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Crime and Corruption Commission v Shearer[2024] QCAT 523

Crime and Corruption Commission v Shearer[2024] QCAT 523

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission v Shearer [2024] QCAT 523

PARTIES:

Crime and Corruption commission

(applicant)

v

Naomi c’Ann Shearer

(respondent)

APPLICATION NO/S:

OCR024-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 November 2024

HEARING DATE:

5 August 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Fitzpatrick

ORDERS:

  1. It is ordered that no disciplinary declaration is made.
  2. The non-publication application is refused.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where Crime and Corruption Commission referred application for a finding of corrupt conduct – where respondent pleaded guilty to refusal by public officer to perform duty – where only one charged was deemed to be corrupt conduct in initial hearing – where sanction to be determined by way of subsequent hearing – where respondent no longer a part of Queensland Police Service – whether parity principle applies to police officers in regard to tenure or rank – whether legislation as at date of the referral of proceedings or as at date of hearing to be relied upon – whether a discipline declaration can be made against a former police officer

Crime and Corruption Act 2001 (Qld) s 15, s 219I, s 219IA

Police Service Administration Act 1990 (Qld) s 2.3AA, s 7.1, s 10.1

Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384

Crime and Corruption Commission v Lee (No2) [2019] QCATA 151

Crime and Corruption Commission v Wright and Waller [2021] QCAT 304

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Earthquake Commission v Krieger [2014] NZLR 547

Fletcher v Queensland Nursing Council [2009] QCA 364

La Macchia v Minister for Primary Industry (1986) 72 ALR 23

Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380

Queensland College of Teachers v Duffin [2024] QCAT 298

R v Hurst [2014] QCA 168

APPEARANCES & REPRESENTATION:

Applicant:

P Price, Principal Lawyer, Crime and Corruption Commission

Respondent:

J R Hunter KC, instructed by Gnech and Associates Lawyers

REASONS FOR DECISION

Background

  1. [1]
    On 24 January 2020 the Crime and Corruption Commission (‘CCC’) applied to the Tribunal for a finding that disciplinary charges of corrupt conduct against Naomi C’Ann Shearer are proved and that a sanction of dismissal from employment as a Queensland Police Officer should be imposed. Three charges were raised against Ms Shearer.
  2. [2]
    On 5 December 2018 then Detective Senior Constable Shearer pleaded guilty to an offence of Refusal by a Public Officer to Perform Duty.
  3. [3]
    The offence arose out of an event on 27 July 2016 when Ms Shearer engaged in conduct which she acknowledged was a cause of a breath test not being conducted by other police officers, in respect of a driver who was a Victoria police officer on holiday in Queensland.
  4. [4]
    On 15 June 2021 I concluded that the conduct of Ms Shearer referred to in Charge 1 amounts to corrupt conduct within the terms of section 15 of the Crime and Corruption Act 2001 (Qld) (‘CC Act’).[1] The remaining two charges were dismissed.
  5. [5]
    Charge 1 is:
    1. That on or about 27 July 2016 at Alexandra Headland in the State of Queensland, Senior Constable Naomi C’Ann Shearer, a sworn officer of the Queensland Police Service, being the holder of an appointment in a unit of public administration, engaged in corrupt conduct; and
    2. That conduct adversely affected the performance of functions and the exercise of powers of powers of a unit of public administration; and
    3. The conduct resulted, in the performance of functions and the exercise of powers of the Queensland Police Service being exercised in a way that was not honest or impartial or, alternatively, knowingly or recklessly involved a breach of the trust placed in Senior Constable Naomi C’Ann Shearer as an officer of the Queensland Police Service.
    4. The conduct, would if proved, be a criminal offence or a disciplinary breach providing reasonable grounds for terminating Senior Constable Naomi C’Ann Shearer’s services.

