POLICE - INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL FOR MISCONDUCT - QUEENSLAND - whether the charge is defective - failure to allege deliberate untruthfulness - whether charge is substantiated - failure to exclude likelihood of memory lapse after time

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

Aldrich v Ross [2001] 2 Qd R 234

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

Crime and Misconduct Commission v Nikola & Hoffman (unreported Misconduct Tribunal Appeal 1 of 2007)

Melling v O'Reilly (unreported Misconduct Tribunal Appeal 6 of 1991)

R v Taouk [2005] NSWCCA 155

Mr S McLeod, Counsel, instructed by Queensland Police Service Legal Unit represented Deputy Commissioner Brett Pointing

Ms R Vass represented the Crime and Corruption Commission

[1] Christopher O'Keefe, a Constable of Police, has applied for a review of the finding of misconduct made against him by Deputy Commissioner Brett Pointing on 1 June 2016.

[2] The subject matter of the disciplinary hearing was:

That between 28 July 2012 and 12 July 2013 you engaged in misconduct in that you:

(a) Failed to diligently fulfil your official duties due to a personal interest involving Mr Nathan Choi;

(b) Provided false and misleading information on a Queensland Police Service QP9; and

(c) Were untruthful during a disciplinary interview.

[3] Matters One (a) and (b) were found to not be substantiated.

[4] The following further and better particulars in relation to Matter One (c) were provided, namely:

• During an interview with ESC investigators, you were reminded of the Commissioner's direction to answer questions truthfully, completely and promptly;
• You were untruthful to ESC investigators by stating Sergeant Cowan had not advised you:

  • The traffic crash was a "hit and run" incident;

  • There was a witness to the incident;

  • The driver of Unit 1 was Mr Nathan Choi and he was unlicensed; and

  • The driver was liable for offences of "due care and fail to remain."

[5] The alleged untruthfulness occurred during two internal investigation interviews involving Constable O'Keefe, the first with Deputy Inspector Andrew Massingham on 1 May 2013, and the second with Deputy Inspector Massingham and Detective Senior Sergeant David Winter on 11 July 2013 relating to Constable O'Keefe's conduct in the investigation of a traffic incident which occurred on 28 July 2012.

[6] When Constable O'Keefe attended the accident scene, Sergeant Cowan was already in attendance. The two had a conversation which, unbeknownst to Constable O'Keefe until the second interview on

11 July 2013, was taped by Sergeant Cowan. It is not controversial that during the course of the conversation Sergeant Cowan advised Constable O'Keefe that:

1. The incident was a hit and run;

2. There was a witness to it;

3. The driver of one of the vehicles involved was Nathan Choi who was unlicensed; and

4. Nathan Choi had failed to exercise due care and had failed to remain at the scene of the accident.

[7] Constable O'Keefe made to, and received from, telephone calls with former Sergeant Olsen whom he knew to be a friend of Nathan Choi's father.

[8] Constable O'Keefe subsequently charged Nathan Choi with unlicensed driving, but not the due care and fail to remain offences.

[9] Deputy Commissioner Pointing found that Matters One (a) and (b) had not been proven to the required standard and were accordingly unsubstantiated. He was reasonably satisfied to the required standard that Matter One (c) was proven and that matter was substantiated and that the conduct amounted to misconduct.

[10] The review sought by Constable O'Keefe is of both substantiation and severity of sanction. It is submitted on his behalf that:

1. The charge itself is defective because 'neither the charge nor the particulars allege any "deliberate" untruthfulness or dishonesty';[1]

2. Alternatively, if the charge is properly conceived, it has not been proven to the relevant standard;[2]

3. If the charge is substantiated, the sanction imposed is manifestly excessive.

[11] The review of the decision is a fresh hearing on the merits to produce the correct and preferable decision.[3]

[12] In support of his contention that that charge is defective, Mr Gnech for Constable O'Keefe relies substantially on the decisions of Melling v O'Reilly[4] (Melling) and Crime and Misconduct Commission v Nikola & Hoffman[5] (Nikola & Hoffman), both decisions of the misconduct tribunal.

