HTI v Carless[2025] QCAT 20

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The applicant was sworn in as a police officer on in February 1969. By 2007 she had reached the rank of Sergeant. In 2013 she was, as Detective Sergeant, transferred into the Child Protection Investigation Unit at a police station in Brisbane.^[1]
2. [2]
   On 15 May 2020 the applicant was served with a Disciplinary Proceeding Notice under s 7.8 of the Police Service Administration Act 1990 (‘PSA Act’) in which it was alleged that between 2011 and 2018 she had engaged in various acts of misconduct. The Notice set out the various charges referred to as Matters 1 – 5 in all, and included particulars of the conduct to support each of the Matters. In general, they included allegations of allowing a juvenile access to Queensland Police Service (‘QPS’) Category “R” accoutrements when at the Station, unauthorised access to QPrime,^[2] and conduct which constituted improper and negative workplace behaviour against junior officers at the Station where she was a senior officer. The charges were formulated after an extensive investigation undertaken by a Senior Sergeant appointed by the Ethical Standards Command.
3. [3]
   On receipt of the Notice, the applicant, with the assistance of her solicitors and counsel, provided the Assistant Commissioner with a very detailed response to Matters 1 – 5. In that response she admitted some of the conduct, in particular showing the juvenile the particular accoutrement, accessing QPrime and some limited conduct in relation to her behaviour towards junior officers. The Assistant Commissioner considered that response and on 4 August 2020 found that all Matters had been substantiated, save for one particular in respect of Matter 1. He was satisfied that the conduct constituted “misconduct” under the definition in the PSA Act.

misconduct means conduct that—

1.  is disgraceful, improper or unbecoming an officer; or

2.  shows unfitness to be or continue as an officer; or

3.  does not meet the standard of conduct the community reasonably expects of a police officer.

4. [4]
   In his comprehensive reasons for so finding he indicated that he was considering a sanction of dismissal. He invited the applicant to make submissions on the proposed sanction.
5. [5]
   Again with the assistance of the applicant’s solicitors and counsel, further submissions on the proposed sanction were submitted to the Assistant Commissioner. She also provided ten references from colleagues in the QPS and others speaking to her work ethic and good character, which I might observe were impressive. She conceded that a sanction for her conduct was appropriate but contended that dismissal was manifestly excessive in the circumstances.
6. [6]
   The Assistant Commissioner considered these submissions and character references and in written reasons of 2 December 2020 decided that:

Your conduct warrants a serious sanction as a deterrent to all members of the Queensland Police Service such conduct by a serving police officer will be viewed as serious and unacceptable in circumstances by members of the Queensland Police Service, the chain of command and the Queensland community…^[3]

7. [7]
   He went on to say that the conduct eroded public confidence in the QPS and the appropriate sanction was dismissal. The applicant was served with the decision on 2 December 2020, which took immediate effect on service.
8. [8]
   On 18 December 2020 the applicant filed an application to review the Assistant Commissioner’s decision. It is apparent from the application that the applicant accepts that Matters 1 – 5 have been substantiated, but she contests some of the findings with respect to a number of the particulars relied upon by the Assistant Commissioner in Matters 1 and 4 on the basis there was insufficient evidence to establish the contested particulars of misconduct. She also contends the sanction imposed was manifestly excessive. Although this is in contention, this hearing is confined to substantiation and depending on that outcome there may be a further hearing in relation to a review of the sanction imposed by the Assistant Commissioner.

Legislative regime

9. [9]
   At the time of filing the application, the accepted practice for review applications of this type was for the Tribunal to produce the correct and preferable decision under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). That has now changed.^[4] 
10. [10]
    In Willmott v Carless^[5] the Court of Appeal has recently held s 20 is displaced by s 219Q(1) of the Crime and Corruption Act 2001 (Qld) (‘CC Act’). In answer to a case stated the Court said:^[6]

The question of law referred to this Court by the Tribunal should be answered as follows: The Tribunal’s review power under s 219Q(1) of the Crime and Corruption Act 2001 (Qld) is predicated on there being first shown legal, factual or discretionary error in the decision below.

11. [11]
    In Heuston v Horton,^[7] Judicial Member McGill discussed how a review under s 219Q(1) should now be conducted in place of s 20 of the QCAT Act. He said at [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.

12. [12]
    The first point to make is that there is no new evidence in this matter, and therefore the review is a rehearing on the original evidence before the decision maker, the Assistant Commissioner.^[8] The difference here is that in respect of the disputed particulars, there are credibility issues as to the underlying facts in support of the particulars. This relates mainly to allegations of improper and negative workplace behaviour towards officers junior to the applicant. In considering the credibility issues I bear in mind what Sofronoff P observed in Gunter v Assistant Commissioner Wilkins:^[9]

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.

13. [13]
    The constraint referred to is that stated by the High Court in number of cases.^[10] In Robinson Helicopter Company Inc v McDermott at [43] the Court said:

A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.

