Voysey v Chief Superintendent Glen Horton
[2025] QCAT 199
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- Unreported Judgment
- Voysey v Chief Superintendent Glen Horton[2025] QCAT 199
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Voysey v Chief Superintendent Glen Horton[2025] QCAT 199
Voysey v Chief Superintendent Glen Horton[2025] QCAT 199
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Voysey v Chief Superintendent Glen Horton [2025] QCAT 199 |
PARTIES: | christopher voysey (applicant) v Chief Superintendent glen horton (respondent) |
APPLICATION NO/S: | OCR229-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 22 May 2025 |
HEARING DATE: | 9 December 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
IT IS DIRECTED THAT:
4:00pm on 14 June 2025.
4:00pm on 4 July 2025. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – POLICE – MISCONDUCT – review of a finding of misconduct by the applicant officer – nature of the review – where the applicant failed to follow management procedures in conducting and finalising an investigation – where applicant failed to refer the investigation to an office in charge before finalising the investigation – whether failure to have officer in charge sign off on the investigation constitutes misconduct – whether conduct carless, incompetent or inefficient – whether Matter 1 substantiated Crime and Corruption Act 2001 (Qld), s 219Q(1) Child Protection Act 1999 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Police Service Administration Act 1990 (Qld), s 7.1, s 7.2, s 7.4, s 7.8, s 7.34, s 7.35, s 7.44 Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123 Assistant Commissioner Brian Wilkins & Anor v Gunter (No. 2) [2021] QCATA 42 Deputy Commissioner Stewart v Dark [2012] QCA 228 Gunter v Assistant Commissioner Wilkins [2021] QCA 274 Heuston v Horton [2024] QCAT 432 Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 Willmott v Carless [2024] QCA 115 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Mr Nicholson of counsel instructed by the Queensland Police Service Legal unit |
REASONS FOR DECISION
Introduction
- [1]On 12 July 2021 the applicant filed an application to review the respondent’s decision that he had engaged in misconduct, as defined in the Police Service Administration Act 1990 (“PSA Act), in the manner in which he had investigated and finalised information received from a female child’s school about a sexual incident. As a consequence of the finding of misconduct, a sanction was imposed that he be demoted from Senior Constable 2.10 to Constable 1.6 for three months, suspended after six weeks, subject to no further grounds for discipline being committed for a period of 12 months from the date of the sanction.
- [2]The source of statutory right to review in the Tribunal is contained in s 219G of the Crime and Corruption Act 2001 (Qld). The conduct of proceedings relating to a reviewable decision are set out in s 219H:
A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).
- [3]The reviewable decision is not conducted pursuant to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), that is by way of a fresh hearing on the merits. As Judicial Member McGill explained in Heuston v Horton:[1]
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.
- [4]
A review or an appeal, ‘by way of rehearing’ is not the same as a fresh hearing on the merits. In particular, a reviewing tribunal which is conducting such a rehearing is constrained in its freedom to interfere with findings of fact which were based upon an assessment of the credit of a witness.
- [5]The issues in this review application are twofold. Firstly, whether the conduct to which the applicant admits, not having his OIC approve of him unfounding the occurrence, constitutes misconduct, as defined. Secondly, whether the applicant did in fact unfound the occurrence because, factually, he was unable to do so for the reasons stated in his submissions filed on 2 October 2024. It could only be finalised by a senior officer. This latter point may involve the reception of fresh evidence to be discussed below.
Background
- [6]On 21 September 2020 the applicant was invited to participate in an Abbreviated Discipline Proceeding (“ADP”), under s 7.10 of the Police Service Administration Act 1990 (Qld) (“PSA Act”) as a result of his failure to follow the correct procedures in closing off an investigation (“occurrence”), when the officer was satisfied that no offence had occurred, and no further investigation was necessary. The terminology used for finalising an “occurrence” in these circumstances is “unfounded”. The particular failure of concern was that the applicant did not get the authority of the Officer in Charge, Sergeant Pickett, (“OIC”) to use her delegation “to unfound the occurrence”.
- [7]Particulars of the applicant’s conduct in the investigation and his entries into the QPRIME computer system were set out in the ADP. The ADP included the particulars supporting the conduct referred to above. It also set out the allegation details and allegation type. It was alleged that the allegation type was misconduct.[3] The applicant was given a choice to accept the invitation to participate in the ADP process or decline. He elected to decline the ADP invitation, by signing it, on 8 December 2020.
