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Vercoe v Deputy Commissioner Taylor[2025] QCAT 58

Vercoe v Deputy Commissioner Taylor[2025] QCAT 58

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Vercoe v Deputy Commissioner Taylor & Anor [2025] QCAT 58

PARTIES:

Lance Vercoe

(applicant)

v

Deputy commissioner taylor

(first respondent)

Crime and corruption commission

(second respondent)

APPLICATION NO/S:

OCR259-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 February 2025

HEARING DATE:

21 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. 1. Particular (iii) relied on in Matter 1, although substantiated, did not constitute official misconduct and the first respondent’s decision that it constituted official misconduct is set aside.
  2. 2. The decision of the first respondent that Matter 1 is substantiated and constituted official misconduct is confirmed.
  3. 3. The sanction imposed by the first respondent in respect of Matter 1 is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – POLICE – MISCONDUCT – review of a finding of misconduct by the applicant officer – nature of the review – where the applicant accessed information using the Queensland Police Service computer system – where the information accessed was not for an official police purpose – where applicant’s access to information raised a conflict of interest – whether all particulars of Matter 1 substantiated – whether sanction imposed by the respondent manifestly excessive – whether valid exercise of discretion. 

Crime and Corruption Act 2001 (Qld), s 219Q(1)

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, Schedule 2 Dictionary

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

Acreman v Deputy Commissioner Pointing [2021] QCATA 133

Assistant Commissioner Brian Wilkins & Anor v Gunter (No 2) [2021] QCATA 42

Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123

Briginshaw v Briginshaw (1938) 60 CLR 336

Crime and Corruption Commission v Chief Superintendent Horton APM & Anor [2021] QCAT 437

Deputy Commissioner Stewart v Dark [2012] QCA 228

Gunter v Assistant Commissioner Wilkins [2021] QCA 274

Heuston v Horton [2024] QCAT 432

House v R (1936) 55 CLR 499

Jadwan Pty Ltd v Rae & Partners (a firm) [2020] FCAFC 62

MAM Mortgages Ltd v Cameron Brothers [2002] QCA 330

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Robinson Helicopter Company Inc v McDermott [2016] HCA 22

Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375

Willmott v Carless [2024] QCA 115

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Mr Grant of counsel instructed by the Queensland Police Service Legal unit