14. [14]
    Therefore, insofar as the applicant challenges the Assistant Commissioner’s findings of fact in support of those particulars of Matters 1 and 4 the subject of the review, she must satisfy the test referred to above.

Matter 1

15. [15]
    It is alleged in Matter 1:

That on 11 October 2018 your conduct was improper in that you:

1.  Permitted [a youth offender] unauthorised access to and handling of restricted QPS Category “R” accoutrements;

2.  Permitted [a youth offender] unauthorised access to a restricted area; and

3.  Conducted multiple unauthorised tests on a Taser in the presence of a youth offender (Name) within a restricted area.

16. [16]
    In support of this Matter, ten separate particulars were relied upon.^[11] In respect of (a), they related to allowing the youth offender to physically handle a magazine, containing live rounds, from the applicant’s service pistol and an Oleoresin Capsicum (‘OC’) spray cannister.
17. [17]
    The applicant conceded that she did allow the youth offender to handle a magazine from her service pistol. The magazine held a number of cartridges. The youth held the magazine in his hand and examined it then handed it back to the applicant. She then showed him the OC spray. He held the OC spray and she showed him how it was operated by lifting the safety flap to access the release button. The reason for engaging with the youth in this way, the applicant says, was to try a build a rapport with the youth to address his anti-social behaviour. Having accepted that she engaged in this conduct, Matter 1 was substantiated with the applicant’s concession as to particulars (i) – (iv) of the Further and Better Particulars.
18. [18]
    As for the balance of the particulars (v) – (x) in support of Matter 1 (b) and (c), these all related to accessing the restricted area with the youth offender. Particular (v) alleged that:

You escorted [the youth offender] into a restricted area where firearms and Tasers were stored in a locked safe…

19. [19]
    Mr Nicolson, who appeared for the Assistant Commissioner, conceded at the hearing that when the Assistant Commissioner’s findings are properly understood, he did not accept that particular (v) had been substantiated. That is because the room in which the firearms and Tasers were stored was not a restricted area.^[12] Also it was the fact that the firearms were stored in a separate area on a lower floor.
20. [20]
    Because the improper conduct alleged in (b) and (c) is reliant on the applicant’s actions occurring in a restricted area, and the Assistant Commissioner was not satisfied there was sufficient evidence to find it was a restricted area, therefore Matter 1 (b) and (c) were not substantiated. The effect of this, of course, is that if the sanction imposed is to be reconsidered, Matter 1 is confined to the conduct in (a) in relation to the magazine and the OC spray. It is also not contested that this conduct constitutes misconduct.

Matter 2

21. [21]
    It is alleged in Matter 2:

That on 8 March 2017 your conduct was improper in that you inappropriately accessed official and confidential information contained in the Queensland Police Service (QPS) computer system without an official purpose relating to the performance of your duties as a member of the Queensland Police Service by requesting a subordinate officer to access QPRIME…

22. [22]
    The particulars in support of this allegation, which are all accepted by the applicant, are in summary that:

    1. she did ask a Detective Senior Constable to check the driver’s licence status of her daughter;
    2. told the Detective Senior Constable it would look bad if the applicant conducted the checks;
    3. the Detective Senior Constable conducted the information check in circumstances where she feared she would be subjected to verbal attacks if she refused having regard to previous instances of abuse and aggressive and intimidating behaviour by the applicant;
    4. the applicant was provided with confidential information about her daughter by the Detective Senior Constable;
    5. the applicant was aware of the Commissioner’s Direction issued on 31 March 2016 in relation to unauthorised access to confidential information.^[13]
23. [23]
    The gravamen of this Matter, as expressed by the Assistant Commissioner, is that the applicant used her authority to require the Detective Senior Constable to undertake the unauthorised checks on QPrime to avoid any personal responsibility for those checks, and by doing so exposed the Detective Senior Constable to potential disciplinary action.
24. [24]
    Not only did she expose the Detective Senior Constable to disciplinary action, but she was in fact the subject of disciplinary action because of this conduct. This resulted in her being subject to an internal Local Management Resolution Plan with guidance from her Officer in Charge.

Matter 3

25. [25]
    It is alleged in Matter 3:

That between 27 February 2011 and 4 January 2017 your conduct was improper in that you inappropriately accessed official and confidential information contained in the Queensland Police Service (QPS) computer system without an official purpose relating to the performance of your duties as a member of the Queensland Police Service…

26. [26]
    There are ten particulars provided in support of Matter 3. They all relate to the applicant personally accessing QPrime to conduct checks and searches in relation to her teenage daughter. It is not controversial that the applicant’s daughter was having behavioural problems during this period which involved absences from school, drug use, charges of assault and driving offences. 
27. [27]
    The particulars alleged that the access commenced on 28 February 2011 and continued on a further nine occasions up to January 2017. The dates of access were all before the Commissioner’s Direction. Even so, the applicant agrees that the information sought in her searches did not relate to the performance of her duties as a member of the QPS but as a mother concerned about the welfare of her daughter.
28. [28]
    Although the Assistant Commissioner accepted the applicant’s explanation for accessing QPrime, he still found that the conduct of the applicant in relation to Matter 3 was misconduct and was done for personal reasons.