Particulars

  1. On 27 July 2016, and at all other relevant times, Naomi C’Ann Shearer was a sworn member of the Queensland Police Service.
  2. On 27 July 2016 Naomi C’Ann Shearer attended in response to a call for assistance at a vehicle interception.
  3. During the course of the interception, Naomi C’Ann Shearer engaged in conduct which caused a breath test not to be conducted in respect of Kevin Anthony Perry.
  1. [6]
    Ms Shearer did not contest Charge 1 and the particulars of that charge. Despite the finding of corrupt conduct, I was not prepared to find at that time, that the conduct would be a disciplinary breach providing reasonable grounds for terminating Ms Shearer’s employment. That question is now dealt with in the second part of the proceeding related to sanction.

Non-publication order

  1. [7]
    The parties handed up at the hearing a document of agreed admissions by the parties which sets out the disciplinary sanction imposed on each of the other officers involved in the incident in question.
  2. [8]
    Ms Shearer filed supplementary submissions dated 1 August 2024, which refer to those sanctions.
  3. [9]
    No formal application was filed seeking a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’),[2] however, both parties raised in their material that the identifying details of the disciplinary sanctions imposed on those officers should be the subject of a non-publication order.
  4. [10]
    The CCC submits that the officers have not been subject to proceedings within the Tribunal in relation to their conduct. The sanctions have been provided for use in these proceedings, however, disciplinary sanctions imposed internally through the Queensland Police Service ('QPS’) discipline regime are confidential and not subject to publication.
  5. [11]
    A non-publication order is sought on the ground set out in s 66(2)(d) of the QCAT Act,[3] that is, the order is necessary to avoid the publication of confidential information or information whose publication would be contrary to the public interest.
  6. [12]
    It is also said that the sanctions need not be published because this is not a case in which the general principles of parity should be applied, given the conduct of Ms Shearer is different to the conduct of the other officers. That argument is dealt with later in this decision.
  7. [13]
    Disclosure of the sanctions was made on the basis that the information would only be used for the proceeding before QCAT, and that the Applicant would seek a non-publication order.
  8. [14]
    Clearly the information is intended to be used in this proceeding. The application has been made, however, it is a matter for the exercise of my discretion as to whether the order is made and on what terms. In the interests of open justice publication of all relevant evidence would ordinarily be made on the face of the Tribunal’s reasons for decision. The CCC cannot assume that a non-publication order will be made after relevant evidence has been tendered.
  9. [15]
    The officers concerned are not parties in this proceeding and, but for this proceeding, their disciplinary outcomes would have remained an internal QPS matter. It is submitted that to publish otherwise confidential information would not be in the public interest.
  10. [16]
    I specifically requested submissions from the CCC as to what particular quality makes the information in question confidential information which should be protected from publication in the public interest. Apart from the bare submission that the information is treated as confidential no further submission has been made on this point.
  11. [17]
    In my view both the Commissioner of Police and the officers personally have an interest in the information. Insofar as the interest of the Commissioner of Police is concerned, the information falls within the scope of the general provisions as to disclosure of information in Division 1 of the Police Service Administration Act 1990 (Qld) (‘PSA Act’) and falls within the definition of “confidential information” in s 10.1(5).[4]
  12. [18]
    I note that use of the information in evidence, is a contemplated use of such information.[5]
  13. [19]
    As to the interest of the officers, the information is personal information. I am satisfied that because the information is not in the public domain it can be characterised as confidential information.[6] Following Professor Dal Pont’s analysis in his text “Law of Confidentiality”, what makes information personal is the identification of the information as being about the person. He says that although the information itself could be understood as being confidential, the reality is that what is confidential is the information when tied to the identity of the relevant person.[7]
  14. [20]
    I am satisfied that in terms of the interests of the Commissioner of Police and the officers that the information as to disciplinary sanctions is confidential information. With respect to the officers the information becomes confidential when it is tied to each of them.
  15. [21]
    The CCC in its submissions submits that it would not be in the public interest to publish the information. I do not think it is as simple as characterising information as confidential and concluding that it is therefore not in the public interest to publish the information. There is a high bar to jump in that the Tribunal can only act if the order is “necessary”. That statutory imperative is set in the context of the order being necessary in the interests of justice, which draws upon the fundamental principle of open justice.  In Cutbush v Team Maree Property Service (No 3),[8] President Justice Wilson said:

Although QCAT’s discretion to grant a non-publication order is created by statute, the discretion is underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.  This principle applies in cases where the information has already been published, or not.