Second Respondent

Ms Price of the Crime and Corruption Commission

REASONS FOR DECISION

Introduction

  1. [1]
    In January 2021 the applicant was given a Disciplinary Proceeding Notice (‘Notice’) relating to “unauthorised access to information stored on Service databases”.[1] The database referred to is the Queensland Police Service (‘QPS’) computer system, QPRIME. It is contended that the applicant’s access was unrelated to his official police duties. The Notice states that the conduct, if substantiated, would provide grounds for disciplinary action pursuant to s 7.4 of the Police Service Administration Act 1990 (Qld) (‘the PSA Act’).
  2. [2]
    The Notice alleged in Matter 1 that the applicant’s conduct was improper in that the applicant’s access was:
  • Without an official purpose related to the performance of your duties; and/or
  • Where there was a conflict of interest between your personal interest and the impartial fulfilment of your official duties and responsibilities.
  1. [3]
    The Notice then goes on to provide particulars of each time there was unauthorised access to QPRIME between 1 September 2019 through to 15 January 2020. In that period there are four separate circumstances prompting the access, a summary of which is as follows.
  2. [4]
    The first circumstance related to using QPRIME to undertake searches (on two occasions) of the rental property the applicant owned on Waterworks Rd Ashgrove, after being notified by a tenant of the property that police had attended the property in relation to a domestic violence matter.
  3. [5]
    The second circumstance related to the applicant using QPRIME to assist a friend, Ms Jones,[2] with updates about her reports to the QPS of her bicycle being stolen in the Brisbane CBD. He accessed QPRIME seven times and conducted searches in relation to this matter.
  4. [6]
    The third circumstance was in relation to the applicant using QPRIME three times to obtain information about himself relating to earlier incidents.
  5. [7]
    The fourth circumstance was again in respect of his reporting the theft of personal property from his rental property at Waterworks Rd Ashgrove. This included a search of a motorcycle that was reported to him as being at the Ashgrove property.
  6. [8]
    In accordance with usual procedures, the applicant was invited to respond to the allegations made in the Notice. On 12 March 2021 the applicant provided a comprehensive response to the Notice in which he admitted the use of the QPRIME system on each occasion as particularised in the Notice,  but contended that the access was within the ambit of the performance of his duties as a police officer and there was no conflict of interest. Therefore, he says he had not engaged in misconduct.[3]
  7. [9]
    Having considered the applicant’s response to the Notice, on 17 June 2021 the Deputy Commissioner found that Matter 1 in the Notice had been substantiated.[4] In the reasons for decision, the Deputy Commissioner indicated he was considering the imposition of a sanction of demotion from Superintendent to Inspector. He invited further submissions from the applicant on the proposed sanction.
  8. [10]
    Those submissions were provided within the required time. They address the applicant’s length of service, good character, and service record of over 40 years, make reference to comparable cases on sanction and are accompanied by independent references.[5]
  9. [11]
    Having considered all of these matters, on 9 August 2021 the Deputy Commissioner imposed the following sanction:[6]
    1. There be an immediate demotion of rank from Superintendent pay point 1 to Inspector pay point 7;
    2. The demotion be suspended after six months and then the applicant be returned to Superintendent pay point 1 and be immediately eligible to progress to pay point 2;
    3. The suspension is conditional upon the applicant not engaging in any further misconduct.
  10. [12]
    The applicant retired from the QPS on 24 September 2022 being the compulsory retirement date.
  11. [13]
    On 2 September 2021 the applicant filed an application to review the Deputy Commissioner’s decision both on substantiation and sanction.
  12. [14]
    In the more recent submissions filed by the applicant, there seems to be a suggestion that this review application is in the nature of a merits review. That is as though it is under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). If that is his contention it is not now the function of this Tribunal to produce the correct and preferable decision. The review is now conducted under s 219Q of the Crime and Corruption Act 2001 (Qld).[7]
  13. [15]
    The review is to be conducted in the nature of an appeal by way of rehearing, like after a trial in a court.[8] An appeal by way of rehearing was considered by the Full Federal Court in Jadwan Pty Ltd v Rae & Partners (a firm)[9] as follows:

In an appeal by way of rehearing, the powers of the Court are exercisable where an appellant demonstrates some legal, factual, or discretionary error… ‘the views and the conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple reargument of the case take place’… what amounts to error will depend upon the issue in contention.

(Citations omitted)

  1. [16]
    Also as Sofronoff P observed in Gunter v Assistant Commissioner Wilkins:[10]

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.

  1. [17]
    The issue in this application is not one which includes a dispute of fact, but rather, whether the actions taken by the applicant in accessing the QPS computer database fell within his official police duties. There is also an issue of whether by taking the actions he did, by conducting checks to determine the welfare of one of his tenants at the rental property, trying to assist Ms Jones whose bike was stolen, and then checking on his report of personal property being stolen from his rental property, amounted to a conflict of interest.

Disciplinary processes in the Queensland Police Service

  1. [18]
    The process of taking disciplinary action against police officers was changed in 2019 by amendments to the PSA Act in an amending act, the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld) (‘the amending act’).
  2. [19]
    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:
  1. (a)
    to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and
  2. (b)
    to ensure appropriate standards of discipline are maintained within the service to—
  1. (i)
    protect the public; and
  2. (ii)
    uphold ethical standards within the service; and
  3. (iii)
    promote and maintain public confidence, and officers’ confidence, in the service.
  1. [20]
    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).
  2. [21]
    Section 7.4 sets out the grounds for disciplinary action against a subject officer. Relevantly, for this review application they include if the officer:
  1. (a)
    Committed misconduct; or
  2. (b)
    …
  3. (c)
    Performed the subject officer’s duties carelessly incompetently or inefficiently; or
  4. (d)
    …
  5. (e)
    Contravened, without reasonable excuse –
  1. (i)
    A provision of this Act or the Police Powers and Responsibilities Act 2000; or
  2. (ii)
    A code of conduct that applies to the subject officer; or
  3. (iii)
    A direction given to the subject officer by the commissioner under this Act or by a senior officer with authority to give the direction.
  1. [22]
    The effect of these amendments removes the prior distinction between “misconduct” and “breach of discipline”.
  2. [23]
    Misconduct is defined in Schedule 2 of the PSA Act as

