Heuston v Horton[2024] QCAT 432

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is in form the review by the Tribunal of certain disciplinary action taken against the applicant, a serving police officer, by the respondent.^[1] On 14 May 2021 the respondent, then Acting Assistant Commissioner, made two disciplinary findings against the applicant pursuant to Part 7 of the Police Service Administration Act 1990 (Qld).  After receiving submissions as to sanction, on 2 July 2021 the respondent imposed a certain sanction on the applicant. On 2 August 2021 the applicant filed in the Tribunal an application to review those decisions. 
2. [2]
   A Police disciplinary decision is subject to review by the Tribunal under the Crime and Misconduct Act 2001 (Qld) s 219H.  Although described as a review, this has been held by the Court of Appeal to be in substance an appeal by way of rehearing, on the evidence before the decision maker, and any fresh evidence admitted under s 219Q(2):  Willmott v Carless [2024] QCA 115.  In that matter, it was held (at [40]) that s 219Q displaced the Queensland Civil and Administrative Tribunal Act (2009) (Qld) s 20, and that as a result it was necessary for the applicant to show some legal, factual or discretionary error before the reviewing Tribunal could interfere: [43].^[2]
3. [3]
   The practical effect of this, in my opinion, is that the review has become something very like an appeal by way of rehearing after a trial in a court, with perhaps the main difference being that, the proceeding before the original decision maker having been conducted without an oral hearing, there is not the same opportunity for the assessment of credibility of witnesses at first instance to operate as a limiting factor on the rehearing.  That is not important in the present case, where there is no dispute about the factual basis for the matters alleged against the applicant, except on one point, which was decided as a matter of inference.  It may be that, in time, other differences from an appeal by way of rehearing will emerge. 
4. [4]
   Since the matter in issue before the respondent was decided as a matter of inference, I am in as good a position as the respondent to decide whether or not to draw that inference: Warren v Coombes (1979) 142 CLR 531; MAM Mortgages Ltd v Cameron Brothers [2002] QCA 330 at [7].  But the difference is that the onus has shifted to the applicant to show that the respondent was in error in drawing the inference. 

Background

5. [5]
   The applicant on 15 March 2020 submitted an application for an advertised vacancy. As part of that application, which appears to have been lodged on line, the applicant declared: “I agree that to the best of my knowledge and belief the information supplied in this document is correct and complete.”  As part of that application the applicant provided examples of where he had demonstrated various leadership characteristics, over two close-typed pages.  Under the heading “Communicates with Influence” he referred to two Police operations, and said of one of them: 

Situation: A/DS HIU (2016) Required to provide comprehensive multimodal briefing statement to management and senior QC of the DPP regarding investigative direction with murder investigation.  Task: Provide an accurate, detailed and unbiased verbal and written presentation.  Action: I reviewed content of statements, CCR material, witness and suspect interviews, material lawfully obtained and disclosed from telephone interception warrants and witness examinations completed through coercive hearings. This was to ensure that written and verbal presentation was logical, succinct and in a simple manner.  I compiled material into evidence matrices, CCTV, audio recordings, graphs and maps and ensured it was comprehensive.  I delivered a verbal presentation in a face to face meeting which provided context for the investigation and the manner in which it evolved.  I adopted an appropriate communications style to influence the audience which consisted of senior management and a QC thus changing their approach.  I prepared counterarguments in anticipation of concerns being raised by DPP regarding credibility of witnesses, thus actively listening when asked questions and addressed those issues.  I concluded with clear and concise recommendations.  Result: DPP agreed that sufficient evidence existed to commence proceedings.  Two offenders charged with murder.” 