Open justice requires that nothing should be done to discourage the fair and accurate reporting of what takes place in the courtroom, unless there is some material before the court to show that it is reasonably necessary to prohibit the publication.  The onus is on the applicant to show special circumstances justifying the making of the order.

Where the publication concerns identification of parties or persons affected by proceedings, the mere fact that the publication may produce “embarrassment or unfortunate financial effects” is generally not a sufficient reason to prohibit publication, especially if the names have already been published..

  1. [22]
    I do not consider that the public interest is served by preventing publication of relevant evidence in this matter when set against the public interest in open justice, which in my view is heightened in matters of police conduct. I am not satisfied that the CCC has shown special circumstances to justify making an order to prevent publication of the disciplinary sanctions. Nor would it seem practical to anonymise the officers by reference to their sanctions. The officers have been named in the proceeding and their conduct has been examined in the first decision in the matter. Two of the officers provided signed statements and would have been called to provide evidence before the Tribunal should Ms Shearer have contested Charge 1.
  2. [23]
    Discussion of parity in relation to an appropriate sanction will require a comparison of the treatment of other officers with that sought in relation to Ms Shearer. It is not possible to do so without reference to each officer and the relevant sanction.
  3. [24]
    It is submitted that Crime and Corruption Commission v Wright and Waller ('Waller’)[9] is authority for prohibiting publication of the identity of third parties to ensure co-operation of persons in the detection and investigation of misconduct by police.
  4. [25]
    That case is quite different to this case where all the officers were involved to varying degrees in the incident which gave rise to the charge against Ms Shearer and a question of parity in imposition of sanction arises. In Waller’s case, the Constable was found to have had sex with a woman while on duty. The name of the woman was anonymised. She was described as an innocent bystander and it was considered that the detection and investigation of misconduct by police depends, to some extent, on the cooperation of people like NFT, so that her identity and those close to her should be protected. The Member refused to make a non-publication order with respect to other police who were involved because of the performance of their official duties.
  5. [26]
    The CCC sought the views of the relevant officers to publication of their names and sanctions. Only one officer responded. A transcript of what I take to be an email was attached to the further submissions. The officer asks that their name is not published because the officer has been injured at work and is suffering stress, pain, and mental anguish. It is said that when told the officer’s name may be published the officer’s mental state was affected. The officer considers publication will have an impact on recovery and returning to work after the injury.
  6. [27]
    The CCC submit that the Tribunal may properly consider that a non-publication order is necessary to avoid endangering the mental health of the officer.
  7. [28]
    The evidence put by the CCC to make this submission is unsatisfactory because it is unsigned and there is no supporting medical evidence. The officer in question’s name has already been published as part of the first decision in this matter. The submissions made by both parties in the sanction hearing name that officer. Those submissions must be considered by me in this decision. It appears from the officer’s reasons as to why their identity should not be published, that being named in the matter is upsetting. Publication of the sanction imposed is not said to be a cause of upset. One can understand that the officer would rather not have the conduct in question re-examined or discussed in public, given the officer’s current circumstances. However, that horse has bolted. It is not possible at this stage to prohibit publication of the officer’s name in relation to the conduct which occurred during the incident.
  8. [29]
    The application for a non-publication order was made in relation to details of the disciplinary sanctions imposed on the officers, as contained in the admissions document.
  9. [30]
    I am not satisfied that making such an order would avoid endangering the officer’s mental health, because such an order would not address the officer’s real concern. The making of a non-publication order is not to be given lightly or because it might be helpful to a person.
  10. [31]
    I am not satisfied on the submissions made to me that a non-publication order should be made in the terms sought. The application is refused.

