POLICE - INTERNAL ADMINISTRATION - DISCPLINE AND DISMISSAL FOR MISCONDUCT - QUEENSLAND - where review proceeding - whether disciplinary charge substantiated

Crime and Corruption Act 2001 (Qld), s 219H

Police Service Administration Act 1990 (Qld),

s 1.4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21

Aldrich v Ross [2009] QCA 302; [2010] 2 Qd R 235

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384

Crime and Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409

DA v Deputy Commissioner Stewart [2011] QCATA 359

Francis v Crime and Corruption Commission & Anor [2015] QCA 218

Murray v Deputy Commissioner Stewart [2011] QCAT 583

Mr M Black of legal counsel instructed by Gilshenan and Luton Legal Practice

Mr S McLeod of legal counsel instructed by the Queensland Police Service Legal Unit

[1] On 8 December 2014, in the early hours of the morning, David King, acting sergeant on duty, responded to a call to assist two police officers with an arrest in suburban Townsville.

[2] Soon after Mr King's arrival at the scene, constables Harley Polman and Richard Chew also responded to the call to assist as the second back up crew.

[3] The police officers who required assistance were constables Andrew Dunkley and Shane Warren. They had searched and questioned a man who had been seen seated inside a vehicle with a flat tray (the utility). There was a tool box bolted to the utility's flat tray.

[4] During the search, the man handed some cash (the sum of $905) to Mr Warren who counted the money. Mr Warren handed the cash to Mr Dunkley who placed it on the flat tray up against the tool box.

[5] Shortly after Mr King and the second back up crew arrived, the man was arrested and put inside a police van. Mr Dunkley and Mr Warren transported the arrested man to the local hospital and then the police watchhouse.

[6] At the watchhouse, the arrested man asked the assistant watchhouse officer if the police officers had grabbed his money. The police officers could not find the money. An investigation followed. The Queensland Police Service (the QPS) interviewed the police officers and viewed video footage captured by a body camera worn by Mr Dunkley at the scene.

[7] The QPS presented Mr King with a disciplinary hearing notice of misconduct. It was alleged in Matter One that Mr King dishonestly took possession of $905. Deputy Commissioner Peter Martin found Matter One to be substantiated. On 12 October 2016, Mr King was dismissed from the QPS.

[8] Mr King denies the allegation. Mr King wants to review the respondent's decision in relation to the finding of misconduct and the sanction if Matter One is found to be substantiated by the Tribunal on review. Mr King contends that the respondent has failed to discharge the onus of proving the allegation and the evidence gives rise to an alternative, plausible (and innocent) explanation for the missing money.[1]

[9] The respondent says there is clear evidence to form the view that Mr King in fact took the money. The respondent says the charge is substantiated on the evidence and the review application should be dismissed.[2]

[10] The Tribunal on review must hear and decide the review as a 'fresh hearing' on the merits to arrive at the correct and preferable decision.[3] The review proceeds before the Tribunal as a 'rehearing' on the evidence that was before the respondent decision-maker.[4] The Tribunal must also be satisfied and find accordingly that the conduct complained of is police misconduct.[5] 'Misconduct' as defined is conduct that if proven is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.[6]

[11] It is settled law that the Tribunal on review brings the public perspective to bear and the Tribunal is bound to make its own decision on the evidence before it.[7]

[12] In Aldrich v Ross[8] the Honourable Thomas JA observed that the former misconduct tribunal (in determining an appeal against a finding of police misconduct) is required to make its own decision on the available evidence.[9] Thomas JA said that the primary purpose of misconduct and discipline proceedings is the protection of the public, the maintenance of public confidence in the service and the maintenance of integrity in the performance of police duties.[10] Thomas J also said that if the tribunal has the same view of the facts and inferences as the original tribunal (the decision-maker) considerable respect should be given to the views of the original tribunal as to the appropriate disciplinary sanction, but the 'ultimate determination must be that of the misconduct tribunal'.[11]

[13] The approach taken in Aldrich v Ross in relation to imposing a sanction was observed by QCAT as being 'of assistance'.[12] This Tribunal has also observed that the provisions of s 20 of the QCAT Act, 'only serve to fortify the interpretation of the nature, function and powers of the reviewing tribunal as expressed in [Aldrich v Ross]'.[13]

[14] In determining whether or not Matter One is substantiated, the required standard to which the Tribunal must be satisfied is on the balance of probabilities.[14] Justice Dixon (as he then was) stated the approach to be adopted in Briginshaw v Briginshaw:[15]

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[16]

[15] The Tribunal in applying the Briginshaw civil standard of proof must be reasonably satisfied as to the truth of the fact alleged taking into consideration the seriousness of the allegation, the inherent likelihood of a particular occurrence and the 'gravity of the consequences' which flow from the finding. In Crime and Misconduct Commission v Assistant Commissioner J P Swindells & Ors,[17] Applegarth J said:

It is unnecessary to conclude whether the evidence was capable of satisfying the criminal standard of proof. The issue is whether it was open to the tribunal on the probative evidence to not be satisfied of the particular alleged, applying the civil standard of proof.[18]

[16] In an earlier decision of this Tribunal, it was determined that the respondent decision-maker bears the onus of proof in a police disciplinary proceeding before QCAT.[19]

[17] In this case, The Tribunal is required to draw inferences from the material that was before the respondent decision-maker (the s 21 material[20]). As observed by the Tribunal in Crime & Misconduct Commission v Chapman[21] there are no witnesses seen or heard in this review proceeding and the Tribunal is referred to the material before the original decision-maker that has been assembled by an investigator from the QPS with the power to require members of the police service to answer questions.[22]

[18] The s 21 material contains transcripts of interview from police officers including Mr King, Mr Dunkley, Mr Warren, Mr Polman and Mr Chew. As evident from those transcripts, the police officers were directed to truthfully, completely and promptly answer all questions.[23] A failure to comply with a lawful direction provides grounds for disciplinary action.[24] The s 21 material also contains, amongst other things, the video footage from Mr Dunkley's body camera.