Matter 5

29. [29]
    I propose to deal with Matter 5 before Matter 4 because, again, the applicant does not challenge the Assistant Commissioner’s findings in respect of this charge.
30. [30]
    It is alleged in Matter 5:

That between 23 January 2018 and 30 March 2018 your conduct was improper in that you inappropriately accessed official information and confidential information contained in the Queensland Police Service (QPS) computer system without an official purpose relating to the performance of your duties as a member of the Queensland Police Service by requesting a subordinate officer to access QPRIME.

31. [31]
    The allegations here are similar to those in Matter 3. On two occasions, 24 January 2018 and 29 March 2018 the applicant asked an officer junior in rank to her, a Senior Constable, to access QPrime and undertake searches in respect of her daughter. The searches related to her daughter’s drivers licence and whether she had any points left on her licence. The applicant’s justification for this was that her daughter wanted to borrow her car and she was legitimately concerned that she may not have been licensed.
32. [32]
    The Senior Constable undertook the searches because like the Detective Senior Constable in Matter 2, she was concerned about reprisals from the applicant, harassment and bullying.
33. [33]
    Once again, at this time, the applicant was aware of the Commissioner’s Direction of 31 March 2016 in relation to the unauthorised access to QPrime. In requiring the Senior Constable to undertake these searches in the knowledge of the Commissioner’s Direction not only exposed the Senior Constable to disciplinary action, but she was also in fact disciplined and was subject to an internal Local Management Resolution Plan with guidance from her Officer in Charge.
34. [34]
    On the basis of the applicant’s acceptance of the conduct referred to in Matter 5, the charge was substantiated and the Assistant Commissioner rightly found that this was misconduct.

Observations about Matters 3 and 5

35. [35]
    The following observation is relevant to the contested particulars of Matter 4 in relation to the applicant’s alleged negative workplace behaviour as well as Matters 3 and 5. The Assistant Commissioner in considering corroborative evidence in support of complaints made by other officers at the Station, relied on “consistent evidence from other witnesses”,^[14] made a finding that “the evidence of the witnesses credible and consistent”^[15] is directly supported by the applicant’s own acceptance of the particulars in Matters 3 and 4.
36. [36]
    In Matter 3 particular (iv) the applicant did not contest that:

Detective Senior Constable ……. felt compelled to conduct the information check on your behalf as she feared she would be the subject of verbal attacks having been exposed to previous instances of abuse, and your aggressive and intimidating behaviour.

37. [37]
    Similarly in Matter 5 particular (v) she did not contest that:

Senior Constable …... stated that (sic) felt compelled to conduct the information check on your behalf as she feared that she would become a target for retribution and possible harassment and bullying and that you would make her life extremely difficult if she said no; and

38. [38]
    These concessions are essentially admissions of the applicant’s conduct and are relevant when considering the applicant’s submission that the Assistant Commissioner erred in having regard to the generalised nature of the complaints about the applicant’s behaviour by others in the Station referred to in Matter 4.

Matter 4

39. [39]
    It is alleged in Matter 4:

That on diverse dates between 1 January 2011 and 14 February 2019 your conduct was improper in that you engaged in negative workplace behaviour.

40. [40]
    There are 34 particulars in support of this charge of which 20 are contested. Those not contested relate to:

    1. Purportedly sending an email to another senior officer at the Station, a Detective Sergeant, but instead sending it to Detective Senior Constable W1 (‘DSC W1’), one of the complainants, by mistake. The content of the email was a complaint about the DSC’s work performance: “another [DSC W1] fuck up, and the tight little prick wouldn't even go a two-dollar scratchy with me”.^[16]
    2. Persistent and ongoing complaints about DSC W1, and others in the Station, wearing uniform issue socks when in plain clothes. This complaint was corroborated by another Detective Senior Constable who observed the applicant berating DSC W1 about this.^[17]
    3. Similar criticisms made to another Senior Constable in the Station but as reported by the Senior Constable, in a “an aggressive manner that it made him anxious and question whether he should attend for work the next day”;^[18]
    4. Using inappropriate language to another Detective Senior Constable in response to an email (produced) the following words, ‘do not pull shit like this again and embarrass the office’;^[19]
    5. Again being critical of another Detective Senior Constable about wearing uniform issue socks and his laundry habits.^[20]
41. [41]
    Although the applicant has accepted these particulars are substantiated, and amount to misconduct, I would observe that in view of my findings about the contested particulars below, there is some doubt as to whether all these admitted particulars do in fact amount to misconduct. However, they alone would not warrant the sanction of dismissal. Also, the contested allegations, if misconduct, and the admissions about accessing QPrime, are on the whole much more serious.
42. [42]
    The Assistant Commissioner found to the requisite standard that all of the contested particulars in Matter 4 were substantiated and that amounted to misconduct within the definition of the PSA Act. Apart from the definition, conduct amounting to misconduct has been judicially considered. The Assistant Commissioner relies on the statement of Federal Court in O'Connell v Palmer (1994) 53 FCR 429, following Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597:

The expression ‘disgraceful or improper conduct is of wide import…. we see no warrant for construing the words of regulation 18(1)(d) otherwise than according to their ordinary and natural meaning, construction which is consonant with the evident purpose of the paragraph when considered in the context of the discipline regulations as a whole.