Ms Shearer is no longer a serving police officer

  1. [32]
    Ms Shearer resigned from the Queensland Police Service on 10 November 2021. As a result, this Tribunal may only make a discipline declaration in respect of Ms Shearer as a former police officer, in accordance with s 219IA of the CC Act.[10]
  2. [33]
    The legal representatives for the parties submitted that s 219IA has been in the same form since its amendment in 2019 by the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019,[11] and that legislation in force at the time of commencement of the discipline proceeding is the legislation to be applied in this matter. In my view, because I am the decision maker in this matter exercising original jurisdiction, the legislation in force at the date of my decision is the appropriate iteration of the legislation.[12]
  3. [34]
    Section 219IA of the CC Act provides that the Tribunal does not have jurisdiction to make a discipline declaration in relation to any disciplinary action which would have been made, if Ms Shearer remained a police officer, other than dismissal, suspension from duty without pay for at least 3 months, probation, or demotion.[13]

The parity principle

  1. [35]
    It is submitted on behalf of Ms Shearer that by reference to the parity principle[14] the appropriate sanction falls at or below the level of that imposed on Senior Constable Emily Blunt who was an officer principally involved in the relevant conduct.
  2. [36]
    A statement of agreed admissions handed up at the hearing records that the following disciplinary sanctions were imposed as a result of the conduct of officers involved in the event which occurred on 28 July 2016.
    1. Senior Constable Blunt received a disciplinary sanction of a reduction in pay for 9 months and is eligible to progress to pay point Senior Constable 2.8 on the following conditions:
      1. Perform 30 hours of community service at Sunshine Coast Qld Police Citizen’s Youth Club in the “Break the Cycle” program and;
      2. Complete an Online Learning Program (‘OLP’) within one month of final determination of the matter.
    2. Constable Walsh received a disciplinary outcome of managerial guidance.  She separated from the QPS before she was subject to this outcome.
    3. Senior Constable Evans received a disciplinary sanction of a reduction in pay level of salary from pay point Senior Constable 2.6 to pay point Senior Constable 2.3 for 12 months on the following condition:
      1. Perform 30 hours of Community Service at Sunshine Coast Qld Police Citizen’s Youth Club in the “Break the Cycle” program and;
      2. Complete an OLP within one month of final determination of the matter.

Was Ms Shearer the senior officer?

  1. [37]
    The CCC accept the principles of parity as relied upon by Ms Shearer, but submit that Ms Shearer’s conduct can be relevantly distinguished from the actions of the other officers because Ms Shearer was the senior officer at the incident and should have directed a different course of events.
  2. [38]
    Ms Shearer and Senior Constable Blunt held the same rank at the time of the incident. Ms Shearer had been a serving police officer for 13 years, Senior Constable Blunt for 8 years, and Constable Walsh for 2 years.
  3. [39]
    The CCC first submitted that responsibility for command at any incident is the senior officer who is present,[15]  relying upon the current version of the provision in the PSA Act in relation to responsibility for command.
  4. [40]
    However, as at the date of the incident on 28 July 2016 section 7.1 of the PSA Act provided that:[16]
  1. At any incident –
    1. that calls for action by police; and
    2. at which officers are present;