misconduct means conduct that—

  1. (a)
    is disgraceful, improper or unbecoming an officer; or
  2. (b)
    shows unfitness to be or continue as an officer; or
  3. (c)
    does not meet the standard of conduct the community reasonably expects of a police officer.
  1. [24]
    It is well known now to all serving police officers that accessing the QPS computer database, commonly referred to as QPRIME, can only be done for official purposes in performing their police duties.
  2. [25]
    This constraint was specifically brought to the attention of officers in a number of emails from the then Commissioners in March 2016, December 2018 and more recently in July 2020.[11] They are in line with s 16 of the QPS Standard of Practice, which states that “this type of activity is viewed by the Service as misconduct and any members who breach the provision of this section will be dealt with accordingly”.[12] The applicant acknowledges his awareness of this in his directed interview.
  3. [26]
    In respect of any disciplinary proceeding against an officer for unauthorised access to QPRIME it is necessary, as was the case here, to identify the purpose of the access to determine if it was for official police purposes. If it is not, the Deputy Commissioner submits, it is improper, and falls within (a) of the definition of misconduct in the PSA Act.
  4. [27]
    However, for it to be improper in the definition, he conduct still must be such that it is conduct on a similar scale as “disgraceful” or “unbecoming an officer”.[13] In Assistant Commissioner Stephen Hollands v Tolsher[14] the Appeal Tribunal gave consideration to what “improper” meant in the context of disciplinary proceedings. The then President, Justice Carmody, said:
  1. [5]
    In Mathieu v Higgins & Anor[15] 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
  2. [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.[16]
  3. [7]
    Thus the issue here may be accurately characterise as whether the conduct is so morally and socially blameworthy” that nothing short of a misconduct finding is called for.[17]
  1. [28]
    The Deputy Commissioner submits that the applicant by his “improper” conduct[18] breached the following:
    1. PSA Act s 7.4(1)(a);
    2. Code of Conduct s 1.5;
    3. Standard of Practice ss 1.1, 1.3, 1.4, 1.6, 2, 4, 10, and 18;
    4. Procedural for Professional Conduct ss 1, 2 and 3.4.[19]
  2. [29]
    Because there is no dispute by the applicant that he accessed QPRIME on the occasions alleged in the particulars, it is necessary to consider each of the particulars to determine if the conduct constitutes “misconduct” within the definition.
  3. [30]
    The Deputy Commissioner’s submission seems to rely not on the fact that the conduct complained of was “disgraceful” or “unbecoming of a police officer” but that it was “improper”.
  4. [31]
    The other consideration is whether the conduct falls within s 7.4(e) of the PSA Act. This would be more in line with the notion of breach of discipline rather than the more serious charge of misconduct.

Particular (i) – Police attending the Ashgrove property.