43. [43]
    The definition was also considered by the Tribunal in Crime and Corruption Commission v Chief Superintendent Horton APM & Anor:^[21]

In Assistant Commissioner Stephen Hollands v Tolsherthe Appeal Tribunal considered Mathieu v Higgins and the term ‘misconduct’ in an ambulance service disciplinary enactment to mean more than ‘mere impropriety, performance deficiencies or misjudgement. In Tolsher the Appeal Tribunal said, and I agree, that ‘improper’ denotes wilful indifference or wanton abuse of professional privileges and confidences or a real lack of integrity capable of eroding the trust and confidence in the officer’s moral character.

[footnotes omitted]

44. [44]
    This last statement is more akin to what needs to be considered in these circumstances, where all of the impugned conduct occurred in the workplace. Some of the conduct was clearly a result of personality clashes, and mutual dislike. As to the applicant’s competence as a police officer, the references included in the material on sanction demonstrate she was more than able in this regard.
45. [45]
    Although the facts alleged in the particulars may be substantiated, they still must constitute misconduct before a sanction can be imposed. For convenience, I propose to proceed, in respect to each contested particular, on the basis of firstly, whether there is any error in finding substantiation and secondly, whether there was error in concluding it constituted misconduct, bearing in mind the Assistant Commissioner’s conclusions in his reasons at page 84:

Having regard to the material and your submissions, I am reasonably satisfied on the evidence available to me the particulars of Matter 4 are substantiated, and I find your conduct was improper and amounts to misconduct.

46. [46]
    I will address the contested particulars of Matter 4, some of which I will combine because they are of a similar nature.

Contested particulars of allegations made by DSC W1

47. [47]
    Contested particulars:

1.  You frequently berated [DSC W1] in the presence of other staff, stating he was unsuitable for Plain Clothes duties, a claim you were unable to substantiate when questioned by [DSC W1].

4.  You persistently found fault with [DSC W1’s] work performance, insisting he sits at a desk near the Sergeant's office so that you could keep an eye on him.

48. [48]
    In her submissions to the Assistant Commissioner, the applicant denies frequently berating the DSC or telling him he was unsuitable for plain clothes duties. She does admit that she had to speak to him on two occasions about his interest in a detective appointment. The discussions were constructive criticism in providing advice about taking careful note of what is being said by interviewees and looking for discrepancies in versions of events. The applicant had noted, in her opinion, while working with the DSC he appeared to be forgetful and she felt it her duty to speak to him about these issues. There were also issues about him finalising files in a timely fashion which further justified intervention on her part.
49. [49]
    The applicant was concerned about the DSC’s mental well-being due to un-related personal issues in his home environment. This prompted the applicant to meet with him in a local café to discuss and assist with these issues as they related to his work performance.
50. [50]
    She maintains that all conversations were polite and appropriate. She submits that all her interactions with the DSC were reasonable action management in her role as his superior in rank.
51. [51]
    All of the above she submits contradicts the allegations in this particular and insofar as there were occasions to speak to the DSC, they were justified. Further, she submits that the allegation is so lacking in particularity and uncorroborated that it does not meet the relevant standard of proof under the Briginshaw principle to be substantiated, bearing in mind the seriousness of the consequences.
52. [52]
    The Assistant Commissioner rejected the applicant’s response to the complaint. He relied on the evidence of other officers at the Station who made similar complaints about the behaviour of the applicant generally when at work. He relies on this “similar evidence” in relation to nearly all of the complaints made against the applicant and thereby preferred the evidence put forward by the DSC (and other complainants). The Assistant Commissioner said:

However, the evidence from several other members of the [Station] indicates to me you often used less than polite conversation in your management of staff, and often berated or were aggressive in your dealings with them. Each member provided similar information, outlining your conduct towards them and, in some cases, eyewitness accounts of your conduct towards others. In each case there were clear similarities. On considering all the evidence of witnesses, I am satisfied there is sufficient evidence regarding the manner in which you conducted yourself in the workplace, I can be satisfied, on the balance of probabilities, the event as outlined by [the] the DSC occurred and particular (ii) is substantiated…

53. [53]
    Clearly, in respect of this compliant, and others to be discussed, the Assistant Commissioner was faced with a credibility issue insofar as having to decide between the versions given by the complainant officer and that of the applicant. As was discussed in Heuston at [3]:

…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.

