Crime and Misconduct Commission v Bioletti

[1] The applicant Crime and Misconduct Commission applies, pursuant to rule 667 and/or r 668 of the Uniform Civil Procedure Rules 1999 (Qld) for an order that the order of a Judge of this Court made on 30 January 2005 ("the order") be varied. That order set aside a decision of the Misconduct Tribunal, as constituted under the Misconduct Tribunals Act 1997 (Qld), made on 1 July 2005. The order remitted the matter to the Tribunal to be heard by a different member.

[2] There were two complaints before the Tribunal. In both, the respondent police officer was alleged to have requested a sexual favour of the female complainant in consideration of an implicit offer to afford her favourable treatment. The Tribunal substantially accepted the evidence of one of the complainants, complainant A, but was not satisfied to the requisite standard of proof as to the truth of allegations made by the other complainant, complainant B.

[3] In the course of the hearing, the barrister constituting the Tribunal intimated that the matters had not been properly brought before him and that, in consequence, the Tribunal lacked jurisdiction. Nevertheless, the parties urged him to make the findings he would have made, had he found that the requisite jurisdiction existed. The Tribunal acted on the request and made the findings referred to earlier. The applicant appealed against the determinations, seeking orders that:

• the Tribunal's orders be set aside;

• the respondent be found guilty of official misconduct in respect of complainant A; and

• that he be dismissed from the Queensland Police Service forthwith.

No order was sought in respect of complainant B other than that the Tribunal's order (including as to costs) be set aside and that the respondent pay the applicant's costs of the appeal.

[4] The learned judge concluded that the Tribunal member erred in finding that he lacked jurisdiction but declined to make the orders sought by the applicant, preferring instead to remit the matter for rehearing by another Tribunal member. In relation to the submission that he adopt the Tribunal's findings of fact and impose a penalty his Honour observed:

"...the question of what would be the proper course is one which ought to be decided in the Tribunal".

[5] In his reasons, his Honour expressed some "sympathy for the view that the findings of the Tribunal adverse to the respondent should stand". His reason for this was that if they did not, complainant A would be required to give evidence again. His Honour concluded, however, that adopting the Tribunal's findings was not the appropriate course to follow and that both complaints should be reheard. One consideration which influenced him was the applicant's stated intention of arguing on any rehearing that evidence of each complainant as to the circumstances of the respondent's alleged misconduct was similar fact evidence admissible against the respondent in the other matter. On the hearing of the appeal, counsel for the applicant had argued that the Tribunal had applied the wrong test for the admissibility of similar fact evidence and urged that if the matter of complaint A were to be remitted to the Tribunal there should be a direction as to the "proper application of the similar fact rule". His Honour did not accept the submissions.

[6] It was argued on behalf of the applicant that r 668 of the Uniform Civil Procedure Rules applied as facts had been discovered after the order which, "if discovered in time, would have entitled the person against whom the order is made to ... a different order". The freshly discovered facts were said to be "the facts relating to the devastating psychiatric impact on [complainant A] should she be required to give evidence". Rankin v Agen Biomedical Ltd[1] was referred to as authority for the proposition that r 668 was applicable to circumstances in which an applicant was seeking to substitute one discretionary order for another.

[7] Counsel for the respondent did not contend that r 668 was incapable of application to orders dependent on the exercise of discretion such as those under consideration. His arguments may be summarised as follows:

(a) The application of r 668(b) is triggered by the discovery of "facts". Here, the applicant relies on opinions rather than facts, the opinions being those of a psychiatrist and a "counsellor", both of whom had prepared reports which were received in evidence.

(b) Principles relating to the reception of fresh evidence on appeals apply to applications pursuant to r 668.[2] The "new material" could have been produced earlier with reasonable diligence and there is nothing to indicate that had such material been placed before the judge the orders would have been different.

(c) The opinion of the psychiatrist, Dr Petroff, does not "indicate that [complainant A] could not attend a Tribunal hearing. At the highest, his opinion is that "the charged atmosphere of cross-examination" could aggravate her condition. If complainant A is regarded as a vulnerable witness, her difficulties can be accommodated by the Tribunal. Matters such as these are routinely dealt with by courts and tribunals.

The evidence as to complainant A's psychiatric condition

[8] In his report dated 17 March 2006, Dr Petroff, Consultant Psychiatrist, observed of complainant A:

"She is in receipt of disability support pension for anxiety and depression ...

[Complainant A] told me that she was at her worst immediately after the incident [the alleged misconduct of the respondent in April 2001]. She claims that she went 'totally crazy'. ...

She was in and out of Caboolture Hospital constantly seeking assessment and kept re-presenting herself even though she was repeatedly discharged. She felt that she was 'going crazy' and losing control of her faculties. ...

Her psychiatrist in Maryborough did put her on Zoloft which [her] mother was taking, however, she did not persist with the treatment as she was too chaotic to do so. ...

The patient claims that since coming to Lismore and getting some counselling she is moving to put everything into the background. ...

[Complainant A] has had a stormy background. .. Childhood was unsettled with her father being in the army and being moved around. While she was good at primary school she performed poorly at high school and left home at the age of 14 only to fall pregnant at the age of 16. She claims to have been sexually and physically abused from the time that she was in high school and described herself as always being out-spoken and failing to keep her 'mouth shut'. She has tried heroin, amphetamines, ecstasy as well as marijuana but somehow avoided getting Hepatitis B or Hepatitis C. ...

