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Queensland Judgments

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Authorised Reports & Unreported Judgments
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Flori v Winter & Ors  
Unreported Citation: [2019] QSC 106
EDITOR'S NOTE

In this decision, Bowskill J considered whether a letter sent by a former police officer to the Crime and Misconduct Commission describing conduct of two other police officers was a “public interest disclosure” under the now?repealed Whistleblowers Protection Act 1994, and therefore under the Public Interest Disclosure Act 2010. Her Honour held that the conduct described in the letter did not fall within the relevant definition of “conduct” and therefore could not be “official misconduct”, which was required for the letter to be a public interest disclosure.

Bowskill J

3 May 2019

Introduction

The plaintiff, a former police officer, brought proceedings against three other police officers and the State of Queensland, claiming damages for the statutory tort of reprisal under s 42 of the Public Interest Disclosure Act 2010 (“the PIDA”). [1]. The alleged reprisal was said to relate to a letter that the plaintiff sent to the Crime and Misconduct Commission in 2010 concerning two other police officers, A and B. [1], [17]. The letter alleged (i) that A and B engaged in a sexual act in a police car, and (ii) that A and B met up to have coffee, while A was on duty, at a location outside A’s district. [17], [21]. A separate question was stated which asked whether, as the plaintiff alleged, the letter was a “public interest disclosure” under s 15 of the now repealed Whistleblowers Protection Act 1994 (“the WPA”) and therefore under the PIDA. [2]. It was common ground that if the letter was not a public interest disclosure under the WPA, the plaintiff’s proceeding would fail. [2].

Schedule 6 to the WPA defined “public interest disclosure” to mean, relevantly, “a disclosure of information specified in sections 15 to 20 of the Act made to an appropriate entity”. [7]. Section 15 relevantly provided that a “public officer”, which included a police officer, “may make a public interest disclosure about someone else’s conduct if ... (a) the officer has information about the conduct; and ... (b) the conduct is official misconduct”. [10]. For the purposes of s 15, “official misconduct” had the same meaning as in the Crime and Misconduct Act 2001 (“the CMA”). [12]. Within that Act, s 14(b) relevantly defined “conduct” as follows:

“[C]onduct means ... for a person who holds or held an appointment – conduct, or a conspiracy or attempt to engage in conduct, of or by the person that is or involves –

(i)the performance of the person’s functions or the exercise of the person’s powers, as the holder of the appointment, in a way that is not honest or is not impartial; or

(ii)a breach of the trust placed in the person as the holder of the appointment; or

(iii)a misuse of information or material acquired in or in connection with the performance of the person’s functions as the holder of the appointment, whether the misuse is for the person’s benefit or the benefit of someone else.” [13].

Section 15 of the CMA relevantly defined “official misconduct” as follows:

“Official misconduct is conduct [within the meaning of s 14] that could, if proved, be –

(a)a criminal offence; or

(b)a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or was the holder of an appointment.” [13].

The issue for Bowskill J was whether the conduct disclosed in the letter amounted to “official misconduct” as defined. [20]. That raised two sub?issues: (i) whether the conduct disclosed in the letter was “conduct” as defined; and (ii) whether the conduct “could, if proved”, be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person’s services. [20].

Conduct

The plaintiff submitted that A and B’s conduct was conduct that involved a breach of the trust placed in them as police officers, within the meaning of s 14(b)(ii) of the CMA. [24]. Bowskill J held that for conduct to constitute “a breach of the trust placed in the person as [a police officer]”, there must be some relationship between the conduct, and the performance of the functions or exercise of the powers conferred on the police officer. [31]. No such connection existed in the present case. [35]–[36].

The plaintiff submitted that A and B’s conduct was conduct that involved a misuse of information or material – the police car – acquired in or in connection with the performance of their functions as police officers, within the meaning of s 14(b)(iii) of the CMA. [38]. Bowskill J held that, assuming that a police car was used, a car does not fall within the meaning of “information or material”, and the police car was not “acquired” in or in connection with the police officer’s functions. [41]–[42].

Accordingly, the conduct described in the letter could not be “conduct” within the meaning of s 14 of the CMA, and therefore could not be “official misconduct” within the meaning of s 15. [45]. Accordingly, the letter could not be a public interest disclosure. Nonetheless, her Honour proceeded to determine the second sub?issue. [46].

Whether conduct could, if proved, be a criminal offence or a disciplinary breach

Bowskill J first considered s 15(a) – whether the conduct described in the letter could, if proved, be a criminal offence. Her Honour approached s 15(a) on the basis that “could” means that a jury properly instructed could reasonably conclude that the offence had been committed, reflecting the test where a no case submission is made in a criminal proceeding. [48]–[49]. Her Honour concluded that the conduct described in the letter could, if proved, be an offence under s 227 of the Criminal Code (doing an indecent act in a place to which the public are permitted to have access). [50]–[59]. Her Honour further concluded that the conduct described in the letter could not, if proved, be an offence under s 408A of the Code (unlawful use of a motor vehicle) or s 135 of the Transport Operations (Road Use Management) Act 1995 (driving or otherwise using a vehicle on a road without the owner’s consent). [60]–[67].

Her Honour then considered s 15(b) – whether the conduct described in the letter could, if proved, be a disciplinary breach providing reasonable grounds for terminating the person’s services. Her Honour concluded that it could not. [68]–[89].

M J Hafeez-Baig