  1. [32]
    At the time of this incident the applicant was attached to the Security and Counter Terrorism Command. He was not assigned to general police duties and had no official involvement with the domestic violence incident at his rental property, which is not contested. Yet, of his own volition the applicant undertook checks on QPRIME about the incident involving domestic violence. The applicant contends that as a police officer he was obliged to properly inform himself of the incident and ensure the ongoing security of the property for the tenant the subject of the domestic violence.
  2. [33]
    Interestingly, and on point, is the fact that the applicant was informed of the incident when it occurred on 21 August 2019. At that time he was on leave. He did not check QPRIME until his return from leave on 2 September 2019. If the concern for the tenant was genuine as he asserts, it is reasonable to expect that he would not have waited until 2 September 2019 to investigate the matter. That is one of the issues that troubled the Deputy Commissioner.
  3. [34]
    There were other matters that the Deputy Commissioner took into account. During the course of his directed interview the applicant said he wanted to get a proper understanding of the situation from what was reported. He checked the status of the perpetrator of the domestic violence to ascertain he was in custody. Also, he conceded in the interview, his checks were not related to his duties as a police officer. When reviewing all of the material, that appears to be abundantly clear.
  4. [35]
    The Deputy Commissioner had regard to the Commissioner’s directives to all police officers though various communications, including individual emails, about the importance of maintaining confidentiality of information on QPS databases. The expectation of officers is that they will only access the QPRIME database for the purpose of performing their duty. The applicant knew, given his seniority (as the Deputy Commissioner found) that pursuant to s 16 of the QPS Standard of Practice “this type of activity is viewed by the Service as misconduct and any members who breach the provision of this section will be dealt with accordingly”.[20]
  5. [36]
    The applicant contends that the Deputy Commissioner made an error in not accepting his submission that he had a “duty” as a police officer to obtain the full facts concerning the incident at his rental property. His contention of duty, in circumstances where he was not the investigating officer, and was specifically assigned to a discrete Command in the QPS at the time, carries little weight. This issue has been discussed in a number of tribunal decisions. In particular the Deputy Commissioner refers to Acreman v Deputy Commissioner Pointing[21] where it was held that:
  1. [61]
    Mr Acreman’s submission is to the effect that he was obliged by his oath of office to do so. He suggests in effect that if it was not so, even if an officer became aware of serious criminal behaviour in his private life, he could not act upon it.
  2. [62]
    The problem with that proposition is that in the course of their duties, police officers are tasked with particular functions at any given time depending upon the position held. As identified earlier, Mr Acremen was on secondment to the CCC as Inspector Integrity Services at the time of the QPRIME access in question. Even if the information he became aware of in his private capacity was worthy of police investigation, and notwithstanding the common law duties of every constable discussed by the Tribunal, it was not his role at the CCC to investigate it.
  1. [37]
    The Deputy Commissioner also relied on what was said in Assistant Commissioner Brian Wilkins & Anor v Gunter (No 2):[22]
  1. [62]
    Sergeant Gunter’s evidence that he had concerns about the people performing work on his home and that he made the checks for the reasons given in his interview and affidavit does not help him. Sergeant Gunter had at the time of his conduct over sixteen years’ experience as a police officer. Any honest and reasonable mistake that Sergeant Gunter says he had in terms of being entitled to do the searches either because he is always on duty as a police officer or on the basis that the Standard of Practice permits him to do so, does not help him. Nor does Sergeant Gunter’s submission made in the hearing below that, as summarised by the learned Member, Sergeant Gunter said he, as stated, ‘viewed himself as a police officer 24/7’.
  2. [63]
    Neither the provisions of the Police Service Administration Act 1990 (Qld)56 nor the common law concerning the duties of constables confers a power upon police officers to undertake investigation of suspected criminal offences at their own whim without regard to the hierarchy of police service command. Even if Sergeant Gunter’s explanation for his QPRIME inquiries regarding other persons is accepted at face value, such inquiries were not in the performance of his duties as a police officer. He was not allocated such investigations by his superior officers and did not seek the permission of his superior officers to conduct such investigations. Sergeant Gunter’s status as a police officer did not confer upon him an unlimited power to investigate suspected criminal offences as he saw fit. In the absence of authorisation of his investigations by his superiors, the QPRIME inquiries cannot reasonably be regarded as being with an official purpose in the performance of his duties as a police officer. In the circumstances of this matter, it was not reasonably open to the learned Member to find otherwise.
  1. [38]
    The Deputy Commissioner, in further support of substantiating the misconduct, also relied on other parts of the Standard of Practice applicable to serving officers, in particular, requiring all officers to familiarise themselves with the Standard of Practice and Code of Conduct and act in accordance with it.
  2. [39]
    In 2019, the notion of accessing the computer database, QPRIME, without an official purpose was not a novel concept. Also, it was strictly enforced as can be seen by decisions in this tribunal.
  3. [40]
    More importantly, the access related to a third party, even though she was known to the applicant.
  4. [41]
    In respect of Particular 1, the only reasonable conclusion of fact reasonably open to the Deputy Commissioner was to find that the access was unauthorised in the circumstances, and constituted misconduct. No error has been established in respect of this particular.

Particular (ii) – Ms Jones’ stolen bicycle.

  1. [42]
    This relates to the stolen bicycle in the Brisbane CBD belonging to a friend, Ms Jones. There is no doubt that the applicant acted in good faith in trying to assist Ms Jones in its recovery. At this time the applicant still held the position in Counter Terrorism Command. Checks were conducted on QPRIME on two occasions, on 1 November 2019 and 14 November 2019, to ascertain the status of the investigation. It appears that the investigation had stalled or slowed and the applicant sought to get updates.
  2. [43]
    Once again the applicant was not a part of the investigating team and had, under the Standard of Practice, no official purpose in conducting these searches. They were done as a personal favour to Ms Jones. Any argument contended for by the applicant that it was part of his duty as a police officer to intervene is unsupported by the Standard of Practice and Code of Conduct and the cases referred to above.
  3. [44]
    Also, again Ms Jones was a third party whose privacy was comprised by the applicant’s conduct. Although it is reasonable to infer she approved of his inquiring on her behalf, that of itself does not justify the conduct.
  4. [45]
    The Deputy Commissioner relied on the same reasoning which led him to find Particular 1 was substantiated. As I found there was no error of law or fact in that conclusion, there is none here.