[19] It is non-contentious that the allegation, if found to be proven, has serious consequences for Mr King because the respondent decision-maker imposed a sanction of dismissal. The Tribunal must exercise care in the findings it makes and the inferences drawn from the s 21 material in circumstances where the evidence is untested and there are serious consequences that may flow from a substantive finding of misconduct.

[20] The allegation required to be proven is as follows:

That on 8 December 2014 at Townsville your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you:

1. dishonestly took possession of $905, the property of [the arrested man[25]].

[Section 1.4 of the Police Service Administration Act 1990; section 9(1)(f) of the Police Service (Discipline) Regulations 1990; and sections 1.2 and 2 of the Standard of Practice].

Investigations have identified you were performing the duties of acting sergeant, when you attended the scene of an incident at the intersection of [redacted[26]]. It is alleged Constables Warren and Dunkley had been detailed to attend the scene in relation to a call for service regarding a suspect vehicle (the vehicle). Constables Warren and Dunkley had detained the driver of the vehicle, [redacted[27]] and conducted a search, locating $905 in cash. This money was counted and placed onto the rear tray area on the driver's side of the vehicle.

• you approached the vehicle while Constables Warren and Dunkley arrested [the man[28]] and restrained him in handcuffs;
• Constables Warren and Dunkley then commenced to walk [the arrested man] to their police van;
• whilst Constables Warren and Dunkley were placing [the arrested man[29]] into the back of the police van, you walked around to the driver's side of [the arrested man's[30]] vehicle, in the immediate vicinity of the $905 cash;
• you took possession of this money from the rear of the vehicle;
• you failed to lodge this money as an exhibit; and
• when questioned, you denied taking possession of the money.

[21] The video clearly shows the man (who was arrested at the scene), hand some money to Mr Warren who counted it. A short time later, Mr Warren gave the money to Mr Dunkley.

[22] The video shows the money being placed on the flat tray next to the man who was sitting on the flat tray. The money was placed on the flat tray before Mr King arrived at the scene.

[23] In the transcript of interview, Mr Dunkley said that he put the money on the flat tray 'up against that [tool] box bolted to the flat tray...'[31]. Mr Dunkley said that he did not record the money in his police notebook.[32] Mr Dunkley said that the cash was 'on the tray of the ute' and his partner (Mr Warren) was making enquiries on the radio when Mr King arrived.[33] Mr Dunkley says that Mr King parked his vehicle and 'came over' and at that point, he was comfortable with taking the man officially into custody.[34] Mr Dunkley said that he placed the handcuffs on the man and he and Mr Warren walked the man to the vehicle.[35] Mr Dunkley said that he terminated the recording of his body camera once the man was placed 'in the back of the police car'.[36]

[24] Mr Dunkley's evidence about where he said he left the money is consistent with what is seen in the video footage. The video shows the money sitting on the flat tray on the driver's side of the utility (up against the tool box), prior to Mr King arriving at the scene (at about 5:29:18). I accept Mr Dunkley's evidence about where he said he left the money.

[25] Mr King said that he did not know about the money until after he had left the scene and arrived at the police station. Mr King said that Mr Dunkley rang him from the watchhouse and asked him if he had seen any money.[37] Mr King maintained his evidence that he did not know about the money at the scene during his interviews with the QPS on

9 December 2014 and 8 May 2015.

[26] The evidence of Mr Dunkley and Mr Warren supports Mr King's evidence that he did not know about the money when he arrived at the scene.[38] Both Mr Dunkley and Mr Warren said that the police officers attending the scene (Mr King, Mr Polman and Mr Chew) did not know about the money.

[27] The transcript of interview shows that Mr Dunkley was questioned about whether or not he told Mr King, Mr Polman and/or Mr Chew about the money. Mr Dunkley said, 'Not from memory, no'.[39] Mr Dunkley said that other than Mr Warren, who knew about the money, he does not 'remember briefing any other person' about the money.[40]

[28] Mr Warren's recollection of who knew about the money is consistent with Mr Dunkley's evidence. Mr Warren said that after he counted the money he handed it to Mr Dunkley because he 'didn't want to walk away with the money'.[41] Mr Warren said that Mr Dunkley asked him to do a 'vehicle and person check'.[42] Mr Warren said that after he came back from the car (the police car) he saw the money on the utility.[43] Mr Warren confirmed that he saw the money 'sitting up against, half up against, the toolbox'.[44] Mr Warren did not know who put the money there (on the tray).[45] Mr Warren was questioned about the last time he saw the money. Mr Warren said:

It's that point, in between radioing in for a crew and going back to do the computer checks that was the last time I saw it.[46]

[29] Mr Warren said that Mr King arrived in his vehicle and he informed him (Mr King) about the man. When questioned about the money, Mr Warren said 'to be honest [I] totally forgot about the money'.[47] Mr Warren said that he, Mr Dunkley and the arrested man knew about the money and he only became aware that the money was missing when he was at the watchhouse. Mr Warren said:

...I remembered that the last time I saw it was on the back of the utility so I wasn't sure who had it or where it was.[48]

[30] I am satisfied having considered the evidence of Mr King, Mr Dunkley and Mr Warren that only Mr Dunkley and Mr Warren knew about the money at the scene. I accept Mr King's evidence that is supported by the evidence of Mr Dunkley and Mr Warren that he (Mr King) did not know about the money when he arrived at the scene.