6. [6]
   As it happened, one of the officers on the selection panel had been involved in that particular operation.  That officer regarded this as inaccurate, and reported the matter.  The applicant was sent an email on 8 May 2020 requiring him to provide an email setting out his version of the allegations about this investigation, and on 11 May he provided such material, which identified as the relevant briefing one conducted on 28 January 2015, in a provincial city. On 20 May 2020 he participated in a directed disciplinary interview during which he maintained that senior DPP staff were present at the briefing he gave.  On 2 July 2020 he participated in a second directed interview during which he adhered to his version. 
7. [7]
   The applicant was charged in a disciplinary proceeding with two matters, submitting the application knowing it contained false and misleading information, and knowingly providing false and misleading information during the investigation of the matter. The respondent found, and the applicant did not dispute, now or before the respondent, that there were two briefings relevant to this proceeding given to senior officers about the case in question, one on 28 January 2015 in the provincial city, and one on 27 August 2015, in Brisbane.  There was no representative of the DPP at the former, but there was one at the latter, and it was at or after the latter meeting that the decision was taken to proceed with a charge.  The applicant was at the former meeting, but did not attend the latter meeting.  There was such a presentation at the latter meeting, which could be seen as meeting the description in the quoted paragraph, but it was by a different officer.  The applicant maintained that he did make such a presentation at the former meeting, and it was submitted on his behalf that the possibility of his having confused the two meetings could not be excluded.  The matter in issue before the respondent was whether the applicant acted knowingly.  That was also the matter in issue on appeal. 

Submissions for the applicant

8. [8]
   The applicant submitted that the evidence before the respondent did not support a finding that the false information provided was provided knowingly, that is, that the applicant knew that it was false when it was provided.  There was also a challenge to the sanction applied, in connection with which the applicant sought to rely on fresh evidence, but the parties agreed that I should first decide the question of whether the applicant was entitled to have the charge dismissed. 
9. [9]
   The police operation had been a lengthy investigation, over about three years, and there was evidence that there had been many briefings, at some of which senior police officers had been present.  The passage in the application had been drafted in 2020, while the briefing referred to had occurred in 2015, and there was time for the applicant’s memory of the details of briefings and his roles in them to have faded.  By 2020 the applicant may have honestly believed that he had provided a presentation at the briefing in January 2015 which met the description in the application.  Some other officers involved in the investigation had been unsure of the details when asked. 
10. [10]
    Although the respondent had relied on similarities between the content of this part of the application and an application which had been submitted by another officer, a copy of which had been provided to the applicant and used as an illustration of what was required for such an application, there was uncontradicted evidence that resume writing was not taught to officers, and that sharing resumes for guidance was not uncommon in the force.  When the resume was provided the applicant knew that one of the officers on the selection panel had had a senior role in the investigation in question, and it was unlikely that a false claim as to his involvement in that investigation would be made by the applicant when there was such a prospect of detection.  The second charge really was in the same position as the first, and if it were not shown that the incorrect information in the application was provided knowingly, the second charge also had to fail. 

Submissions for the respondent

11. [11]
    The respondent submitted that he had specifically considered the question of whether it was appropriate to draw an inference that the applicant’s statements had been knowingly false and misleading, and had been satisfied that it was appropriate to draw the inference that he acted knowingly.  It was submitted that the position was the same as an inference that something was done intentionally, which had its ordinary meaning, and was a matter of inference on the basis of all the evidence.^[3] Given the content of the application, and the extent and content of the inaccuracies, it was open to the respondent to conclude that the false information was provided knowingly, and no error on the part of the respondent has been shown in his so finding.
12. [12]
    The respondent submitted that the fact that other officers did not have a clear recollection of this matter did not show that the applicant could have made an honest mistake, or that such a thing was a real possibility, and the suggestion that he would not have acted in this way knowingly when he knew that an officer familiar with the investigation in question was on the panel was just speculation. 
13. [13]
    As to the second matter, the reasons of the respondent show that he arrived at his conclusion in a conventional way, and it has not been shown to be in error.  It was not the case that this matter simply piggy-backed on the first.  Rather the second matter arose out of occasions when the applicant was questioned about the incident and the accuracy of his responses.  This gave him the opportunity to raise any uncertainty in his recollection.  Nothing of that nature occurred during the first interview.  It was submitted that I should consider the full terms of both interviews, and I have done so. 