54. [54]
    In Heuston, except for one point there was no factual dispute. In respect of that point of difference it was decided as a matter of inference and it was held that on the rehearing the Tribunal was in good a position as the decision maker whether or not to draw that inference.^[22] In MAM Mortgages Ltd v Cameron Brothers^[23] at [7] the following statement was made in respect of a finding about the credibility of a relevant witness in the trial in deciding a factual issue:

It is a conclusion that was reached by the trial judge by a process of inference from facts proved or not contradicted or not challenged at the trial, as to which an appellate court is in as good a position as the trial judge to form an opinion on the matter in issue: see Warren v Coombes (1979) 142 CLR 531.

55. [55]
    Although there is some generality about the statement of the Assistant Commissioner in respect of the evidence of similar behaviour, he was clearly relying on the consistency in the statements of other officers at the Station who interacted with the applicant about her behaviour. He did not specifically refer to what Detective Senior Sergeant C (‘DSS C’), who worked closely with the applicant, said about her, in a directed interview summarised in the Internal Investigation Report^[24] where the Detective Sergeant “strongly denied” the allegations about the applicant’s conduct. He had not witnessed any such conduct but he did say that she had a forthright leadership style. He further stated that that she expected a high standard of behaviour and professionalism of all staff and she was an “old school” detective. It is unclear what this means in the context of the working environment at the time, and it was not explored by the Assistant Commissioner,^[25] nor was the Detective Sergeant’s report given any weight, which is surprising given the longstanding working relationship between them.
56. [56]
    Leaving aside the allegations of the specific complainants, Detective Sergeant P (‘DS P’), who was working at the station, not only observed the applicant’s behaviour against the complainant officers, which he described “misuse of authority”, he also told the internal investigator that he spoke to the applicant about it:

He told the SM (subject member) numerous times she could not speak to staff as she did & say the things she was saying….in his opinion many staff were unable to communicate with the SM and tell her to stop with their behaviours.^[26]

57. [57]
    The evidence of DS P certainly underpins the findings of fact by the Assistant Commissioner as to the general behaviour of the applicant in the workplace. That, with the evidence of the complainants, left it reasonably open for him to reach his conclusions about credit in the absence of a contested hearing where the evidence could be tested.
58. [58]
    Also, what the Assistant Commissioner was really relying on was in the nature of similar fact evidence, a concept that would not be foreign to him. In the Medical Board of Australia v Gomez,^[27] the then Deputy President of the Tribunal, Judge Horneman-Wren SC, considered the use of similar fact evidence in the Tribunal where s 28(3) of the QCAT Act provides that the rules of evidence do not apply and the Tribunal may inform itself in any way it considers appropriate. However, that statement was qualified by reference to the standard of proof required for the particular charge under consideration.^[28] His Honour referred to a statement in Nursing and Midwifery Board of Australia v Singh^[29] which he adopted:

In the Tribunal’s view in considering the evidence in this case, in which serious allegations are made against a nurse, it should have regard to the principles underlying the rules relating to tendency and coincidence evidence, even though it is not required to apply those rules. In particular, the Tribunal is conscious of the strong prejudicial effect, when considering whether the respondent is guilty of a particular disciplinary charge, of evidence by other complainants about other alleged acts. We proceed on the basis that there must be a high level of probative value in such evidence, before it should be taken into account in determining whether the respondent is guilty of the first allegation.

59. [59]
    Although this review is not a merits review under s 20 of the QCAT Act, I see no reason why this statement of general principle with respect to the probative value of similar behaviour should not apply to the reasons of the Assistant Commissioner in coming to his decision.
60. [60]
    In relying on the evidence of similar behaviour, the Assistant Commissioner preferred the version of DSC W1 concerning the applicant’s insistence he sit at a desk near the Sergeant’s office. He also had regard to what DSC W1 said in the directed interview.
61. [61]
    Having accepted the evidence of the other officers working in the Station, somewhat corroborated by DS P, there is no basis I can see which would warrant interference with the Assistant Commissioner’s findings in respect to particular (ii).
62. [62]
    However, while the fact of requiring DSC W1 to sit at a particular desk is substantiated, it does not in my view fall within the definition of misconduct. It could not be said that this conduct is disgraceful, improper or unbecoming an officer or that it shows unfitness to be an officer on the part of the applicant. The Assistant Commissioner did not consider this in terms of the definition. It is an error of law to find this is misconduct.
63. [63]
    Contested particular:

v. You encouraged [DSC W1] to quit the Army Reserves and the Dignitary Protection Squad as it was affecting his work performance, a fact he was able to refute after presenting his arrest record to you;