What happened after Mr King arrived at the scene?

[31] The video shows Mr King walking to the passenger's side of the utility (at about 5:29:40). Mr Warren is also seen walking to the driver's side of the utility (from the police van). The video shows Mr Warren and Mr Dunkley arrest the man (at about 5:30:00) and Mr King is still seen standing on the passenger side of the utility and the money is seen sitting on the utility (at about 5:30:34). That is the last time the money is seen on the video (at 5:30:34). Mr Warren and Mr Dunkley are then seen walking the man to the police van (at about 5:30:40). Mr Polman and Mr Chew arrive a few seconds later. The video shows the arrested man getting into the back of the police van (at about 5:31:02). Mr King is then briefly seen standing on the driver's side of the utility (at about 5:31:08) and Mr Dunkley is seen walking back towards the utility as the video ends (at about 5:31:14).

[32] All of the officers attending the scene gave evidence about what happened after the arrested man was placed inside the police van.

[33] It is non-contentious that Mr Warren stayed at the police van to observe the arrested man (who was sitting inside the van) while Mr Dunkley, Mr Polman and Mr Chew returned to the utility. The evidence given by Mr King, Mr Dunkley, Mr Polman and Mr Chew about what happened when the officers returned to the utility is not consistent, suffice it to say, that the utility was searched, and the officers who searched it later said that they did not see any money.

[34] It is noncontroversial that Mr Dunkley and Mr Warren were the first officers to leave the scene. They transported the arrested man to the hospital and then the watchhouse. Mr Polman and Mr Chew were the next officers to leave the scene. Mr King stayed behind to observe the utility before leaving the scene and arriving at the local police station.

What did Mr King say about the missing money?

[35] In summary, Mr King said that Mr Dunkley opened the driver's door and unlocked the passenger's door of the utility.[49] Mr King said that he searched the passenger's side of the utility and Mr Polman searched the driver's side of the utility.[50] Mr King said that Mr Chew searched the tool box on the passenger's side and he (Mr King) also 'looked in' the tool box on the passenger's side.[51]

[36] In the QPS interview, Mr King denies that he took the money.[52] Mr King maintained his evidence that he did not take the money throughout both of the QPS interviews. Mr King said that he did not see any money.[53] Mr King said that he did not know about the money until he received a phone call from Mr Dunkley who told him about the money.[54] Mr King said '...my career in this job is not worth risking whatever how much that was, not a hope in hell'.[55]

[37] Mr King was questioned about the video during the 2014 interview. Mr King said that he would have been standing near the utility. Mr King said 'because he [Mr Dunkley] was coming back towards me. I was left of the [utility] when they were taking him [the arrested man] to the van'.[56] Mr King said he did not know where Mr Chew was and said '...I got [Mr Chew] to run a rego check...'.[57] Mr King said that Mr Dunkley came back to the utility and opened the driver's door and unlocked the passenger's door.[58] Mr King said that he searched the passenger's side and Mr Polman searched the driver's side of the utility.[59] Mr King said that 'I think [Mr Chew] searched the box that was on the back of the tray'.[60] Mr King was not certain about this and said 'I think, I can't remember'.[61] Mr King said that Mr Chew was on the passenger's side when he searched the tool box. Mr King said that he was standing on the passenger's side and looked in the tool box when Mr Chew opened it (from the passenger's side).[62] Mr King was questioned about what Mr Chew was doing while he (Mr King) and Mr Polman searched the utility. Mr King was not certain about where Mr Chew was and said 'I don't know because I was on my knees...he might've just been at the back of the car...'[63]

[38] Mr King said that he went next door to speak to the informant and came back to the utility and said 'they [Mr Dunkley and Mr Warren] went'.[64] Mr King was questioned about the video. Mr King said that he moved around the back of the utility to look at why 'it [the utility] was stuck'.[65] Mr King referred to the utility as 'sitting there like up on the gutter'.[66] Mr King was questioned about whether or not he was looking at the back of the tray (at about 5:31:08). Mr King said '...I'm looking at the back of the ute I think, I'm standing next to the ute, I'm not going to deny that'.[67] Mr King said that he did not see any money. Mr King said he was not looking for money because he did not know it was there.[68] Mr King said that if he had seen money there he would have 'grabbed it straight away and yelled out to the crew and said what's this because they hadn't left'.[69]

[39] During the 2015 interview, Mr King said that he has 'gotten up and walked around to this side to the driver's side rear of, of the ute' and said that Mr Dunkley, Mr Chew and Mr Polman have all come back to the utility.[70] Mr King said that Mr Dunkley, Mr Chew and Mr Polman were on the driver's side (of the utility) and Mr Dunkley unlocked it. Mr King said that either Mr Dunkley or Mr Polman 'leaned in and unlocked the passenger's side door'. Mr King said that Mr Chew 'came back around' to him (Mr King) to the passenger's side and said 'we searched and old mate the, the offender started to kick the van'. Mr King said that he told Mr Dunkley 'to go'. Mr King said '[w]e've locked the ute, I've gone to my car...'. Mr King said that Mr Polman and Mr Chew 'have disappeared to try and find the owner...'. Mr King said that he stayed at the scene because he thought the utility might 'have to be guarded'.[71] Mr King said that he then went to the local police station and Mr Dunkley rang him and 'asked if we'd seen any money'.[72] Mr King said that Mr Chew and Mr Polman were standing with him when he received the telephone call from Mr Dunkley.[73]

What did Mr Warren say about the missing money?