- [8]As a consequence, an investigation into his conduct was instigated with him formally engaging in a directed interview on 31 July 2020. A statement was also provided by Sgt Pickett as to her concerns about the investigation by the applicant.
- [9]Subsequently on 17 December 2020 the applicant was issued with a Disciplinary Proceeding Notice (updated on 27 January 2021) in relation to the matters referred to above in the ADP. It was alleged:
Matter One
That on or about the 7th day of February 202 at Brisbane your conduct was improper in that you:
- Finalised an occurrence recorded on QPRIME as unfounded without prior consultation with your Officer in Charge; and
- Inaccurately recorded on the QPRIME occurrence entry you had received prior approval from your Officer in Charge to finalise the matter as unfounded.
- [10]The Notice then goes on to provide particulars for Matter 1(a) which is essentially a brief history of the applicant’s involvement in the investigation where information was received about a sexual incident between a young schoolgirl and her stepbrother. The particulars for Matter 1(b) related to the fact that the applicant had filed a supplementary report on QPRIME that the OIC (Sgt Pickett) had provided approval to finalise the occurrence as unfounded, when in fact this was not the case. The applicant was provided with all of the evidence obtained to support the Notice including a transcript of his directed interview and the statement of Sgt Pickett. These documents have been provided to the Tribunal.
- [11]The applicant provided a lengthy submission in response to the Notice setting out in some detail what had occurred with the investigation and why he took the actions he did. Although he concedes that he did not necessarily follow all procedures in conducting the investigation and finalising it, given he was interviewing a young child about a sensitive issue, he submitted that he went about it the best way he considered appropriate to ensure the child was at ease in the process. In doing this he relied on his 14-years’ experience in the Child Protection Investigation Unit (“CPIU”). Although he has made concessions about the method of investigation, he essentially contends that his conduct was not misconduct as defined in s 7.4 of the PSA Act.
- [12]The respondent considered all of the material and on 24 March 2021 found that Matter 1 was substantiated and constituted misconduct. After receiving further submissions from the applicant on the sanction to be applied, on 15 June 2021 the respondent imposed the following sanction:
Demotion from Senior Constable 2.10 to Constable 1.6 for three months, suspended after six weeks, subject to no further grounds for discipline being committed for a period of 12 months from the date of this sanction.
The particulars of Matter 1
- [13]Firstly, it is necessary consider the particulars of Matter 1(a) and the applicants response to them.[4] As the applicant accepted all but one of the seven particulars of conduct, I propose to provide a precis of those particulars. They are that he failed to: follow procedures by conducting an interview at the child’s school under s 17 of the Child Protection Act 1999; to have another officer with him when interviewing the mother and child; to use a recording device when conducting the interview, or record the questions and answers at the time; and, recorded the matter as unfounded without authority.
- [14]In response, the applicant accepts that on 31 January 2020 he was assigned a Child Protection file by his supervisor at the CPIU to investigate certain information about indecent treatment of a female child. The incident was reported to police by teachers at the child’s school. The information provided was that:
- A teacher had been told by a year five student that the nine year old female child her school friend there had been a sexual incident between her and her stepbrother aged 10.
- The information was “fourth hand” information.
- The incident had taken place at the family home.
- [15]Prior to 7 February 2020 the applicant had called at the residence, but no one was home. He then telephoned the child’s biological mother and left a message for her to call him back, which she did soon after. He advised her he was investigating an allegation, regarding a sexual incident between her daughter and stepson. He asked the mother if she would mind bringing the female child to the police station[5] to discuss the matter, to which the mother agreed.
- [16]The applicant accepts that on 7 February 2020 the mother and the child attended the police station. He noted that the child was holding her mother’s hand, clinging to her and appeared to be scared to be at the police station. He then commenced, what her referred to as a preliminary interview to ascertain whether there was any substance to the complaint. He concedes he did so without a corroborating officer and that he did not record the questions and answers at the time of the interview or use a digital recording advice. He considered a casual approach in the circumstances would put the child at ease and be more conducive to eliciting an accurate account of what occurred. Although it is alleged he did not record the interview in his official police diary, he did make some brief record of it later, after the interview concluded and the mother and child had left the police station.
- [17]The child told the applicant that she had made up the statement to her school friend that there was a sexual incident between her and her stepbrother. Further, she didn’t really understand what sex was and what she was saying.