64. [64]
    Again, here there is a credit issue. The applicant acknowledged discussing this issue with the DSC. She said the discussion was polite and well-intended and a reasonable suggestion to assist with his career. That was rejected by the Assistant Commissioner on the basis that this polite, well intentioned approach was inconsistent with the overall evidence about the applicant’s behaviour at the Station. Faced with the two versions, and accepting that there was a conversation about the issue, the DSC’s version was preferred.
65. [65]
    Even so, if as a senior officer, the applicant was of that opinion, even if misguided, it is difficult to see how taking steps to improve the DSC’s work performance amounts to misconduct. If this particular does not fall within the definition it cannot be substantiated as misconduct. This is an error of law.
66. [66]
    Contested particular:

vi. You refused to review or sign off on a surveillance application nor would you sign off on [DSC W1’s] training material. You would not provide any valid reason for obstructing an investigation or the career progression of the Senior Constable;

67. [67]
    This allegation is an operational matter. The applicant denies she refused to sign off on a surveillance application or obstructed his career progression. The Assistant Commissioner relies on the only evidence in support of this being that of the DSC and the general allegations of behaviour by others. There are some things that can be said about this. Firstly, there is no evidence that the Assistant Commissioner actually had regard to DSC W1’s personal record to see if his career progression had been thwarted by the applicant. Secondly, no regard was had to the fact that the request for the surveillance was actually necessary in view of the fact that there is no evidence I can see of an actual investigation. Addressing these issues may well have supported the Assistant Commissioner’s credit finding.
68. [68]
    Accepting the Assistant Commissioner’s findings on credit, it remains an operational matter and a judgement call by the applicant which she was, presumably, entitled to make. Despite the fact the DSC may have been aggrieved by this decision, it does not fall within the definition of misconduct. The Assistant Commissioner does not say how it is misconduct in the reasons. Again there is an error of law and the particular is not substantiated as misconduct.
69. [69]
    Contested particulars:

viii. You yelled at [DSC W1] because he was working at his computer console and did not immediately look up to you when you started speaking. You stopped yelling when he turned to look at you and apologised;

ix. You accused [DSC W1] being forgetful [sic]. You dismissed his response stating that he wasn't and insisted that he see a specialist or to do external training to improve his memory;

x. On occasion, after you finished raising your voice towards [DSC W1] you would immediately change your tone towards him nicely asking him how he was coping and inquiring after his family;

xi. You threatened to have [DSC W1] removed from the CPIU due to his poor work performance, inability to communicate with people, failure to comply with directions, poor memory and inability to follow directions;

xii. You were unable to provide any evidence to support any of the criticisms levelled at [DSC W1] ;

xiii. You berated [DSC W1] for asking someone else a question when he should have been asking you and no one else. You informed [DSC W1] that it was nothing personal however, you didn't think he was suitable to be a detective and that you would be talking to [DSS C] with a view to "getting rid of him';

70. [70]
    The Assistant Commissioner relies on uncorroborated statements by DSC W1 to support his finding on substantiation. The applicant makes a number of submissions in response in denial of any inappropriate conduct on her part.
71. [71]
    She contends that the allegations themselves lack particularity as to when and where these events took place and therefore she is unable to properly respond. She was of the opinion, as the senior officer, that the DSC did seem to have poor recollection of events and she counselled him about the importance of a reliable memory in carrying out their duties.
72. [72]
    She further denies any specific prying into family affairs, but she would generally inquire about family as she did with other officers. This was normal to try and improve cohesion within the working environment. I would observe that it would not be unusual in the workplace for such conversations to occur.
73. [73]
    She accepts she, as the senior officer, may have been critical of the DSC’s performance from time to time while he was at the station. When this occurred she would discuss this with the officer, as she was obliged to do, and therefore this was reasonable action management in the workplace.
74. [74]
    The Assistant Commissioner was again faced with contradictory versions of events about the management style of the applicant. There was no direct evidence to support one version with respect to the particular complaints so he took into account the similar complaints about the behaviour of the applicant to draw the inference that the version provided by the DSC was the more probable.
75. [75]
    For reasons already stated this was reasonable in the circumstances and in line with cases such as Fox, and there is no basis to interfere with that conclusion.

Contested particulars of allegations by Detective Senior Constable B (‘DSC B’)

xvi. You consistently inquired into the personal relationship of [DSC B] and the circumstances of her separation from her then partner which made her feel uncomfortable;

xvii. You discussed the work performance of a peer with [DSC B] who felt uncomfortable and felt discussing such concerns with her as a junior subordinate was inappropriate;