the officer who is responsible for taking such action, and for action taken is –

  1. the officer designated for the purpose in accordance with established administrative arrangements; or
  2. if there is no officer such as is referred to in paragraph (c) – the officer present who is most senior by rank; or
  3. if there is no officer such as is referred to in paragraph (c) or (d) – the officer present who is most senior by length of continuous service as an officer.
  1. [41]
    I asked for further submissions from the parties as to whether Senior Constable Blunt was the officer designated for the purpose of taking action in relation to traffic offences, given she and Constable Walsh were the officers on patrol on the night in question.[17]
  2. [42]
    Ms Shearer did not make any submissions in relation to the issue. The CCC acknowledge that the 1 July 2016 version of the PSA Act is the relevant legislation, however they submit that there is no guidance in QPS material as to the meaning of s 7.1(c) of the PSA Act and it is not possible to say who that provision might refer to. It is submitted that the answer to the question as to who is the most senior officer  defaults to s 7.1(d) and (e). It is said that in this case the most senior officer is Ms Shearer because of her longer period of service.
  3. [43]
    It is not disputed that in fact Ms Shearer had a longer period of service. I accept the submissions of the CCC that s 7.1(e) of the 2016 PSA Act is the relevant guide to seniority in this case, if no meaning can be given to s 7.1(c). On the basis of length of service Ms Shearer was the senior officer.
  4. [44]
    It is a different question as to whether Ms Shearer knew that she was the senior officer and that she should have taken command of the incident and ensured a breath test was undertaken.
  5. [45]
    Length of service is assessed by reference to police registration numbers or by officers making the relevant enquiry.
  6. [46]
    There is no evidence that such an assessment was undertaken. It is submitted that I should infer that Ms Shearer knew she was senior because she had seen Senior Constable Blunt around the Sunshine Coast and knew her from training. It is submitted that it is common sense that police officers in a smaller working community such as the Sunshine Coast are, would be familiar with the officers from neighbouring stations and their corresponding seniority. Those propositions are speculation and not sufficient for me to draw the requested inference.
  7. [47]
    It is also submitted that Senior Constable Blunt and Constable Walsh treated Ms Shearer as the senior officer at the incident. If that submission is intended to suggest that by those officers’ conduct Ms Shearer should have known she was the senior officer, I am not prepared to draw that inference.
  8. [48]
    I find Ms Shearer did not know at the time that she was the senior officer. I rely on an exchange in her interview with the Internal Investigation Group on 22 March 2017. When the issue was raised Ms Shearer said that she thought Senior Constable Blunt and she were both Senior Constables at the same rank and that other than recognising the uniform of a Senior Constable she would not know Senior Constable Blunt’s registered number or years of service when attending the incident.[18] Once apprised of the registration numbers Ms Shearer acknowledged seniority by years, but not in experience in traffic matters.
  9. [49]
    Ms Shearer was at the relevant time a Detective working in child protection. She was not deployed in the sort of duties relevant to the conduct of drivers. That was the area in which Senior Constable Blunt and Constable Walsh were deployed.
  10. [50]
    Also relevant to my finding is that because the legislation at the time as to who takes charge at an incident, is opaque and not reflected in any operational manual, it would seem unreasonable to suggest that Ms Shearer should have known that she was the senior officer and acted accordingly. It is possible that the greater clarity in more recent iterations of the PSA Act is intended to address that problem.
  11. [51]
    The CCC say that the following matters require a disciplinary declaration as to a sanction of dismissal. My comments follow the assertions.
    1. Had Ms Shearer remained employed by the Police Service a question of her fitness to continue to serve would have been central and is now central to a disciplinary declaration.
      1. The material does not disclose that the Commissioner of Police considered fitness to continue to serve was relevant. The Commissioner proposed a reduction in pay point from Senior Constable 2.8 to pay point Senior Constable 2.5 for a period of 12 months, subject to remedial conditions.
      2. Ms Shearer in fact remained in the police service after the incident in 2016 until 2021 when she resigned.
      3. The other officers involved in the incident were not considered unfit to serve and were disciplined in ways contemplated by the legislation as appropriate to achieve the object of disciplinary proceedings. Discipline is not intended to be punitive, but rather imposes an order to achieve the public protective purposes set out in s 219A of the CC Act.[19]
      4. In my view had Ms Shearer remained in the Police Service she would not be considered unfit to serve and she would have been disciplined in accordance with the range of other sanctions available in circumstances of misconduct, short of dismissal.
    2. Ms Shearer’s conduct was serious in terms of Charge 1 which resulted in a finding of corrupt conduct.
      1. Ms Shearer has acknowledged her conduct. She pleaded guilty to the criminal charge made against her. As to the seriousness of the conduct, as with all things there are gradations of seriousness. The outcome of the criminal proceeding was a relatively small fine and no conviction recorded. That does not suggest the Magistrate considered the matter to be at the upper end of the scale of serious conduct.
    3. Ms Shearer failed to protect the public, by causing a breath test not to be conducted.
      1. The conduct which caused a breath test not to be conducted has been found to be offering an opinion that Ms Shearer would not administer a breath test. Ms Shearer has accepted that Senior Constable Blunt did not administer the breath test because of that opinion. I have previously noted that Senior Constable Blunt was directed to administer a breath test by her senior officer before Ms Shearer came on the scene. It has previously been found that there is no evidence of Senior Constable Blunt being overborne by Ms Shearer nor was she given any express direction not to breath test the person in question. However, taking into account the conduct of all involved at the incident it is true that the public were not protected.