Particular (iii)

  1. [46]
    This particular relates to the applicant accessing QPRIME on two occasions, 1 November 2019 and 7 November 2019, to search his own name. The check on 1 November related to the loss of his police ID in 2014 and an assault he was the subject of in 1993. In the assault incident, he looked at the record and photograph of the  assailant, who was arrested. The second search again was of his own name checking on licence details and a previous vehicle he owned.
  2. [47]
    The applicant provided an explanation that a recent police incident reminded him of the events in 1993 and he decided to revisit the record of those events and again look at the photograph of the offender. As for the vehicle searches, these were to check license details for insurance purposes or work forms in relation to his own vehicles. The applicant concedes that although he did not see any harm in conducting these searches of his own records, they were not for an official purpose. Therefore conducting the searches was a technical breach of the Standard of Practice.
  3. [48]
    In my view, conducting a search in relation to oneself takes on a somewhat different character when considering the definition of misconduct. The reason for the search is always relevant but if it does not relate to a third party, and is solely related one’s work history, it is difficult to see how the conduct could be characterised as 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.
  4. [49]
    Similar observations can be made about the vehicle and license searches which only related to himself. The Deputy Commissioner is obviously correct in concluding that the checks were unrelated to the performance of his police duties but rather for personal reasons or possibly curiosity. But that does not mean, ipso facto, that it was misconduct as defined.
  5. [50]
    It would seem to me that for the conduct of accessing QPRIME to amount to misconduct it is necessary to consider it in two parts. Firstly, there needs to be proof of an officer accessing the system and conducting a search on a matter unrelated to the officer’s duties. That aspect of the conduct has been established by the applicant’s own admission. Secondly, it is necessary to then consider the subject matter of the search to determine whether the definition is satisfied. By way of an example, if an officer accesses the system to see if any demerit points have expired on his driver’s licence due to the effluxion of time,[23] it is difficult to see how this conduct could fall within any of the three parts of the definition. In particular, by doing so can it legitimately be said that the conduct does not meet the standard of conduct the community reasonably expects of a police officer?
  6. [51]
    I also have in mind what was said in Schauer v Banham[24] and adopted in Assistant Commissioner Stephen Hollands v Tolsher[25] that:

Reasonable members of the community do not regard police officers as professionally unfit or sub-standard just because they fail to obey every jot and tittle of departmental instructions. Reasonable people may say: “He could have done better there” or: “That was a bit risky” without implying the stigma of “misconduct”, which is a pejorative charge to be used with due discrimination. At a time when people exercising authority in “exposed” positions incur much negative criticism it is neither fair nor in the public interest to wield disciplinary powers in such a way that police officers may reasonably think: “The less I do, the less risk of getting in trouble”.

  1. [52]
    I am therefore not satisfied that, in these circumstances, the conduct amounts to misconduct, but it likely falls within s 7.4(e) of the PSA. Therefore, the Deputy Commissioner was in error in concluding, as a matter of law, that the applicant engaged in misconduct in respect of particular (iii).

Particular (iv)

  1. [53]
    This particular relates to the issue of stolen property from the applicant’s rental property at Ashgrove, which included a ladder and a mower, on 16 December 2019. The theft was reported in the Policelink system.
  2. [54]
    Between 16 December 2019 and 14 January 2020 the applicant accessed QPRIME on fourteen (14) occasions, each of which did not relate to the applicant’s official police duties, but mostly were in relation to the theft of his property.
  3. [55]
    These checks, on the day of the report of the stolen property, included a fast find search on a Mr Black[26] which related to domestic violence. Another search also related to a victim associated with Mr Black.[27]
  4. [56]
    There was a third party motor vehicle search. Also there was a search in relation to another third party’s ‘person’ tab which related to a drug occurrence.[28]
  5. [57]
    There were a number of searches checking on the investigation of his stolen property. These searches would likely fall within the category of searches I have referred to in relation to particular (iii) but this does not matter here. That is because the third party searches or checks in relation to Mr Black and others clearly fall outside that category.
  6. [58]
    Finally there were three (3) searches on 27 December 2020 and 31 December 2020 which the Deputy Commissioner was satisfied related to official police duties because they arose out of an incident at the Chinese Embassy.
  7. [59]
    However, the findings of fact in relation to the substantiation of the searches/checks involving third parties were clearly unrelated to his official police duties and therefore the Deputy Commissioner’s finding of misconduct was open and there is no basis to disturb that finding in relation to particular (iii).

