT 202
27 May 2022