    4. Ms Shearer condoned the favourable treatment of a person said to be a Victoria Police Officer.
      1. This inference is available on the facts. However, it does not form a particular of Charge 1.
    5. Ms Shearer did not ensure other police officers complied with the law or did the right thing.
      1. I observe that Ms Shearer repeatedly told Senior Constable Blunt that she must make up her mind as to whether she would administer the breath test and that it was a matter for her.
    6. These matters would cause members of the public to lose confidence in the Queensland Police Service.
      1. Taking into account the conduct of all officers involved at the incident it is likely that their conduct would cause members of the public to lose confidence in the Queensland Police Service.
    7. There was an element of dishonesty in that Ms Shearer offered to support concealing a potential criminal offence.
      1. I note that the allegation is not a particular of Charge 1. No finding has been made with respect to the assertion of dishonesty by concealing a potential criminal offence.
    8. Ms Shearer counselled the other officers not to tell anyone about not breath testing the person.
      1. Acknowledging that Ms Shearer would appear to have done so, the allegation is not a particular of Charge 1.
    9. Ms Shearer did not tell the other officers not to delete body camera footage.
      1. I note that other officers raised the prospect of deleting body camera footage. The allegation is not a particular of Charge 1.
    10. Ms Shearer told the officers to say that all was “cool” when an Inspector later attended the incident.
      1. The previous decision noted that the comment was consistent with Ms Shearer suggesting that no further help is required. A cover up as suggested by the CCC was not given as a particular of Charge 1. I have previously found that the way in which the conversation played out could reasonably be interpreted as Ms Shearer suggesting that no further help is required.
    11. While Ms Shearer may not have intended to give advice, her opinion was followed by junior officers, and it was reasonable to think that they would do so.
      1. Ms Shearer has acknowledged with hindsight that expressing her opinion did cause Senior Constable Blunt not to administer a breath test.
    12. Senior Constable Blunt was not, as described in Ms Shearer’s submissions the “prime mover in what occurred” and that Ms Shearer merely offered a measure of reassurance to Senior Constable Blunt and Constable Walsh. Rather, Ms Shearer actively spoke to the driver, told Senior Constable Blunt what she would do and what to say to the driver.
      1. Accepting that conduct appears to have occurred, it cannot be seen in isolation. The officer who failed to act as directed was Senior Constable Blunt. She was the person who had in mind not administering a breath test and discussed it with the others present. In that sense I consider that she was the prime mover in what occurred.
    13. Accepting Senior Constable Blunt formed the view not to breathalyse the driver, it was Ms Shearer’s obligation to ensure that the breath test occurred, instead Ms Shearer went on to counsel the officers not to disclose the failure.
      1. I accept that conduct appears to have occurred, however the allegation is not a particular of Charge 1.
    14. Ms Shearer expressed a view that she would not conduct a breath test, and this coupled with encouragement to conceal the failure to breath test is not consistent with the expected high standard of conduct.
      1. Again, the question of encouragement to conceal the failure to breath test has not been raised as a particular of Charge 1.
  12. [52]
    With respect to those matters the CCC relies upon as justifying the sanction of dismissal, but which have not been raised as particulars of the charge, I do not consider it procedurally fair to rely upon those matters to justify the proposed sanction. As Dr Forbes says in his text Justice in Tribunals, a charge is one thing, particulars are another.[20] A charge identifies the legal duty or prohibition, while particulars set out the facts that are said to call for the orders proposed.[21] In Fletcher v Queensland Nursing Council, Muir JA observed that where a charge with six sub particulars had been treated as six charges of unsatisfactory conduct by the Tribunal considering the matter, there was a risk that the sanctions imposed were different than the sanction which would have been imposed had it been understood that there was only one charge. I conclude that findings with respect to the particulars of the charge are critical to the sanction imposed. If a finding has been made that the charge is made out on particularised facts, but later, other purported particulars of the charge are thrown up to justify a more serious sanction than might otherwise have applied, the affected individual will have been denied an opportunity to challenge the alleged facts.
  13. [53]
    In this case the hearing in relation to liability proceeded on the basis that Ms Shearer did not contest Charge 1 and its particulars.
  14. [54]
    Overall, I do not consider that Ms Shearer deserves a harsher disciplinary sanction than Senior Constable Blunt because of her seniority, when it was not apparent at the time that Ms Shearer was the senior officer with responsibilities of command at the incident.
  15. [55]
    Taking all these matters into account I am of the view that Ms Shearer made an ill-considered comment to a colleague who bore the primary responsibility to administer a breath test. Obviously, the conduct of Ms Shearer and of all involved was serious.
  16. [56]
    The CCC did not challenge the disciplinary sanctions imposed on the other officers, so that they stand as a reasonable response on the part of the Commissioner of Police to the conduct of the officers.
  17. [57]
    At the hearing I was referred to a decision of Compton v Deputy Commissioner Ian Stewart Queensland Police Service[22] which offers guidance as to how the Tribunal might consider whether termination of employment is appropriate. The Honourable JB Thomas said:[23]