- [18]During the interview, the applicant said he was conscious of the interaction between the mother and the child to see if there was any prompting of answers by the mother or there was any physical interaction between them. He was satisfied that the child was engaging directly with him and was not influenced by her mother’s presence. He concluded the child was just “parroting’ a statement she had heard at school. Also, she made the statement just “to be funny”.[6]
- [19]The applicant was satisfied as a result of the conversation with the child, in the presence of the mother, that the allegation he was investigating was made up by the child and that no offence had occurred. He did not see the need to engage the child in a formal recorded interview process, with another officer.
- [20]Then one comes to particular (vii) which is the nub of Matter 1 and that is as follows:
Subsequent to these events you completed a QPRIME supplementary report on this occurrence via PIR 2 portal and “unfounded” the occurrence, contrary to procedures and requirements of the Police Station’s C.P.I.U and you did not seek authority from the OIC to use their delegation to unfound the occurrence.
- [21]The applicant’s response to this particular is that he understood from previous experience and procedures adopted at the police station, having been in the Unit for 14 years:
That I was permitted to use the OIC’s delegation on the supplementary report to unfound an occurrence, without obtaining separate prior approval from the OIC; and I understood at the time that is was compliant with OPM 1.11.11.[7]
- [22]At the time of this incident Sgt Pickett was the relieving OIC at the CPIU commencing on 4 January 2020. In her statement she records how she came to notice that the occurrence investigated by the applicant was unfounded. She said:[8]
I located the QPRIME occurrence and noted an entry made by DSC Voysey on 07/02/2020. This entry was reflective of the occurrence sheet entry. This entry stated the added information that the matter was unfounded – approving OIC details Sharon Pickett…
……………
DSC Voysey used my OIC Delegation without permission to unfound an investigation he had not spoken to me about. The reason for the OIC Delegation prior to unfounding a matter is to ensure the investigation had been conducted thoroughly and completely. This is a twofold safeguard; to ensure an investigation is completed thoroughly and to mitigate risk to the QPS. There is no blanket use of my OIC Delegation within in the CPIU office. Other officers will speak to me about an investigation they have conducted, outline results of this and request permission to use my OIC delegation to finalise a matter.
- [23]With respect to this procedure the applicant stated:[9]
Over the past 14 years I have worked at the CPIU at the [same police station] all of my OICs (with the exception of Detective Sergeant Pickett) delegated their authority to experienced staff, to unfound matters that are straightforward routine matters. Generally, following the use of the delegation, an officer would inform the OIC either in person, email all by way of ‘task’, that a matter had been unfounded and the delegation used. I submit that this practise can be confirmed by my current substantive OIC.
Accordingly, I always and have for a long time believed it was common practice for experienced officers, when completing supplementary reports, do not have to separately seek prior approval from their supervisor OIC before recording the matter as unfounded. When Detective Sergeant Pickett commenced work at the [police station] CPIU I did not believe the process would be any different and she did not advise the officers otherwise. I note that in the Detective Sergeants email to Detective Sergeant Henderson, she confirmed that at the commencement of her relieving in the office she did not send emails to staff regarding the use of her OIC delegation.
It was for the above reasons that I did not seek prior approval from Detective Sergeant Pickett. In addition to this, on 7 February 2020 when I engaged in discussions with [the female child] Detective Sergeant Pickett was not working and therefore I would have been unable to seek her approval prior to completing the supplementary report…..I note that OPM1.11.3 states the supplementary report must be completed on the day that the information is received.
- [24]Having regard to the statement of Sergeant Pickett and the information provided by the applicant during the directed interview he conceded that he “nevertheless adopted the wrong process”.
- [25]In respect of the particular in support of Matter 1(b) he similarly concedes that his:
…reasons for recording the inaccurate information were that I believed I was permitted to use the OIC’s delegation to unfound the occurrence as this was common practice at the [police station] CIPU. Further, I believed I was compliant with OPM 1.11.11. At the time, I therefore understood that my recording and compliance with policy and protocol was accurate.
- [26]Apart from the directed interview, the only evidence of procedures of the CPIU at the police station was that of the applicant and Sergeant Pickett. There was no challenge to the applicant’s evidence of procedures prior to Sergeant Pickett’s relieving duty to confirm or otherwise challenge the applicant’s evidence of procedures during his time at the police station with other OICs. In fact, he suggested that this could be easily checked with his current OIC at the time he provided his submission. It seems this avenue of inquiry was not explored.