Conflict of interest.

  1. [60]
    The applicant contends that his conduct in undertaking the searches did not amount to a conflict of interest. That is because he did so in his role as a police officer and had no personal interest in the outcome. He gained nothing by the searches.
  2. [61]
    The Deputy Commissioner relies on the Standard of Practice where both types of conflict are explained or defined.
    1. an apparent conflict of interest exists when it appears that a member’s private interests could interfere with the proper performance of their official duties; and
    2. an actual conflict of interest exists when a reasonable person, in possession of the relevant facts, would conclude that the member’s private interests are interfering with the proper performance of their official duties.[29]
  3. [62]
    It is apparent from the wording of the definition that the determination of whether there is a conflict of interest is objective by reference to the “reasonable person”. It is not for the police officer to decide whether there is a conflict of interest, but it is a consideration of the circumstances, objectively, which determine whether a conflict arises, particularly an apparent conflict of interest.
  4. [63]
    That is what occurred here when the Deputy Commissioner considered the circumstances in relation to each particular. When looking at the circumstances of each of the particulars, save for searches in relation to his own personal matters e.g. particular (iii), the applicant clearly had, at the very least, an apparent interest in the outcome of the investigations.
  5. [64]
    In respect of the domestic violence incident relating to a tenant in his rental property, particular (i), he had an interest not only in her well-being but also the stability of the tenancy, the apparent financial benefit flowing from that and the security of the property.
  6. [65]
    The Deputy Commissioner found that even if the applicant was the investigating officer, he would be required to inform his supervisor of the relationship which, no doubt, would disqualify him from being involved in the investigation. No error is demonstrated here.
  7. [66]
    As for Ms Jones’s bicycle, she was a close friend. The same logic applies, that it would be improper for the applicant to be the investigating officer without disclosing the relationship. Undertaking the follow up checks to see how the investigation was going for his friend put the applicant in a position of conflict. No error is demonstrated here.
  8. [67]
    As for particular (iv) in relation to his personal property the Deputy Commissioner found, objectively, a conflict for the same reasons articulated above. The applicant knew he could obtain updates of the investigation simply by picking up the telephone and talking to the appropriate officer within the QPS, which I might say, would not be as easy for a member of the public. He undertook the checks for his own personal benefit when an investigation was on foot and therefore there was a blurring of his official duties with his personal interests.
  9. [68]
    There is no basis to disturb the Deputy Commissioner’s findings in relation to this conflict of interest.

Who made the decision?

  1. [69]
    The applicant contends that the real decision maker was the officer assigned to investigate the applicant’s conduct and make recommendations. The fact is that all of the material was prepared and put to the Deputy Commissioner to review and make a decision about. It is not unusual that the investigation work is delegated to another officer for final recommendations to be made to the decision maker.
  2. [70]
    I also note that the applicant must be aware of the process, because his service record shows that in January 2020 he was promoted to ESC, which I understand is the Ethical Standards Command.
  3. [71]
    The decision under review both in terms of substantiation and sanction have been signed off by the Deputy Commissioner and that satisfies me that the correct process has been followed. This ground of review fails.

Conclusion on Substantiation

  1. [72]
    This review application is not a rehearing of the disciplinary proceeding before the Deputy Commissioner. The onus is on the applicant to demonstrate some error of fact or law which would warrant an interference with the Deputy Commissioner’s decision on substantiation. The Deputy Commissioner took into account the standard of proof required to be applied having regard to the seriousness of the charges against the applicant.[30]
  2. [73]
    Except for Matter 1 particular (iii) the applicant has not demonstrated any error in the Deputy Commissioner’s decision that the applicant engaged in misconduct in accessing QPRIME for matters unrelated to the performance of official police duties. Therefore Matter 1 remains substantiated.

Sanction

  1. [74]
    On 9 August 2021, the Deputy Commissioner imposed the following sanction:

I order that you be demoted from Superintendent pay point 1 to Inspector pay point 7. Further, that 6 months from the date of this sanction your demotion is suspended until 24 September 2022 on condition that you do not commit any misconduct. Once your demotion is suspended you will return to Superintendent ay point 1. In recognition of the time already served as a Superintendent, you will be eligible to progress immediately to pay point 2.