It may be mentioned that the approach of our courts in determining whether an errant member of the legal profession or other professional person should be disbarred or not, is to search for the intrinsic character of the person being disciplined.

  1. [58]
    In coming to a view as to Ms Shearer’s intrinsic character I take into account that she honestly acknowledged her role in the events on 28 July 2016. She pleaded guilty to the criminal charge brought against her. The penalty imposed was relatively minor. She was fined and no conviction was recorded.
  2. [59]
    That can be compared to the stance taken by other officers who sought to deflect blame for their own failure to do their duty.
  3. [60]
    As noted, Ms Shearer did not contest the facts which formed the basis of Charge 1 made against her. I found that the conduct referred to in Charge 1 amounts to corrupt conduct within the terms of section 15 of the CC Act, without finding that the conduct would be a disciplinary breach providing reasonable grounds for terminating Ms Shearer’s services.
  4. [61]
    An ESC Complaint Summary was handed to me at the hearing. It records that Ms Shearer was not subject to any disciplinary sanction for any matter whilst employed by the Queensland Police Service. That is, she otherwise had an unblemished record.
  5. [62]
    Ms Shearer filed an affidavit in the proceeding recording that she suffers from an incurable form of blood cancer. Ms Shearer works from home for UnitingCare Australia as a group facilitator/counsellor for a Men’s Behaviour Change Program for domestic and family violence offenders. I consider that work to be worthy and an indicator of good character.
  6. [63]
    Having determined that it was not unreasonable for Ms Shearer not to realize she was the senior officer with responsibility for the incident, I accept the submissions made on behalf of Ms Shearer that the failures in question were collective failures and that it is not appropriate for her to be singled out for a disciplinary sanction more severe than that imposed on the other officers.
  7. [64]
    Taking all these matters into account and on the basis of the parity principle, which I accept applies in this matter, I do not consider that if Ms Shearer was still employed by the Queensland Police Service that any different penalty to that imposed on Senior Constable Blunt or Senior Constable Evans should be imposed on her.
  8. [65]
    As a result of this finding and in view of the terms of s 219IA of the CC Act I am unable to make a disciplinary declaration as I have concluded that dismissal, suspension, probation, demotion or reduction in rank are not disciplinary findings I would have made under s 219I(1) if Ms Shearer’s employment had not ended.[24]

Orders

  1. It is ordered that no disciplinary declaration is made.
  2. The non-publication application is refused.

Footnotes

[1] Crime and Corruption Act 2001 (Qld) s 15 (‘CC Act’).