- [27]Having accepted the particulars of Matter 1(a) and 1(b) apart from the notebook recording, the applicant contended in his submission to the respondent that the conduct did not amount to misconduct. He referred to the definition in s 7.4 and some cases in support of this contention. He does accept that his conduct was “careless”. I will return to this submission later in these reasons.
The respondent’s consideration.
- [28]On 24 March 2021 the respondent delivered written reasons finding that both Matters 1(a) and 1(b) were substantiated and constituted misconduct. The respondent had regard to each of the particulars and the applicant’s response. In the section headed “Evidence and submissions discussion” he considered what he referred to as the “evidence” in support of Matter 1. This evidence was by reference to the particulars of Matter 1 which included making a decision not to exercise powers under s 17 of the Child Protection Act 1999 (Qld), which permits an authorised officer to interview the child at school. Also, the other matters of complaint are that he did not have another officer with him when he conducted the interview, did not use a recording device or take notes during the interview and that he relied on his experience in conducting the interview the way he did.
- [29]The respondent had regard to the applicant’s responses in the directed interview and concluded that he had a “sound understanding” of the processes to be followed in conducting an interview of this nature. He was also satisfied the applicant was aware of the requirements of concluding an investigation by requiring OIC review and recommendation. He concluded that there was no lack of understanding as asserted by the applicant, but he was an officer “happy to take shortcuts in order to finalise the matter”.
- [30]With respect to the diary entry in the notebook of the interview, he found that the record was not of a recorded conversation with the female child but only that a conversation occurred. They did not meet the required standard for an experienced officer of the applicant’s rank in the CPIU. I would observe that the notes are certainly brief, but they do record the substance of the conversation relating to the incident. The Respondent found particular v substantiated.
- [31]It seems that the respondent proceeded on the basis that the particulars themselves ought to be considered to determine whether the applicant engaged in improper conduct. The only relevance of this is to decide whether the applicant’s conduct was deliberate to shortcut the proper procedure. This approach was also contained in the submissions of the respondent in the appeal. However, although the respondent may be critical of the way the applicant carried out his duties, the improper conduct alleged is not that, it is the finalisation of the QPRIME occurrence as unfounded without OIC approval. All the particulars do is record the history of the conduct leading up to Matter 1. In other words, it is not alleged that the failure to have another officer with him in the interview, failure to engage s 17 of the Child Protection Act 1999 (Qld) and failure to record the interview electronically or in writing constituted improper conduct. They are not the substance of Matter 1. However, the respondent took all of that into account in coming to his decision.
- [32]Getting to the substance of Matter 1 then, and with respect to the applicant’s position that he relied on previous delegations, the respondent concluded that:
- The Qprime occurrence referred to in this Matter indicated you had received prior OIC approval, which was not only incorrect, but intended and deliberate. It was your intention to allow the matter to be finalised as “unfounded” in contravention of QPS policy and procedure.
- The conduct is not mere carelessness as submitted, but improper as it was designed to circumvent controls established by the Queensland Police Service to protect vulnerable members of the community and maintain community confidence.
- [33]The respondent went onto say that finalising the occurrence without scrutiny by the OIC demonstrated to him that the applicant disregarded the process and if the matter involving the child was placed before the Court, the conduct could have seriously compromised the integrity of the investigation. This latter point is supposition.
- [34]The conclusions reached about improper conduct by the respondent were certainly open having regard to the fact that the applicant proceeded on the incorrect assumption that Sergeant Pickett had simply adopted the practice in place for use of delegations prior to her appointment as relieving OIC. The assumption was misplaced because there was no evidence that this could be the case. The applicant knew the OIC was new to the Unit and therefore, firstly, he should have ensured that he had the delegation and secondly, it would have been a simple matter for him to discuss the investigation with her, or his line supervisor, before closing it.
- [35]In the directed interview he confirmed he did not speak to a supervisor or line Sergeant on the day he closed the occurrence. His reasons for not doing so were that it was a “routine type child protection file that we receive a hundred of, with exactly the same scenarios with kids telling other kids at school that something inappropriate had happened”. He further confirmed that he had recorded that he had sought OIC approval prior to unfounding the investigation on the PIR 2, when that was not the case. His reason for not doing so was because it was a “routine matter”. He also accepted that there was no “email or anything” from the relieving OIC to use the delegation.