76. [76]
    The Assistant Commissioner found this allegation as particularised was substantiated. He again relied on the evidence of others as to the general conduct of the applicant with respect to how she dealt with subordinates, and although not said, the evidence of DS P.
77. [77]
    In her submissions to the Assistant Commissioner, she contends she had a good working relationship with DSC B and was surprised by the allegations made in the particulars. She does admit having a conversation with her at the time of DSC B’s separation to support her during a difficult time. She denies prying into her personal relationship and states the conversation was to provide support through a difficult time, bearing in mind the role of a superior is to support officers both in their professional career and where necessary and appropriate, in respect of personal matters to assist with coping with the stressful work of policing.
78. [78]
    It seems to me that the Assistant Commissioner did not give any weight to these matters and in his reasons conflated the seriousness of any discussion between the officers about separation.
79. [79]
    Furthermore, this particular does not satisfy, in my view, the definition of misconduct under the PSA Act, and therefore the Assistant Commissioner was in error. That is the case, even accepting DSC B’s complaint.
80. [80]
    The applicant denies discussing the performance of another officer with DSC B. Again the credit issue arises, being whose evidence on the point should be accepted. It is easy to understand that on a day to day basis, general comments may be made to work colleagues about other work colleagues: this is just human nature. However, in this instance it is alleged that the applicant specifically called DSC B into her office to discuss the work of another officer. The particulars of the conversation provided in her interview are not likely to be made up. Having regard to the evidence of other officers, this does seem consistent with the applicant’s management style.
81. [81]
    Once again, although there is no basis to interfere with the finding of factual substantiation, this conduct itself would not satisfy the definition of “misconduct” under the PSA Act. The Assistant Commissioner was in error in so finding.

Contested particulars in respect of allegations by Detective Senior Constable M (‘DSC M’)

82. [82]
    In addition to the admitted conduct particular Matter 4(xxii) referred to in paragraph 40(d) above, it is further alleged that in respect of DSC M that:

xxiii. You denigrated [DSC M] on a regular basis by yelling and swearing at him regarding his work performance indicating to him that he was useless and incompetent to the extent that he felt victimised and humiliated, compelling him to engage the services of a psychologist suffering from heightened anxiety;

xiv. You were advised by [DS P] on numerous occasions not to communicate or act the way you did in such an aggressive manner towards other staff members and that your behaviour towards subordinate staff was unreasonable;

83. [83]
    The Assistant Commissioner relied on the admissions made about the email in (xxii) and that the applicant did yell at DSC M on at least two occasions because of his poor work performance, as the primary support for his conclusion on substantiation of these particulars. He also relied on the generality of the evidence of behaviour by the applicant by other officers. The body of evidence compiled about the applicant’s behaviour cannot be ignored, and this was raised with the applicant’s counsel at the hearing. Short of finding a conspiracy against the applicant by all the complainants to discredit the applicant, it must have some probative value. That is particularly so where her own admissions are consistent, to a degree, with that body of evidence.
84. [84]
    The Assistant Commissioner preferring the evidence of DSC M to that of the applicant was understandable in the circumstances and again, there is no apparent reason to disturb that finding of substantiation and misconduct.

Contested particulars of allegations by Senior Constable W2 (‘DSC W2’)

xxviii. On 19 November 2018, you refused to allow [DSC W2] to continue a briefing after berating him over his wearing blue police issue socks and querying the laundering cycle of his clothing;

xxix. You abused [DSC W2] stating that, ‘he was as useless as tits on a bull, don't listen to anything he has to say, and that he was not a detective’s arsehole’;

85. [85]
    The issue of the “blue socks” is a repeating theme in the applicant’s relationship with the male officers at the station. As for the “laundering issue” again it is somewhat petty and hardly a basis for “misconduct” as defined. It was obviously an irritation for the officers involved and the applicant did not, obviously, pick up on the irritation because she admits engaging in banter about the issue of socks over a period of time. The criticism levelled at the applicant about this by the Assistant Commissioner suggests there should be no levity in the workplace, and it points to a resentment of the applicant whereby the officers are relying on pedantic items to discredit her.
86. [86]
    As for the comment made about the Constable’s abilities as a police officer, this is denied by the applicant but found to be substantiated by the Assistant Commissioner. For reasons already stated, there is no basis to overturn this finding of fact, but the comment, although derogatory in itself, could not constitute misconduct as defined. In this respect the Assistant Commissioner was in error in concluding it was misconduct.

Contested particulars alleged by Senior Constable A (‘SC A’)

xxxi. You regularly approached [SC A] when she was alone in the office and verbally abused her regarding her work performance and her family;

xxxii. You informed [SC A] that she was known for her lying stating to her, ‘what do your husband and kids really think about you, you're supposed to be somebody's wife and mother, you're a disgrace’;

xxxiii. You stated to [SC A], ‘I hate you, you're so vilifying’;

xxxiv. You criticised the appearance of [SC A] and stated that she would never be promoted to Sergeant in this office.