[40] Mr Warren said that he stayed at the police van to observe the man because Mr King told him to 'stay there'.[74] Mr Warren was not sure where Mr King was standing when Mr King told him (Mr Warren) to stay at the police van. Mr Warren said that 'he [Mr King] was closer to the offender's vehicle but I'm not sure exactly where'.[75] Mr Warren said that Mr King, Mr Polman and Mr Chew went back to the utility.[76]

[41] When questioned about the money, Mr Warren said that Mr Dunkley was 'stressing that he couldn't remember what he did with it'.[77] Mr Warren said that Mr Dunkley said the same thing as him that he was 'distracted by the way the offender was acting'. Mr Warren said that the 'focus was so much on him [the arrested man] that we've actually forgot the money was sitting on the tray when we actually arrested him'.[78]

What did Mr Dunkley say about the missing money?

[42] In summary, Mr Dunkley said that Mr Polman unlocked the passenger's side of the utility. Mr Dunkley said that he searched the passenger's side of the utility and Mr Polman searched the driver's side.

[43] In his interview with the QPS, Mr Dunkley said that after the man was taken to the police vehicle, Mr Warren 'stayed at the [police] vehicle, at the back of the vehicle to keep observations on the [arrested man]' and he (Mr Dunkley) 'returned to the vehicle [the utility]'.[79] Mr Dunkley said that 'by this stage' the second back up crew (Mr Polman and Mr Chew) arrived and began to conduct a search of the utility. Mr Dunkley said that Mr Polman was 'in the driver's side door, the driver's side of the cab searching the vehicle'.[80] Mr Dunkley said that he 'briefly spoke' to Mr King and said '...I think about what we were going to do from there'.[81]

[44] Mr Dunkley's evidence given after the arrested man was placed inside the police van and he had terminated his recording is as stated by him 'from memory'.[82] Mr Dunkley said that he got Mr Polman to unlock the passenger's side of the utility and he (Mr Dunkley) searched the passenger side of the 'cab' (the utility) for 'at most 15 seconds'.[83] Mr Dunkley said that he and Mr Warren then went back to the police car and transported the arrested man to the hospital and then the watchhouse.[84]

[45] Mr Dunkley was questioned about his recollection of where the other police officers were at the police 'vehicle' (meaning the utility) after he and Mr Warren had put the man in the back of the police car. Mr Dunkley

said:

The other crew of [Mr Polman and Mr Chew] had just arrived and I think, they weren't I don't think they were at the vehicle [the utility] yet but I'm pretty sure [Mr King] was still at the vehicle...standing at the driver's side of the vehicle.[85]

[46] In relation to the missing money, Mr Dunkley said that one of the watchhouse officers approached him and said that the prisoner (the arrested man) was asking about a quantity of money. Mr Dunkley said that he was then reminded of the money and the fact that he did not have it. Mr Dunkley said that he called Mr King. The relevant extract from the transcript is as follows:

...one of the watchhouse [sic] approached me and said that the prisoner was asking about a quantity of money asking what happened to it basically ensuring that we still had the money and that reminded me of the money and the fact that basically I didn't have it. I then checked all my pockets immediately and so did [Mr Warren]. I went out to the police vehicle that was parked in the car park, unlocked it and had a look through the cabin of the vehicle and also around the rear doors because it was a police van [sic] around the cage and the gaps in between and couldn't find any cash. We finished up at the watchhouse as quickly as we could and I called [Mr King] back at the station and told him about it. I was informed by him that he'd spoken with Harley [Mr Polman] and Richard [Mr Chew], they had not seen the cash, and he had not seen the cash so they didn't know where it was. We left from the watchhouse and went directly from there straight back to the vehicle which was still parked [at the scene] and searched the tray where I last remembered leaving it, the cash and around underneath the ute and the surrounding area and couldn't find any cash. By this stage [Mr King] had informed the OIC Matt Lyons about the incident and he got one of the officers that was on shift to head over to the car and look for the cash as well and he was there before we got there and obviously hadn't been able to find the cash from there....there was no wind and there was no evidence of any notes laying around that the quantity of notes that would've been a few notes at least if the notes had got blown away. We figured that the property is just, has been picked up by someone and hadn't blown away, basically we negated that and because we were on overtime we got back in the police vehicle came back...[86]

[47] Mr Dunkley denies taking the money and said that he did not see the 'money get taken'.[87] Mr Dunkley could not recall the 'exact nature of the conversation like the actual words' he had with Mr King when he rang him from the watchhouse.[88] Mr Dunkley said that he told Mr King that the money was missing and asked him whether or not he saw any of the cash at the vehicle while he was there.[89] Mr Dunkley said he asked Mr King to ask Mr Polman and Mr Chew (when they get back) if they have seen the cash 'at any point'.[90] Mr Dunkley said that Mr King made one or two more phone calls (to him) while they were waiting for the warrant to get faxed through.[91]

What did Mr Polman say about the missing money?