- [36]What is notable in the directed interview is the absence of any reference to the assumed delegation to finalise an investigation as he had submitted to the respondent. In fact, it seems he simply did not turn his mind to the question of referring it to an OIC for approval. He said at [212][10] of the transcript of the interview:
I didn’t believe it needed to be reviewed, in view of my experience to be reviewed by her a supervisor the OIC. And, if there was something, that they didn’t agree with it would have been a simple matter of sending it back for further investigation.
- [37]I have referred to this evidence for two reasons. Firstly, it contradicts any assertion by the applicant that he had the delegated authority to unfound the investigation from Sgt Pickett. Secondly, it reinforces the respondent’s conclusions and goes to whether the improper conduct falls within the definition of misconduct.
Disciplinary processes in the Queensland Police Service
- [38]Part 7 of the PSA Act deals with the disciplinary processes of officers. The main purposes of the part are set out in s 7.1:
- to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and
- to ensure appropriate standards of discipline are maintained within the service to—
- protect the public; and
- uphold ethical standards within the service; and
- promote and maintain public confidence, and officers’ confidence, in the service.
- [39]This part of the PSA Act is activated when a complaint is received by the commissioner or the Crime and Corruption Commission (s 7.2).
- [40]Section 7.4 sets out the grounds for disciplinary action against a subject officer. Relevantly, for this review application they include if the officer:
- committed misconduct; or
- ……
- performed the subject officer’s duties carelessly incompetently or inefficiently; or
- ……
- contravened, without reasonable excuse–
- a provision of this Act or the Police Powers and Responsibilities Act 2000; or
- a code of conduct that applies to the subject officer; or
- a direction given to the subject officer by the commissioner under this Act or by a senior officer with authority to give the direction.
- [41]Misconduct is defined in s 1.4 of the PSA Act as:
misconduct means conduct that—
- is disgraceful, improper or unbecoming an officer; or
- shows unfitness to be or continue as an officer; or
- does not meet the standard of conduct the community reasonably expects of a police officer.
- [42]Despite the applicant’s submission that his conduct in finalising the occurrence could not amount to misconduct as defined, the respondent found to the contrary.
- [43]By reference to the definition for the conduct to be improper, it still must be such that it is conduct on a similar scale as “disgraceful” or “unbecoming an officer”.[11] In Assistant Commissioner Stephen Hollands v Tolsher[12] (‘Tolsher’), the Appeal Tribunal gave consideration to what “improper” meant in the context of disciplinary proceedings. The then President, Justice Carmody, said:
[5]In Mathieu v Higgins,[13] the term ‘misconduct’ was defined in an ambulance service disciplinary enactment as “disgraceful or improper conduct”. Although expressed in the alternative, it was treated as being “coloured” by “disgraceful”, to mean more than mere impropriety, performance deficiencies or misjudgement.
[6]On this approach, when used in a similar context, “improper” may be construed as denoting wilful indifference or wanton abuse of professional privileges and confidences or a real lack of integrity capable of eroding the trust and confidence in the officer’s moral character.[14]
[7]Thus, the issue here may be accurately characterised as whether the conduct is so “morally and socially blameworthy” that nothing short of a misconduct finding is called for.[15]
- [44]In considering the conduct, the respondent took into account the substance of the complaint under investigation. Despite the outcome, it was a serious matter being an allegation of indecent treatment of a 9-year-old female by a 10-year-old stepsibling. This, obviously, needed a thorough investigation. Once a conclusion was reached, the QPS Policies required it to be signed off by an OIC.
- [45]The respondent took into account the applicant’s failure to interview the child at the school in accordance with s. 17 Child Protection Act 1999 (Qld) and informed the mother of the complaint when the complaint involved a family member. I have a concern with this finding because that was not the subject matter of Matter 1. Further the applicant provided an explanation why he didn’t adopt this course. Because of the limited information provided, he told the respondent that he could not exercise the power under s 17 without first discussing it with the parents.[16] Despite his experience the respondent gave no weight to the submission of the applicant about why he adopted this approach. Nor was there any reference to previous practices at the police station.