Consideration

14. [14]
    One matter that concerned me was that the submissions for the applicant, that the evidence before the respondent did not exclude the possibility of confusion or mistake on the part of the applicant, was very like a submission which would have been appropriate if the standard of proof was beyond reasonable doubt.  In that situation it is necessary for the evidence to exclude any reasonable hypothesis consistent with innocence before an element of the offence charged can be proved as a matter of inference.  Guilt must be the only inference reasonably open on the evidence. 
15. [15]
    In a disciplinary matter however, before an internal decision maker or on appeal to the Tribunal, it is well established that the process is a civil proceeding and that the standard of proof is on the balance of probabilities, bearing in mind the guidance as to the way that standard is to be applied in matters involving allegations of serious wrongdoing provided by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.^[4] What is required is reasonable satisfaction bearing in mind the seriousness of the allegations, and serious allegations require cogent proofs.^[5] But so long as that is achieved, and the decision maker feels a real persuasion in the existence of the fact found, I do not consider that it is necessary to exclude all reasonable hypotheses consistent with innocence.
16. [16]
    The respondent in his reasons for decision referred to Briginshaw (supra) and to a decision of the Tribunal,^[6] and it was not submitted that the incorrect legal test as to standard of proof had been applied. The applicant had submitted that the alleged matters were of such a serious nature that misconduct charges must be highly reliable and rests at the very peak of the sliding scale.^[7] That was overstating the seriousness of the conduct; it is not difficult to think of more serious misconduct which could be alleged against an officer.  I do not characterise this as an exercise where the equivalent of proof beyond reasonable doubt was required. 
17. [17]
    The cases relied on by the applicant were either decisions involving criminal matters where the standard of proof was beyond reasonable doubt, or decisions based on criminal matters.  The decision cited of King v Martin [2017] QCAT 291 does not, in my opinion, say anything helpful on this point.  In O'Keefe v Pointing [2017] QCAT 299 there was some discussion of the difference between something being false, and being knowingly false, but the ultimate finding of the Member, that forgetfulness was as likely an explanation as deliberate falsehood, did not turn on whether or not the approach in a criminal case applied. 
18. [18]
    I note that before the respondent the applicant did not dispute the facts alleged in the particulars provided of each charge.  They were also not contested before me, nor was any error on the part of the respondent in relation to this alleged by the applicant. 
19. [19]
    There were particular features of the briefing referred to in the application which were quite distinctive:

    1. The briefing was in the presence of a QC from the office of the DPP. 
    2. The briefing was the one when it was decided to proceed to charge two people, as the culmination of the investigation. 
    3. The applicant presented to the meeting.
    4. It was the applicant’s presentation that convinced decision makers to proceed to charge. 
    5. It was the culmination of a long, complex and difficult investigation. 
20. [20]
    These features were significant because they distinguished this briefing from others held in the course of the investigation, and because they emphasised the importance of the involvement of the applicant.  It was the combination of the features of this specific briefing and the importance (as presented) of the applicant’s role in it which made it significant for the purposes of his application, as showing his capacity to communicate with influence.  These features also make it difficult to believe how one could be confused about whether another briefing met this particular description. 
21. [21]
    Another feature of the matter is that a copy of the application made by another officer, the one who had undertaken the presentation which met the description used, had provided the applicant with a copy of his application, which contained his description of his presentation.  That would have reminded the applicant that he had not presented in this way himself at that briefing, if reminding were necessary.  Parts of the applicant’s description of his supposed presentation had been copied word for word from the application of that other officer, although the year was changed from 2015 to 2016,^[8] and the name of the QC involved was omitted; but the code name of the operation was still used.  The applicant admitted he had used this in preparing his application. During the disciplinary inquiry the applicant said that the briefing he had in mind was the one provided to senior officers in the provincial city on 28 January 2015.  But there was no representative of the DPP at that briefing, and it was not the one which resulted in the decision to lay the charges.  It was not the culmination of the investigation, and necessarily it was not the applicant who persuaded the decision makers to go ahead with the charges.
22. [22]
    Further the applicant on his application identified his position at the time as acting detective sergeant in a particular unit, a position he did not achieve until September 2015, and then only for a few days.^[9] The briefing which met the description in the application was presented in Brisbane, and the applicant had not even been present on this occasion.^[10] There is some evidence that he assisted in preparing part of the material for the presentation.^[11] The applicant’s work diary entry for 28 January 2015 referred to “conduct briefing regarding job direction.”^[12] The diary of another officer present recorded the briefing as “with HIU management and [local] CIB re status and investigation plan”.^[13]
23. [23]
    When the applicant was first emailed about the first allegation, he provided this extract from his work diary, which identified the meeting on 28 January 2015.  He said this was the meeting he referred to.  He also provided a “special occurrence” report No 158 “stipulating my involvement with the briefing … .”^[14] This document stated that the applicant and another officer had been deployed to the provincial city on 25 January 2015,^[15] something confirmed by his work diary,^[16] which also shows that on 27 January he attended a briefing conducted by the Detective Inspector of the local District. It seems odd that he would be conducting a briefing in these circumstances, when he had just been deployed to the city, and just attended a briefing himself.
24. [24]
    On 20 May 2020 he was subject to a directed interview with the officer investigating this disciplinary matter.^[17]  He was read the relevant part of the application he had completed, and, when asked if that was a true and correct representation of his involvement in that job, answered “yes”.  He said that the diary confirmed he collected a detective superintendent and a detective inspector at the airport on 28 January, and returned them to the airport on 29 January.  He said he was part of the HIU team referred to in general terms in the special occurrence sheet.  When asked about briefings when the DPP QC was present, he said there were three or four.  He also said there were a number of briefings involving the local DPP.  But when challenged about the presence of a senior QC, he said that he was talking about a senior member from the local DPP.   When asked whether he was standing in front of all these people giving a verbal presentation, he replied “All of us did.  All of us had the task because of the amount of information there was.”  That was a description of contributing to the discussion at a meeting, not presenting as described in the application. 
25. [25]
    The applicant was definite during that interview that he was not referring in his resume to the briefing given in Brisbane on 27 August 2015.  His explanation for the similarity with that of the other officer was that they were both on the job, and both would have done the sort of briefing that he was referring to.  At one point he claimed that there were a number of briefings which changed the minds of the RCC and the DPP.  That cannot be true, and only one briefing would meet the description in the resume. 
26. [26]
    The operations leader of the unit to which the applicant was attached confirmed that briefings on this job were frequent and he did not think there was anything special about the one on 28 January 2015.^[18]  He also said that it was not until the second half of 2015 that they started discussions about moving to an arrest, which did not occur until February 2016.  Another more senior officer who attended that briefing by phone said that the DPP did not participate in the briefing on 28 January 2015, and the only briefing to a senior prosecutor was on 27 August 2015.^[19] Another officer present said his note of the briefing was that it was “re status of investigation and progress.”^[20]
27. [27]