87. [87]
    In the applicant’s submission to the Assistant Commissioner, she relates the history of the relationship between herself and SC A. This relationship is not considered in the Assistant Commissioner’s reasons; he simply accepts unreservedly the Senior Constable’s version of events in relation to the comments made above. He relies on the generality of evidence concerning the applicant’s behaviour in the workplace to support his conclusion of misconduct. By all accounts there was a toxic relationship between these two individuals. The applicant said she was crudely criticised by SC A and vice versa.
88. [88]
    What is not contested is the allegation in Matter 2 that the applicant directed/asked SC A to conduct unauthorised searches on QPrime. However this was before the Commissioner’s direction.
89. [89]
    The allegations made in these particulars are so serious that, having regard to the Briginshaw test, the Assistant Commissioner should have at least had regard to the history of the relationship to make an informed decision rather than just relying on the generality of the applicant’s workplace behaviour in circumstances where there was no other corroboration. That is particularly so where the words allegedly spoken reflect personal issues rather than workplace or policing issues.
90. [90]
    Had there been a hearing, these matters could have been put to the Senior Constable, whose response would have provided some greater insight as to where the truth lies.
91. [91]
    In my view the reasons by the Assistant Commissioner for concluding these particulars are substantiated are deficient, and do not explore the whole of the relationship between them. Further, given the personal nature of the comments, although occurring in the workplace, they do not amount to misconduct as defined.

Conclusion

92. [92]
    I have come to the decision that although the factual bases for the contested particulars have been substantiated,^[30] a number of them do not fall within the definition of “misconduct” under the PSA Act by reference to the authorities cited above.
93. [93]
    This of course means that Matter 4 still remains substantiated, but supported by fewer particulars.
94. [94]
    There are a number of observations, helpful I hope, that can be made about this review application. Firstly, I would observe that apart from those particulars admitted by the applicant in Matter 4, the balance rely on credit findings in circumstances where the evidence of the various complainants has not been tested to any degree. The similarity of the evidence given about the applicant’s conduct generally in the workplace is certainly of assistance in forming a view about whose evidence should be preferred. However, these events occurred over a number of years between 2011 and 2019, with the investigation commencing in 2019. The disciplinary proceeding followed in 2020 culminating with the applicant’s dismissal in December of that year.
95. [95]
    One is left to wonder why complaints about her behaviour, particularised in Matter 4, were not forthcoming prior to this investigation so the applicant’s conduct could be managed internally without necessitating a dismissal. It must have come to the notice of senior officers during that time (Sgt P was aware of it). Also, over this period, human nature dictates that accuracy about what was said or done, when and where, will be attenuated with some vagueness or uncertainty.
96. [96]
    Secondly, there can be no doubt that the admissions by the applicant with respect to Matters 1, 2, 3 and 5 are very serious and warrant the imposition of a sanction to reflect the seriousness and to uphold the ethical standards within the service and maintain the public’s, and other officers’, confidence in the service. This is particularly relevant to requesting other officers to access QPrime for the applicant’s own personal benefit. However, with respect to the interaction with other officers in the Station, the applicant’s behaviour was obvious to other senior officers, and not addressed by them or referred up the chain of command, which allowed the status quo to remain unchecked for a number of years thereby effectively giving tacit approval to the way the applicant was managing staff. Had this been addressed earlier within the administration the outcome for the applicant may not have been so harsh. I note that the Assistant Commissioner does not address any of this in his reasons which may have been a mitigating factor.
97. [97]
    Thirdly, the fairness of the now review process is particularly important where a career officer’s future in the QPS is at significant risk, as it clearly was here. Prior to the judgment in Willmott the applicant would have had the benefit of a merits review in the Tribunal where some of the shortfalls in the internal decision making process, e.g. dealing with credit issues and delay, could be addressed. Although casting absolutely no criticism at the decision makers in the QPS the question is inevitably raised as to the independence of that process without the necessary checks and balances that are provided in the former merits review process. In circumstances such as these, where credit is critical to the outcome, the current review process which is more in the nature of an appeal, seems to be deficient. However, that is a matter for the legislature.
98. [98]
    Although the second respondent had been added as a party to the proceeding, it contributed little to the conduct of the case. It did however file an application at the hearing seeking a non-publication order. It is necessary because s 12 of the Information Privacy Act 2009 (Qld) and 10.1 of the PSA Act prohibit the publication of any information that would identify the police officers mentioned in this decision. An order will be made accordingly.

Orders

99. [99]
    The orders following these reasons are:

1. Particulars (ii), (v), (vi), (xvii), (xviii), (xxix), (xxxii), (xxxiii) and (xxxiv) relied on in Matter 4, although substantiated, did not constitute official misconduct and the respondent’s decision that they constituted official misconduct is therefore set aside.
2. The decision of the respondent that the four (4) disciplinary matters involving the applicant is confirmed.
3. The further hearing of the review, to deal with any challenge to the sanction imposed, is adjourned to a date to be fixed upon the applicant filing an application in Form 40 for the proceeding to be listed for a directions hearing within 30 days of the date of this decision.
4. Publication of information that may identify a person referred to in the filed documents who is not a police officer investigating the applicant’s conduct, and who is not identified in the reasons for decision is prohibited, except to the parties and their representatives and to any tribunal or court dealing with any appeal against the tribunal’s decision in this matter.