- [46]Be that as it may, there was a clear failure on the part of the applicant to involve a supervisor or OIC. This may have led to a compromise of the investigation, although I am not quite sure how, and this is not articulated by the respondent. The respondent went onto say that:
Service policy is clear, the Officer in Charge is required to overview all investigations prior to their closure. This authority does not lie with you and is independent of any experiences you may or may not have had in the past.
Your actions in failing to comply with legislation and policy created a potential risk of further harm to the child, and adversely impact on the reputation of the Queensland Police Service, creating the seriousness of conduct, which has guided me to my determination.
- [47]The respondent then considered the statements in Tolsher referred to above and also in Orme v Atkinson:[17]
There needs to be some nexus or some factor which raises eh conduct another level or ‘puts it over the line’, so far as the reasonable expectation of the public are concerned
- [48]The respondent found that there was a clear nexus between the applicant’s conduct and his deliberate efforts to manipulate the overview process to raise the conduct to another level. He found that the conduct was misconduct. It is the “deliberate effort” which seems to underpin the finding of misconduct.
The appeal
- [49]In this appeal the applicant raises the same arguments put before the respondent as to the substantiation of the improper conduct and the classification of the conduct. The applicant makes the point, well in my view, that the particulars are not the substance of the complaint made against him, it is confined to the substance of Matter 1.
- [50]In his most recent submissions filed on 2 October 2024 he asserts he did not finalise the file on QPRIME. He says he completed the report and forwarded it for approval and finalisation. He has attached a copy of the report to the submission. This report was not part of the s 22(2) documents filed and therefore it is part of the record and should be taken into account. This document has the same content as the computer records in the s 22(2) documents. In particular the reference to:
Approving OIC details: Sharon Pickett
- [51]I cannot see that this additional material takes the matter further. Particularly with the admissions made by the applicant in the directed interview that the closing of the file was not approved by Sgt Pickett, (or a line supervisor) consistent with the records.
- [52]For the reasons stated above I cannot see that there is any error in the respondent’s conclusion that the applicant’s conduct in not obtaining OIC approval before unfounding the occurrence was improper.
- [53]The next issue in the appeal is whether this conduct, failure to obtain OIC approval, fell within the definition of misconduct. The conduct is not what is alleged in the particulars because they only recite the events leading up to the entry in the records finalising the investigation. If the allegations about the manner in which the investigation was conducted was improper, or even misconduct, this should have been specifically alleged in a separate Matter. It was not and it is only the failure to get the closing of the investigation signed off which is the alleged improper conduct. That seems to me to be plain.
- [54]In determining that the improper conduct was misconduct conduct, the respondent took into account:
- He failed to interview the child at school and spoke to the mother before speaking to the child in circumstances when another of her children were alleged to have been involved;
- The failure to follow policy may adversely impact the reputation of the Queensland Police Service “creating the seriousness of the conduct”;
- Although not specifically referred to under the heading “Conduct Classification” it is reasonable to infer the other failures were taken into account. In paragraph 26 of his reasons the respondent said:
As I previously mentioned when determining my classification of this matter, at no stage did you comply with policy and procedure, which had the potential to seriously compromise the investigation if it had been determined as a substantial crime.
- The applicant’s actions were clear decisions to take short cuts and avoid oversight.
- [55]No account was taken of the applicant’s statement that the occurrence would be checked by a supervising officer in any event. This in fact occurred when Sgt Pickett became aware of the occurrence and reported what the applicant had done.
- [56]The respondent emphasised the applicant’s failure to follow policy and procedures, this must be in reference to the interview processes. Also, some account, in the absence of any evidence to the contrary, should have been given to the systems in place at the CPIU before Sgt Pickett’s relieving duty. If what the applicant was saying about the delegations and procedures had been corroborated, as the respondent could easily have investigated, then that would have been a mitigating factor supporting the applicant’s.
- [57]Returning then to the definition in s 1.4 of misconduct, although the applicant’s conduct was improper can it be said that it was “disgraceful” or “unbecoming of a police officer”. This is the very point raised in Tolsher. The bar is higher, and the conduct must be such as denoting “wilful indifference” or “wanton abuse of privileges and confidences”.