    A further directed interview of the applicant occurred on 2 July 2020.^[21]  On this occasion the applicant said he believed that there was a prosecutor there, whose name he could not recall, not the one named in the other officer’s resume, but the one who was the prosecutor in the case eventually.  He said he recalled the prosecutor being asked questions about certain aspects of evidence.  He said he recalled briefing some DPP person more than once.  The officer who was supervising the investigation has confirmed that the local DPP were never involved in the investigation, and never present for any briefings, since they were never going to prosecute at the trial.^[22] The police had specifically asked for a senior counsel from out of town to prosecute the trial, and that was done by a prosecutor who only came into the matter well after the briefing in August 2015, at which the decision was made to proceed with the charges.
28. [28]
    The applicant claimed that the last statement in the resume, that the result was that sufficient evidence existed to prosecute, was a reference to the ultimate outcome of the whole investigation, rather than to the result of that particular meeting and his presentation.  That is not how the passage reads to me.  He characterised the situation as that, at the end of three years’ work by everyone involved, the DPP decided to charge the two people.  But the whole point of including reference to this job in the resume was to illustrate his personal ability to communicate with influence.  Simply saying that he contributed to the investigation which eventually led to people being charged does not do that. 
29. [29]
    In the second interview the applicant claimed he distinctly remembered the briefing he was in, that is, on 28 January 2015, and that he spoke to senior members of the HIU and the local CIB, and he was sure someone from the DPP was there.  When asked about why he had put in the application that he was acting sergeant when speaking about a specific briefing in January 2015 when he did not have that rank, he said that he put that in to show that he had done relief periods during that investigation.  That was so, but not until the second half of 2015. 
30. [30]
    I have considered the material before the Tribunal, and the submissions of the parties, and am not persuaded that the respondent erred in being satisfied that, in relation to Matter One, the applicant provided incorrect information knowingly.  If the question of whether he acted knowingly is a matter where I make up my own mind, as a matter of inference, I do draw the inference from that material that the applicant acted knowingly when submitting his application.  I feel a real persuasion that that was the true situation, considering the matter in the way outlined in Briginshaw (supra). 
31. [31]
    I do not consider that there was any real possibility that the applicant was in error because of confusion, or because his memory had faded.  The relevant time period is not from 2015 to 2020, but from 15 March 2020 when he submitted the application to 11 May 2020 when he identified the briefing on 28 January 2015 as the relevant briefing.  That was not the briefing described in the application, as the applicant must have known.  He would have been reminded, by seeing the other officer’s precedent, that he was not the officer who presented the briefing described in that application, and the only real explanation is that he was using that description because it did serve as a good example of communicating with influence.  Despite his efforts to dress up the January briefing as in some way fitting that description, it plainly does not, and his statements at the interviews were clearly enough just attempts to cover his tracks. 
32. [32]
    The applicant did not claim to have been confused about the proposition that he was referring to a briefing in January 2015, despite the incorrect date and incorrect position description as at that date; rather he claimed a clear recollection of that briefing, but he described things about it, such as that they had all contributed to it that day, which were plainly inconsistent with the description in the application.  As to the submission that he would not have acted knowingly when an officer who was familiar with the investigation was on the panel, the applicant may have forgotten that that officer was present at the briefing in January 2015, or may have thought that he could get away with trying to dress up that as the briefing described.  Or he may have just overlooked the involvement of the officer, as a result of which he was caught.  
33. [33]
    Matter Two concerned statements made during the investigation.  As particularised this covered three matters.  When the applicant identified the briefing in January 2015 as the one he was referring to, he implied that a senior person from the DPP had been at the briefing, which was not the case.  The same assertion was made expressly during each of the directed interviews.   It was alleged as a particular that during the period 26 January to 1 February 2025 no briefing occurred relating to this operation involving the presence of any officer from the DPP.  As mentioned earlier, the applicant had admitted at the hearing that the particulars were correct.  Again, the issue was whether these things were said or implied, knowing that they were false. 
34. [34]
    Strictly speaking, at least the second and third aspects of this matter were quite separate from the first matter, because they involved statements made on separate occasions.  Again, there was no real opportunity for relying on confusion or mistake as an alternative hypothesis, particularly when the applicant had insisted during the second directed interview that he had a clear recollection of the briefing concerned.  This was a lengthy, difficult and significant inquiry, and one in which the local DPP office was never involved.  In those circumstances, I cannot accept that he might have been thinking of a different briefing when speaking about this one. 
35. [35]
    I am again not persuaded that the respondent erred when finding that these false statements had been made knowingly by the applicant.  On the material before me, and on the basis that the facts in the particulars are admitted, I draw the same inference, that the relevant false information was provided knowingly.  I do not consider that this is in substance the same as the first matter.  This is a situation where the applicant sought to escape the consequences of his first lie by further lies.  That is an aggravation of the wrongfulness of the first matter.^[23]
36. [36]
    For those reasons, my decision on the review is that the decision of the respondent, dated 14 May 2021, that the two disciplinary matters involving the applicant were substantiated, is confirmed.  The further hearing of the review, to deal with the challenge to the sanction imposed, will be adjourned to a date to be fixed.