  1. [75]
    Because this review is not a merits review the Tribunal cannot substitute its own decision on sanction. Therefore, in respect of the sanction imposed, the applicant must demonstrate that on the findings of the Deputy Commissioner, there was an error in the exercise of discretion resulting in the sanction being manifestly excessive. The exercise of the discretion must be considered in light of the principles in House v R:[31]

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so…

  1. [76]
    Once the Deputy Commissioner found the conduct substantiated, s 7.35(2)(b) of the PSA Act authorised him to impose any of the disciplinary sanctions referred to in s 7.34 of the PSA Act.
  2. [77]
    Under s 7.35(3) the Deputy Commissioner is to have regard to:
    1. Any considerations provided for in a guideline made under section 7.44;
    2. The subject officer’s disciplinary history and service history;
    3. Any professional development strategies imposed on, or completed by, the subject officer in relation to the ground for disciplinary action.
  3. [78]
    It is evident from the Deputy Commissioner’s reasons that he had regard to the matters prescribed in s 7.35. As part of his consideration he referred to, inter alia,
    1. The applicant’s rank of Superintendent, being a commissioned officer, with 40 years of service;
    2. The leadership responsibilities that came with this rank and years of service;
    3. The example to be set by an officer with the applicant’s experience;
    4. His knowledge of the importance of information privacy and security;
    5. His otherwise good service record;
    6. His completion of relevant training modules;
    7. The financial impact on the applicant.
  4. [79]
    Relevantly the Deputy Commissioner turned his mind to the purpose of sanction and said:

The sanction I impose against you is intended to demonstrate disapproval against conduct of this type and maintain confidence in the ability of the Service to fulfill all its statutory duties. I am mindful of the comments in Police Service Board v Morris (1985) 156 CLR 397 at 412, namely:

The sanction must therefore reflect the public disapproval of the conduct subject of the current determination and act as a deterrent to both yourself and other police officers who may aver to similar conduct…

  1. [80]
    The applicant contends that the Deputy Commissioner failed to have regard to comparative cases decided by this Tribunal for similar misconduct. He refers to Acreman v Pointing (‘Acreman’) and I am assuming the reference is to the first review decision at [2018] QCAT 321 and not the subsequent review decision on sanction in 2019. In the first decision, the charge related to accessing QPRIME to ascertain the identity of an individual with whom Mr Acreman had a physical altercation. His argument, in summary, was that he considered he had a duty as a police officer to investigate the individual and wanted to ensure the person’s partner was not the subject of domestic violence. All of these matters were considered by the Tribunal, the misconduct was substantiated and the Deputy Commissioner’s sanction for this Matter 2 was a reprimand. It is important to note that Mr Acreman’s rank was that of Inspector. Also the access to QPRIME was only on two occasions on consecutive days.
  2. [81]
    The distinction here is that the applicant accessed QPRIME on multiple occasions in relation for three distinct and separate matters. The multiple accesses also occurred over an extended period. The Acreman case is not comparative in the conduct of the officers.
  3. [82]
    In another case, Spencer v Assistant Commissioner McCarthy & Anor,[32] the applicant, with the rank of sergeant, accessed QPRIME on multiple occasions for unrelated police purposes. The sanction imposed was demotion in rank from sergeant pay point 3.6 to sergeant pay point 3.1 for two years. The point here is that demotion with a reduction of pay point is not unprecedented.
  4. [83]
    In the circumstances described by the Deputy Commissioner upon which he based his decision, and even having regard to the above comparative cases, it cannot be established that the sanction imposed was manifestly excessive, even not taking into account the circumstances in particular (iii).
  5. [84]
    There has been no error in the exercise of the discretion and therefore there is no basis to interfere with the sanction imposed. It is confirmed.
  6. [85]
    The orders of the Tribunal are:
    1. Particular (iii) relied on in Matter 1, although substantiated, did not constitute official misconduct and the first respondent’s decision that it constituted official misconduct is set aside.
    2. The decision of the first respondent that Matter 1 is substantiated and constituted official misconduct is confirmed.
    3. The sanction imposed by the first respondent in respect of Matter 1 is confirmed.

Footnotes

[1] Exhibit 1 (Application for Review) attachment 3.

[2] A pseudonym.

[3] Exhibit 1 (Application for Review) attachment 4.

[4] Ibid attachment 5.