- [1]The highest the conduct gets, according to the respondent, is “deliberate efforts to manipulate the overview process”. The finding that his conduct was deliberate is not based on any particular finding of fact but more of an inference having regard to all of the evidence before the respondent. This includes the manner in which he conducted the investigation. There was no finding that what the applicant was saying about the previous delegations was not true, nor that the applicant genuinely believed that he was following normal procedures. When drawing an inference, it is necessary to bear in mind what was said by Bond J said in Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [55] (‘Inghams Enterprises’):
The approach which must be taken to the process of inferential reasoning required in this case is clear: see per Gageler J in Henderson v State of Queensland (2014) 255 CLR 1 at [87]-[91] and Gordon J in Re Day (2017) 340 ALR 368 at [18], and the authorities which their Honours cite. Whether the subject of the inference is a particular fact, or the existence of a state of affairs:
...where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise.
- [58]There is no direct evidence of deliberate conduct but a careless approach to the method of investigation. When considering the failure to obtain OIC approval, the applicant proffered a reason about standard procedures in the police station, which could have easily been verified with other senior officers at the station. In the absence of this, there is no reason not to accept that the system in place was as described by the applicant. This being the case the evidence falls short of permitting an inference that the applicant engaged in “deliberate efforts to manipulate the overview process”. It was certainly “careless, incompetent and inefficient” but does not go to the higher level of misconduct. He should have been aware from his experience, despite existing procedures, of the need to at least inform Sgt Pickett (or the OIC at the time) of this investigation but it was not, in the circumstances, misconduct not to do so. The respondent was in error in finding that it was by reference to the definition.
- [59]Another factor is, as the applicant submits, that from the very beginning, the conduct was not considered by the QPS to be misconduct. Otherwise, it is reasonable to assume, he would not have been offered the ADP before referral for disciplinary action. I do not place too much weight on this submission because it is the factual findings that determine the nature of the conduct.
Conclusion on Substantiation
- [60]This review application is not a rehearing of the disciplinary proceeding before the respondent. The onus is on the applicant to demonstrate some error of fact or law which would warrant an interference with the respondent’s finding that the applicant’s conduct constituted “misconduct” as defined in the PSA Act. Although the applicant says he followed the investigative procedures under the OPM, he took it upon himself to proceed in a way which he considered best in the circumstance to ensure that child was not anxious about the interview process and so he could get her to open up about why she made the statement she did. In doing this he relied on his 14 years in the CPIU having investigated they types of complaints in the past.
- [61]The criticisms of him doing the investigation this way by the respondent may well be justified in the operational setting, but there the evidence falls short of establishing the conduct was deliberate to shortcut the investigation, and thus misconduct. In coming to this conclusion, the respondent was in error.
- [62]I therefore propose to set aside the respondent finding that the applicant engaged in misconduct as described in s 7.4(a) of the PSA Act. However, the conduct does fall within s 7.4(c).
Sanction
- [63]On 9 August 2021, the respondent imposed a sanction of demotion from Senior Constable 2.10 to Constable 1.6 for three months, suspended after six weeks, conditional upon no further ground for discipline being committed for 12 months.
- [64]Because this sanction was based on a finding of misconduct, now set aside, the sanction must be reviewed. The parties have not provided submissions on sanction and therefore it is necessary to list the matter for further submissions on sanction. It may well be, given the applicant has retired from the QPS, the parties can come to some agreement about that. Subject to any objection by the parties I propose to determine the question of sanction on the papers with directions for filing written submissions.
- [65]The orders of the Tribunal are:
- Matter 1 although substantiated, did not constitute official misconduct and the respondent’s decision that it constituted official misconduct is set aside.
- Subject to any objection by either party the further hearing on the sanction imposed by the respondent will be determined on the papers without an oral hearing.
Footnotes
[1][2024] QCAT 432, [2].
[2][2021] QCA 274, [2].
[3]S 21(2) documents page 4.
[4]I have purposely deleted some information in the particulars to ensure privacy.
[5]Purposely not identified.
[6]Section 21(2) documents page 017.
[7]Ibid page 22. OPM referring to the Operational Procedure Manual.
[8]Ibid page 123.
[9]Ibid page 23.
[10]Ibid page 96.
[11]Applying the ejusdem generis principle in statutory construction.
[12][2016] QCATA 123.
[13][2008] QSC 209.
[14]See, for example Pillai v Messiter [No 2] (1989) 16 NSWLR 197.
[15]Deputy Commissioner Stewart v Dark [2012] QCA 228 [42]-[43].
[16]Section 21(2) documents page 016.
[17]Misconduct Tribunal 17 September 1999.