[48] In summary, Mr Polman said that he searched the driver's side of the utility and the tool box from the passenger's side after walking around to the front of the utility. Mr Polman said that Mr King searched the passenger's side of the utility. Mr Polman said that the tool box had already been searched by someone. Mr Polman said that prior to searching the utility, Mr Dunkley told him no one had searched it (the utility).

[49] Mr Polman in his interview said that when he arrived at the scene Mr King was 'near his car' which was parked about 10 meters away on the 'passenger's side of the [arrested man's] vehicle'.[92] It is Mr Polman's evidence that during the time that Mr Dunkley and Mr Warren put the arrested man in the police van, he and Mr Chew were also at the rear of the police vehicle.[93] Mr Polman was not '100% certain' at that point in time where Mr King was standing. Mr Polman said 'I think he was still near his car or near the suspect's car, I don't know'.[94] Mr Polman said that after the man was placed inside the police van he walked over to the utility and started searching the vehicle. When questioned about where Mr King was, Mr Polman said:

I think he was still to the right of the suspect's vehicle but he wasn't at the vehicle I don't think, I'm not a 100%. He wasn't at the suspect's vehicle yet I don't think.[95]

[50] Mr Polman's evidence is that he searched inside the driver's side of the utility and the toolbox.[96] Mr Polman was questioned about whether or not he had a conversation with either Mr Dunkley or Mr Warren about anything that 'might be in the vehicle'.[97] Mr Polman said, 'No, I think I just asked had they searched the vehicle yet'.[98] Mr Polman said that they (Mr Dunkley and Mr Warren) said 'No'.[99]

[51] Mr Polman's evidence is that he spent two to three minutes searching the inside of the utility.[100] When questioned about where everybody was 'at that point' Mr Polman said that Mr Dunkley came over behind him 'initially' and told him that we (meaning Mr Dunkley and Mr Warren) were going to take the arrested man to the hospital. Mr Polman said they started talking to Mr King.[101] Mr Polman said that Mr Chew was at the back of the utility and said 'he was doing a QV'.[102] Mr Polman said Mr King was on the passenger's side of the utility.[103]

[52] Mr Polman said he walked around the front of the utility and opened the toolbox from the passenger's side.[104] Mr Polman said that the search of the tool box was 'an afterthought' and said 'I think it had already been searched by someone, I just looked in there again'.[105] When questioned about 'who else was there', Mr Polman said that Mr Chew and Mr King had gone to speak to the informant.[106] Mr Polman later said (when prompted) that Mr Chew was doing a 'QV' and Mr King searched the passenger's side of the utility while he (Mr Polman) searched the driver's side.[107]

[53] It is Mr Polman's evidence that he did not see any money on the back of the utility.[108] Mr Polman said that he did not see anybody take any money from the back of the utility.[109] Mr Polman said that he became aware the money was missing when he arrived at the police station after dropping off the keys (to the utility) at the watchhouse.[110] Mr Polman said that Mr King asked him if he had seen any money.[111] Mr Polman said that he did not take the money from the back of the utility.[112]

[54] Mr Polman was shown the footage from Mr Dunkley's body camera. Mr Polman confirmed that the money is seen in the video on the back of the utility. Mr Polman was questioned about his search of the utility and whether or not it was possible that the money was there, but he did not see it. Mr Polman said 'I hope I would've noticed the money there but yeh maybe. I don't know'. The relevant extract from the transcript is as follows:

POLMAN Like I said I came around to the driver's side and started searching that side.

LAWSON Could it have been the case that the money was there but you didn't see it?

POLMAN I think, I hope I would've noticed the money there but yeh maybe. I don't know.

LAWSON You don't recall seeing the money in that position on the ute?

What did Mr Chew say about the missing money?

[55] In summary, Mr Chew said that Mr Polman searched the driver's side area of the utility (after Mr Dunkley and Mr Warren had left). Mr Chew said that Mr King was not there for the whole search but when he came back (from speaking to the informant), he (Mr King) searched the passenger's side of the utility. Mr Chew said that Mr Dunkley did not search the utility. Mr Chew said that he (Mr Chew) searched the tool box on the driver's side and did not see any money. Mr Chew said that it was not possible to search the tool box from the passenger's side of the utility.

[56] In his interview with the QPS, Mr Chew could not 'recall exactly' where Mr King was when Mr Dunkley and Mr Warren arrested the man. Mr Chew said that he 'saw him [Mr King] near the [utility]'.[114] Mr Chew said that after the man was arrested and put inside the police car Mr Warren 'stayed at the back of the [police] car'.[115] Mr Chew said that Mr Dunkley put on gloves to search the utility but said 'he didn't search the [utility]'.[116] Mr Chew said that Mr Dunkley 'hopped in the car' (with Mr Warren and the arrested man) and went to the hospital.[117]

[57] Mr Chew said that after Mr Dunkley and Mr Warren left, Mr Polman searched the driver's side of the utility. Mr Chew said that Mr King was not there 'for all of it' meaning the search of the utility. Mr Chew said that Mr King was next door at the house and then he came back and he was 'in the car' meaning the utility referring to the passenger's side 'having a look around'.[118] Mr Chew said that they were at the utility for 'maybe' five minutes.[119]