She was emotionally distressed and tearful when speaking of traumatic incidents. ...

It is clear that she continues to be embarrassed by her chaotic behaviour which was out of her control and led to her marginalisation from her family and community.

...[she] is suffering from Adjustment Disorder with Anxious and Depressed Mood.

As regard to the level of severity, in the acute phase the Adjustment Disorder was of maximum severity. More recently it is of moderate severity and will not diminish until the threat of appearing in further court cases disappears. ...

That will only lessen after she no longer has to appear in court and the issue with Mr Bioletti is finalized. With passage of time she will continue to improve. ...

Her history over the last few years clearly indicates a worsening of symptoms where she almost appears to be psychotic when exposed to court cases or having to relive her past experiences. ...

The emotionally charged atmosphere of cross examination will dramatically worsen their [persons with symptoms such as complainant A] condition. This woman is severely damaged, is particularly vulnerable and is at a much greater risk of aggravation of her condition should she have to appear in court again..."

[9] Ms Jenny Gibbons has 10 years experience as a counsellor "working with women who are victims of abuse". She has a degree in social science but is not a psychologist. She states that in speaking to complainant A in late February she noticed "severe decline in her mental and emotional wellbeing". She said she had "little doubt that if [the complainant] were required to give evidence again in court she would have serious mental break-down".

[10] Relevant to the exercise of discretion, by analogy with the principles governing the admission of fresh evidence on appeal, is whether the evidence of complainant A's mental condition could have been obtained with reasonable diligence for use on the appeal.[3] Also relevant is whether there is a high degree of probability that there would have been a different decision had such evidence been used,[4] or whether it is reasonably clear that the use of such evidence would have produced an opposite result.[5] But the discretion conferred by r 668 cannot be exercised on the basis that such considerations are part of the rule and necessary prerequisites for the favourable exercise of discretion.

[11] The applicant's contention in this regard is that, because it was not in the contemplation of either party to the appeal prior to the hearing of the appeal that an order would be made remitting complaint A to the Tribunal for a rehearing, the applicant could not have reasonably anticipated that evidence of complainant A's mental condition would be required. I doubt that an order remitting complainant A was an outcome which the applicant could not reasonably have anticipated. But even accepting the applicant's contention in this regard the applicant was alerted to the possibility of such an order in the course of the hearing and complainant A's psychiatric condition then became relevant. The judge in fact took into consideration the possibility of detriment to complainant A as his reasons disclose.

[12] It is reasonable to infer that the applicant was aware, through dealing with complainant A in the hearing before the Tribunal as well as in other proceedings, of the general state of her mental and psychological condition.

[13] In his reasons, the Tribunal member observed of complainant A that she:

"is a person with significant issues in her life and that those issues have from time to time caused her to seek admission to mental health units. Further it is clear that about midnight on the 9th April 2001 she was in a state where she had difficulty giving a coherent account of herself and she may have been affected by liquor or alcohol or a combination of the two. Additionally at about 2 pm on the 10th April 2001 she participated in a discussion with Constable O'Neil which indicates that she was having some difficulties and that her behaviour in conversation was unusual, to say the least of it."

[14] It is thus difficult to view the facts upon which the applicant relies as facts discovered after the order was made. Nor is it reasonably clear that the presentation of those facts on appeal would have produced an opposite result.

[15] The judge took into account the undesirability of complainant A's being required to give evidence again. If Dr Petroff's report had been placed before the judge he would have seen the emphasis placed by the doctor on "the emotionally charged atmosphere of cross examination". But as the judge would have been aware from his own experience and knowledge, much can be done to assist and protect vulnerable witnesses required to undergo cross-examination.

[16] Another difficulty with the applicant's case is that, if the facts relied on are able to be properly characterised as facts discovered after the order was made and as being facts which "would have entitled [the applicant] to ... a different order", those facts bear upon the assessment of the credibility of complainant A's evidence. The applicant's proposal would permit the fresh evidence to be used against, but not by, the respondent.

[17] I was initially attracted to the view that the respondent, having requested that the Tribunal make findings of fact, should be bound by the facts found. That view gains superficial support from the fact that on the hearing of the appeal it was not submitted that the factual findings were unsustainable. The respondent, however, could not appeal against findings of fact and there was no reason why he would wish to appeal against the Tribunal's order. This was a point made by his counsel on the hearing of the appeal and who, on that hearing, did nothing to indicate acceptance of the findings. At the conclusion of the applicant's counsel's address on the appeal, counsel of the respondent was entitled to have concluded that the only course of action realistically in contemplation, if the applicant succeeded on the jurisdictional point, was that both complaints be remitted to the Tribunal with or without some direction about similar fact evidence. Accordingly, it is hardly surprising that the respondent's counsel refrained from addressing on the merits of the Tribunal's factual findings, other than in a cursory way.

[18] For the above reasons, I decline to make the orders sought by the applicant. The application will be dismissed and the applicant will be ordered to pay the respondent's costs of the application to be assessed on the standard basis.

[1] [1998] QCA 282; [1999] 2 Qd R 435.

[2] IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330.

[3] See eg. Breen v Lambert [1991] QSC 232 and IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330.

[4] Akins v National Australia Bank (1994) 34 NSWLR 155 at 160.

[5] Greater Wollongong City Council v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444.