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 ('QCAT Act’).

[3]  Ibid s 66(2)(d).

[4] Police Service Administration Act 1990 (Qld) s 10.1(5) (‘PSA Act’).

[5]  Ibid ss 10.1(4)(d), 10.1(5).

[6]  G E Dal Pont, Law of Confidentiality (LexisNexis Butterworths, 2015) 6.2; Earthquake Commission v Krieger [2014] NZLR 547, 558-59 [45]-[47].

[7] Dal Pont (n 6) 6.12.

[8] [2010] QCATA 89, [8]–[10] (citations omitted).

[9] [2021] QCAT 304, [83] ('Waller’).

[10] CC Act (n 1) s 219IA.

[11] Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld).

[12] McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380, [110]-[116]; Queensland College of Teachers v Duffin [2024] QCAT 298; La Macchia v Minister for Primary Industry (1986) 72 ALR 23, 33.

[13] CC Act (n 1) s 219IA(3)(a).

[14] R v Hurst [2014] QCA 168, [33]-[35].

[15] PSA Act (n 4) s 2.3AA.

[16]  Ibid s 7.1, as at 1 July 2016.

[17] Crime and Corruption Commission, ‘Statement of Leanne Joy Blunt’, Exhibit 1 in OCR024-20, 16 January 2018.

[18]  Interview with Naomi C’Ann Shearer (Queensland Police Service Ethical Standards Command, Internal Investigation Group, 22 March 2017).

[19] Crime and Corruption Commission v Lee (No2) [2019] QCATA 151, [53]; Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201.

[20]  J R S Forbes, Justice in Tribunals (The Federation Press, 6th ed, 2024).

[21]  Ibid [10.2]; See also Fletcher v Queensland Nursing Council [2009] QCA 364, [22] (Muir JA).

[22] Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384.

[23]  Ibid [41].

[24] CC Act (n 1) ss 219IA, 219I(1).

Close

Editorial Notes

  • Published Case Name:

    Crime and Corruption Commission v Shearer

  • Shortened Case Name:

    Crime and Corruption Commission v Shearer

  • MNC:

    [2024] QCAT 523

  • Court:

    QCAT

  • Judge(s):

    Senior Member Fitzpatrick

  • Date:

    19 Nov 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
2 citations
Jump To
Cite 1 - [2010] QCAT 384
Cite 2 - [2010] QCAT 384
Crime and Corruption Commission v Acting Deputy Commissioner Wright (No. 2) [2021] QCAT 304
2 citations
Jump To
Cite 1 - [2021] QCAT 304
Cite 2 - [2021] QCAT 304
Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151
2 citations
Jump To
Cite 1 - [2019] QCATA 151
Cite 2 - [2019] QCATA 151
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
2 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
Earthquake Commission v Krieger [2014] NZLR 547
2 citations
Jump To
Cite 1 - [2014] NZLR 547
Cite 2 - [2014] NZLR 547
Fletcher v Queensland Nursing Council[2011] 1 Qd R 111; [2009] QCA 364
2 citations
Jump To
Cite 1 - [2009] QCA 364
Cite 2 - [2009] QCA 364
La Macchia v Minister for Primary Industry (1986) 72 ALR 23
2 citations
Jump To
Cite 1 - (1986) 72 ALR 23
Cite 2 - (1986) 72 ALR 23
Lee v Crime and Corruption Commission [2020] QCA 201
2 citations
Jump To
Cite 1 - [2020] QCA 201
Cite 2 - [2020] QCA 201
McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380
2 citations
Jump To
Cite 1 - [2010] QCA 380
Cite 2 - [2010] QCA 380
Queensland College of Teachers v Duffin [2024] QCAT 298
2 citations
Jump To
Cite 1 - [2024] QCAT 298
Cite 2 - [2024] QCAT 298
R v Hurst [2014] QCA 168
2 citations
Jump To
Cite 1 - [2014] QCA 168
Cite 2 - [2014] QCA 168

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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