[58] Mr Chew did not search the utility but said that he did open up the tool box on the back of the utility 'on the driver's side'.[120] When questioned about whether or not he (Mr Chew) was standing 'just behind the driver's door', Mr Chew said, 'yes'.[121] Mr Chew said that the only way to open the tool box is from the driver's side and said 'because that's where the catch is'.[122] Mr Chew was questioned about whether or not Mr Polman opened the tool box from the other side (the passenger's side). Mr Chew said 'No, not from the other side'.[123] Mr Chew was questioned about whether or not he remembers anyone else opening the tool box. Mr Chew said that Mr King opened the tool box (from the driver's side).[124]

[59] Mr Chew said that he did not see any money.[125] Mr Chew said that he does not know what happened to the money.[126] Mr Chew said that he did not have any discussion with Mr King about any money that he (Mr King) may have located.[127] Mr Chew was questioned about whether or not he noticed any money on the tray of the utility, beside the tool box. Mr Chew said 'No, I did not'.[128] Mr Chew was questioned about whether or not he saw anybody take any money and whether or not he took any money. Mr Chew answered 'No' to both questions.[129] Mr Chew said that he first became aware of the money when he and Mr Polman were in the equipment room (of the police station). Mr Chew said that Mr King was on the phone and said 'did you guys see any money?'.[130]

[60] In written submissions, the respondent contends that there was a window of opportunity of 34 seconds from when the money was last seen on the video and when it was gone.[131] The respondent contends that the video clearly shows that Mr King was the only person in the vicinity of the money when it was left on the tray of the utility.[132] The respondent says that Mr King was the only officer who could account for the money in the moments from when it was last seen (on the footage) and when it was gone.[133] The respondent submits that the 'small window' of 34 seconds afforded Mr King the time and opportunity to take the money.[134]

[61] Mr McLeod for the respondent in his oral submissions says that it is open to the Tribunal to draw the inference from Mr Polman's evidence that the money was not something he (Mr Polman) would have missed when he searched the utility. Mr McLeod says that a reasonable inference can also be drawn from the evidence of Mr Chew that the money had been taken sometime before Mr Chew searched the tool box.

[62] I am not satisfied having considered all of the evidence in particular the transcripts of interview and the video footage that the money was missing prior to the utility being searched by the officers at the scene including Mr Polman and Mr Chew, after the arrested man was placed inside the police van.

[63] It is open to me to find that Mr Polman's evidence about whether or not he saw the money when he opened the tool box from the passenger's side of the utility is equivocal and has not been properly tested by the QPS. Mr Polman when questioned about whether or not the money was there said, 'I think, I hope I would've noticed the money there but yeah maybe. I don't know'. Notwithstanding Mr Polman's evidence about what he said he did or did not see when he opened the tool box, Mr Chew's evidence is that it was not possible to open the tool box from the passenger's side of the utility. Mr Polman was not questioned by the QPS during his interview about Mr Chew's evidence that the tool box could only be opened from the driver's side.

[64] Mr Chew's evidence is that the money was not there when he searched the tool box from the driver's side. Mr Chew when questioned about whether or not he saw any money said 'No, I did not'. Mr Chew's evidence is unequivocal about whether or not he saw the money.

[65] As I have said, there are some inconsistencies in the evidence given by Mr King, Mr Dunkley, Mr Polman and Mr Chew about which officers searched the utility and tool box after the arrested man was placed inside the police van. Such as, where certain officers were placed during the search of the utility and tool box and which officers searched the utility and tool box. The inconsistencies in the evidence given by the officers attending the scene becomes apparent when the evidence of each of the officers interviewed is considered together.

[66] Mr Dunkley said that Mr Polman unlocked the passenger's side of the utility and searched the driver's side of the utility. Mr Dunkley said that he searched the passenger's side of the utility. Mr Dunkley's evidence is contrary to Mr Chew's evidence. Mr Chew said that Mr Polman searched the driver's side of the utility after Mr Dunkley and Mr Warren had left the scene (with the arrested man). Mr Chew also said that Mr Dunkley did not search the utility. Mr Dunkley was not questioned by the QPS about Mr Chew's evidence.

[67] I have found that Mr Polman's evidence about whether or not he saw the money when he searched the tool box from the passenger's side, is equivocal and has not been properly tested. This is because Mr Polman was not questioned during the QPS interview about Mr Chew's evidence. Mr Chew said that it is not possible to open the tool box from the passenger's side of the utility.

[68] Mr Polman was questioned during his QPS interview about what Mr Chew was doing during the search of the utility. Mr Polman said that Mr Chew was at the back of the utility and later said that Mr Chew was doing a 'QV'.

[69] Mr Chew said that Mr Polman searched the driver's side of the utility after Mr Dunkley and Mr Warren had left the scene. Mr Chew said that Mr King was not there for the whole search. Mr Chew said that he did not search the utility but did open the tool box on the driver's side of the utility. Mr Chew said that Mr King opened the tool box from the same side he (Mr Chew) opened it from. Mr Chew accepted when questioned during the QPS interview that he was standing behind the driver's door when he searched the tool box. I have found that Mr Chew's evidence about whether or not he saw any money when he searched the tool box on the driver's side is unequivocal. Mr Chew was not questioned however during his QPS interview about when he searched the tool box and where he was standing when Mr Polman searched the driver's side of the utility. Mr Chew was not questioned about Mr Polman's evidence given in relation to where he (Mr Chew) was positioned during the search of the utility. Mr Polman said that Mr Chew was at the back of the utility doing a 'QV'. Mr Chew was not questioned about Mr King's evidence that he (Mr King) opened the tool box from the passenger's side.