[5] Ibid attachment 6.

[6] Ibid attachment 7.

[7] Wilmott v Carless [2024] QCA 115.

[8] Heuston v Horton [2024] QCAT 432 at [3].

[9] [2020] FCAFC 62 [402]-[415].

[10] [2021] QCA 274 at [2].

[11] Attachment 1 to the Review Application page 23.

[12] Deputy Commissioner’s reasons [11].

[13] Applying the ejusdem generis principle in statutory construction.

[14] [2016] QCATA 123.

[15] [2008] QSC 209.

[16] See, for example Pillai v Messiter (No 2) (1989) 16 NSWLR 197.

[17] Deputy Commissioner Stewart v Dark [2012] QCA 228 [42]-[43].

[18] Deputy Commissioner’s submissions filed 21 February 2023 paragraph 27.

[19] Ibid paragraph 20.

 

[20] Deputy Commissioner’s reasons [11].

[21] 2021 QCATA 133 at [61]-[62].

[22] [2021] QCATA 42.

[23] I am aware that this can be done through the Queensland Department of Transport website, and I assume it can also be done on QPRIME.

[24] Misconduct Tribunal Appeal No 11 of 1996.

[25] [2016] QCATA 123.

[26] A pseudonym.

[27] Particular (iv) a, b, and c.

[28] Particular (iv) m and n.

[29] Standard of Practice ss 18.1 and 18.2 and Procedural Guidelines for Professional Conduct ss 1.1 and 1.2.

[30] Briginshaw v Briginshaw (1938) 60 CLR 336.

[31] (1936) 55 CLR 499.

[32] [2019] QCAT 375.

Close

Editorial Notes

  • Published Case Name:

    Vercoe v Deputy Commissioner Taylor & Anor

  • Shortened Case Name:

    Vercoe v Deputy Commissioner Taylor

  • MNC:

    [2025] QCAT 58

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    04 Feb 2025

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
Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 321
1 citation
Jump To
Cite 1 - [2018] QCAT 321
Acreman v Deputy Commissioner Pointing [2021] QCATA 133
1 citation
Jump To
Cite 1 - [2021] QCATA 133
Assistant Commissioner Brian JA Wilkins v Gunter (No. 2) [2021] QCATA 42
2 citations
Jump To
Cite 1 - [2021] QCATA 42
Cite 2 - [2021] QCATA 42
Assistant Commissioner Hollands v Tolsher [2016] QCATA 123
3 citations
Jump To
Cite 1 - [2016] QCATA 123
Cite 2 - [2016] QCATA 123
Cite 3 - [2016] QCATA 123
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Crime and Corruption Commission v Chief Superintendent Horton APM [2021] QCAT 437
1 citation
Jump To
Cite 1 - [2021] QCAT 437
Deputy Commissioner Stewart v Dark [2012] QCA 228
2 citations
Jump To
Cite 1 - [2012] QCA 228
Cite 2 - [2012] QCA 228
Gunter v Assistant Commissioner Wilkins [2021] QCA 274
2 citations
Jump To
Cite 1 - [2021] QCA 274
Cite 2 - [2021] QCA 274
Heuston v Horton [2024] QCAT 432
2 citations
Jump To
Cite 1 - [2024] QCAT 432
Cite 2 - [2024] QCAT 432
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
MAM Mortgages Ltd (in liq) v Cameron Bros [2002] QCA 330
1 citation
Jump To
Cite 1 - [2002] QCA 330
Mathieu v Higgins [2008] QSC 209
1 citation
Jump To
Cite 1 - [2008] QSC 209
Pillai v Messiter (No.2) (1989) 16 NSW LR 197
2 citations
Jump To
Cite 1 - (1989) 16 NSW LR 197
Cite 2 - (1989) 16 NSW LR 197
Police Service Board v Morris & Martin (1985) 156 CLR 397
1 citation
Jump To
Cite 1 - (1985) 156 CLR 397
Robinson Helicopter Company Incorporated v McDermott & Ors [2016] HCA 22
1 citation
Jump To
Cite 1 - [2016] HCA 22
Spencer v Assistant Commissioner McCarthy [2019] QCAT 375
2 citations
Jump To
Cite 1 - [2019] QCAT 375
Cite 2 - [2019] QCAT 375
Willmott v Carless [2024] QCA 115
2 citations
Jump To
Cite 1 - [2024] QCA 115
Cite 2 - [2024] QCA 115

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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