[70] Mr King said that Mr Dunkley unlocked both doors of the utility and he (Mr King) and Mr Polman searched the utility. Mr King said that he searched the passenger's side and Mr Polman searched the driver's side of the utility. Mr King said that Mr Chew opened the tool box on the passenger's side. Mr King said that he looked inside the tool box when Mr Chew opened it. Mr King was not questioned during his QPS interview about Mr Chew's evidence that the tool box could not be opened from the passenger's side of the utility.

[71] Each of the officers attending the scene were not questioned by the QPS during their respective interviews about:

1. Whether or not the inside of the utility and flat tray were searched before Mr King left the scene to speak to the neighbour;

2. Whether or not the inside of the utility and flat tray were searched before Mr Dunkley and Mr Warren left to transport the arrested man to the hospital and then to the watchhouse;

3. Whether or not the tool box could only be opened from the driver's side because that is where the 'catch is';[135]

4. Where certain officers were placed during the search of the inside of the utility and the tool box and when the officers searched the inside of the utility and the tool box.

[72] I cannot be satisfied to the required standard having considered the evidence of Mr King, Mr Dunkley, Mr Polman and Mr Chew that the money went missing prior to the search of the utility and tool box, after the arrested man was placed inside the van. I have found that Mr Chew's evidence, that he did not see the money when he searched the tool box from the driver's side of the utility, is unequivocal. I have also found that there are inconsistencies in the evidence given by the officers who attended the scene about which officers searched the inside of the utility and the tool box and where certain officers were placed during the search.

[73] The evidence falls short of establishing when the money went missing. As held in Briginshaw's case, in applying the standard of proof 'reasonable satisfaction' (as to the matter proven) should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences'.[136] I cannot be satisfied having considered the evidence of the officers who attended the scene as to which officers searched the inside of the utility and tool box and where certain officers where placed during the search. It is open to me to find that the money went missing during the search of the utility and tool box, after the arrested man was placed inside the police van.

Did Mr King take the money from the flat tray?

[74] I accept the respondent's submission that the video places Mr King on the passenger's side of the utility at the time the man was arrested by Mr Dunkley. I also accept the respondent's submission that the video places Mr King near the driver's side of the utility after the arrested man was placed inside the police van.

[75] The money was last seen in the video sitting on the flat tray at about 5:30:34. Mr Dunkley and Mr Warren are seen walking the arrested man to the police van and after he is placed inside the police van, Mr King is briefly seen standing on the driver's side of the utility (at about 5:31:08). The video shows the assisting police officers (Mr Polman and Mr Chew) standing near the police van while the arrested man is being placed inside the van.

[76] The video of Mr King standing near the driver's side of the utility (after the arrest) can at best be described as fleeting. I cannot determine with any degree of certainty, even after viewing the reduced speed and enhanced videos, how close Mr King was standing to the flat tray on the driver's side of the utility in relation to the money as it was last seen in the video footage (at 5:30:34). I have found that Mr King did not know about the money when he arrived at the scene. It is evident from viewing the video, and open to me to find, that Mr King would not have been able to see the money from where he was standing on the passenger's side of the utility (at about 5:29:46) and I find accordingly.

[77] The respondent says that the video shows Mr King leaning over and moving his arms and upper torso in the area where the money had been left on the driver's side of the utility.[137]

[78] I have considered the video and Mr King's evidence in relation to him standing on the driver's side of the utility. Mr King said that he does not know how close he was standing (as depicted in the video) to the utility. Mr King said (in relation to how close he was standing) 'I don't know, three foot, two foot, I've got no idea'.[138] Mr King said he looked under 'this side up' and said he 'just got up and wandered around'.[139] Mr King said he was 'looking down towards the [and] probably across the tray'.[140]

[79] Mr King provides an explanation for his upper arm and torso movements seen in the video footage. Mr King said that he got on his hands and knees and was looking underneath the utility and said 'because it was stuck'.[141] Mr King said that he got on his hands and knees and looked underneath and then got up and walked around and said 'probably only just sort of gotten here as they came back'.[142]

[80] Mr King's evidence about his movements briefly seen on the video whilst he was standing near the driver's side of the utility is plausible having viewed the entire video including the enhancements and slow-time footage and considered the evidence of the officers attending the scene.

[81] The video clearly shows the utility sitting partially raised over a curb or obstruction on the side of the road. It is evident from viewing and listening to the audio of the video that there was a brief discussion between the arrested man, Mr Dunkley and Mr Warren about the utility's position on the side of the road before Mr King arrived at the scene. Mr Warren's evidence also confirms Mr King's evidence about the position of the utility (that it was positioned on an obstruction). Mr Warren said that the utility was half up a gutter and said that it (the utility) was 'on a makeshift footpath'. Mr Warren said that you could still see the tyre tracks and said 'where he's actually driven up onto the, half onto the gutter'.[143] I find that the utility was sitting on an obstruction.

[82] I have found that Mr King did not know about the money sitting on the driver's side of the flat tray when he arrived at the scene and did not know about the money when he was standing on the passenger's side of the utility. I have found that the utility was sitting on an obstruction. It is open to me to find that Mr King (as stated by him) 'wandered' around from the passenger's side of the utility to the driver's side to view underneath the utility. I have found that Mr King's explanation for the movement of his arms and upper torso (as seen in the video) when he is seen standing near the driver's side of the utility is plausible based on all of the evidence. It is open to me to find that Mr King was not (as submitted[144]) leaning over and moving his arms and upper torso in the area where the money had been left (as it was last seen in the video) but was standing near the driver's side of the utility having looked underneath it (the utility) to view the obstruction.

[83] I have found that the evidence of the officers at the scene including Mr King, Mr Dunkley, Mr Polman and Mr Chew in relation to which officers searched the utility and where certain officers were placed during the search, after the arrested man was placed inside the police van, is inconsistent.

[84] I am not satisfied to the required standard based on the evidence before me that Mr King was the only officer who could account for the money in the moments from when it was last seen (in the video) and when it was gone. I have found that the evidence falls short of establishing when the money went missing. It is not open to me to find based on the evidence of the officers attending the scene and the video footage that Mr King was placed in the vicinity of the money when it was last seen in the video and when it was gone.

[85] I have found that the money could have gone missing during the search of the utility and tool box, after the arrested man was placed inside the police van. It is plausible and open to me to find that the money was taken during the search of the utility by one of the officers (not Mr King) with the honest intention of dealing with the money for an official purpose and the money has been misplaced after leaving the scene. It is also plausible and open to me to find that the money went missing after the last time that it was last seen in the video footage, after the search of the utility and tool box, and its whereabouts may never be known.

[86] Mr King has maintained his evidence during the 2014 and 2015 interviews that he did not see any money and did not take any money.[145] I have found that there are some inconsistencies in the evidence given by Mr King, Mr Polman, Mr Dunkley and Mr Chew about where certain officers where placed when the utility was searched and which officers searched the utility. I could not be satisfied to the required standard that the money went missing prior to the officers including Mr Polman and Mr Chew, searching the utility and the tool box, after the arrested man was placed inside the van.

[87] I have found that Mr King is not the only officer who can account for the missing money. The respondent says that the video places Mr King near the money and shows him moving his arms and upper torso near where the money was last seen in the video. I have found that Mr King did not know about the money when he arrived at the scene and when he was standing on the passenger's side of the utility. I have also found that Mr King's explanation for any movement of his arms and upper torso as seen in the video is plausible because the utility was on an obstruction and Mr King may have been looking underneath the utility to view the obstruction.

[88] The respondent relies on the evidence of the police officers who attended the scene contained in transcripts of the interviews, and the video footage.[146] I have made findings about the video and the evidence of the officers who attended the scene. It is open to me to find that the evidence gives rise to more than one explanation for the missing money. I cannot be satisfied to the required standard that Matter One is proven.

[89] The correct and preferable decision is that the respondent's decision made on 12 October 2016 that a finding of misconduct for Matter One is proven is set aside and a substituted decision is made that Matter One is not substantiated. I order accordingly.

[1] Applicant's outline of submissions filed on 12 April 2017.

[2] Reply submissions on behalf of the respondent filed on 3 May 2017.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), s 20.

[4] Crime and Corruption Act 2001 (Qld), s 219H.

[5] Ibid, s 219BA. Schedule 2 defines 'corruption' as 'police misconduct'. See DA v Deputy Commissioner Stewart [2011] QCATA 359, [84].

[6] Police Service Administration Act 1990 (Qld), s 1.4.

[7] Murray v Deputy Commissioner Stewart [2011] QCAT 583 at [40] and see Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, [6].

[8] [2009] QCA 302; [2010] 2 Qd R 235.

[10] Aldrich v Ross [2009] QCA 302; [2010] 2 Qd R 235, 257.

[11] Aldrich v Ross [2009] QCA 302; [2010] 2 Qd R 235, 258.

[12] Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, [30].

[14] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[15] [1938] HCA 34; (1938) 60 CLR 336.

[17] [2009] QSC 409.

[19] Officer JGB v Deputy Commissioner Gollschewski [2016] QCAT 348, [74]-[75].

[20] The material that was before the respondent decision-maker was filed in the Tribunal pursuant to s 21 of the QCAT Act and is now referred to as 'the s 21 material'.

[21] [2010] QCAT 564.

[23] Police Service Administration Act 1990 (Qld), s 4.9.

[24] Police Service Discipline Regulations 1990 (Qld), s 91C.

[25] Reasons de-identified pursuant to the Tribunal's direction dated 20 July 2017.

[26] Reasons de-identified pursuant to the Tribunal's direction dated 20 July 2017.

[31] Section 21 material, pp 228-229. See p 229, L 211.

[35] Section 21 material, p 229, L 215-221.

[39] Ibid, p 231, 334. See also p 235, L 564.

[108] Ibid, p 266, L 401 and p 268, L 491.

[113] Section 21 material, pp 269-270.

[131] Respondent's outline of submissions filed on 15 March 2017 and reply submissions filed on 3 May 2017.

[135] Section 21 material, p 282, L507.

[136] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361.

[137] Respondent's reply submissions filed on 3 May 2017, p 4.

[144] Respondent's reply submissions filed on 3 May 2017, p 4.

[145] Section 21 material, pp 61, 70, 71, 74.

[146] Respondent's outline of submissions filed on 15 March 2017 and reply submissions filed on 3 May 2017.