[13] Mr McLeod for Deputy Commissioner Pointing submits that those decisions must be considered having regard to the following observations of Thomas QC and Senior Member Oliver in Chapman v Assistant Commissioner Wilson and Anor[6] (Chapman):

Counsel for the police officers referred to Blanchard v Deputy Commissioner Conder (TA 5 of 2005, 10 September 2006, a decision of the former Misconduct Tribunal). At paragraph 69 of that case the view was expressed that it must be shown "that the person has deliberately lied in the sense that they knew the truth and consciously and knowingly gave a false or incorrect statement that was contrary to the truth".

With respect, while that may often be so, as a general statement it is too narrow. Just as there may be misrepresentation by silence, deliberate omissions which lead to the presentation of an untrue picture could found a charge of "untruthfulness" in the context of a police disciplinary matter.

It is worth noting that if questioning is not specific enough, many interpretations may be possible on the part of an interviewee, and if asked to give a version of an event, it may be reasonable to simply provide the main points. To leave out a minor detail is not necessarily untruthful. Forgetfulness may reflect poorly on a police officer, but it is not untruthfulness.

A person will not be guilty of untruthfulness through mere inaccuracy or honest mistake. If a person believes a statement is correct at the time the person makes it, the person is not being untruthful. In the context of police interviews we consider that an officer is "untruthful" if he or she knowingly misleads the interviewer (by act or omission) or knowingly makes a false statement.

[14] In Melling, the relevant disciplinary charge alleged misconduct 'by falsely stating in a report that you were unaware of evidence...'[7]

[15] In Nikola & Hoffman, the alleged misconduct was particularised as 'provided false information to administrative officers at the state crime operation command regarding claims for meal and incidental allowances...'[8]

[16] In Melling, Dr Forbes noted:[9]

The ordinary meaning of "false" is "erroneous", "wrong" or "incorrect"... A false statement, then, may be more or less culpable or entirely innocent.

[17] In Nikola & Hoffman, Member Richards found that these observations applied and that the disciplinary charge should 'particularise the misconduct as knowingly providing false information or dishonestly providing false information to administrative officers'.[10]

[18] Adopting the observations I have referred to in Chapman, an allegation of untruthfulness can be distinguished from an allegation of falsely stating or providing information. The former, unlike the latter, cannot be established through mere inaccuracy or honest mistake. I am satisfied for that reason that the charge is not defective.

[19] That is not to say, however, that the better particulars sought by Constable O'Keefe need not have been provided, nor that Deputy Commissioner Pointing's decision could not have identified with more particularity the untruthfulness, nor the Deputy Commissioner Pointing's findings need not identify the particular responses of Constable O'Keefe which were untruthful.

[20] While the decision under review makes reference to comments of Chapman in paragraph 54, I do not see that the charges were brought or any finding of untruthfulness made on the basis of silence or deliberate omissions. Rather, it is said that Constable O'Keefe claimed to have no recollection of some parts of his conversation with Sergeant Cowan when he in fact did.

[21] The applicable standard of proof is the civil standard on the balance of probabilities.[11] The respondent bears the onus of proof.

[22] While the Tribunal must reach its own decision, I acknowledge the contents in Aldrich v Ross,[12] that the Tribunal ought 'give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force'.

[23] In particular, I accept Deputy Commissioner Pointing's finding that:

On the day of the incident your work ethic was lacking or you were the subject of an abject failure to comply with basic investigation and operational practices.

[24] That lack of application or competence Deputy Commissioner Pointing says 'does not sit well with your achievements within the service'.[13]

[25] Deputy Commissioner Pointing found Constable O'Keefe's 'lapses in memory to be self-serving'[14] and 'confined only to the particulars relevant to the matter'.[15]

[26] He says that Constable O'Keefe's memory lapse is 'selective' and that 'You do remember those things that assist you in this matter and pretend to not remember those which do not'.[16] This is supported, he says by:

1. Constable O'Keefe's clear recollection about parts of the conversation;[17]

2. His identification of the need to locate Nathan Choy and his recollection of seeking the assistance of former Sergeant Olsen;[18]

3. His recollection of other matters involving Gary Choy;[19]

4. His engagement in the conversation with Sergeant Cowan and Ms Jemison where he 'asked questions, clarified issues and took the initiative to locate an alleged offender';[20] and

5. Inconsistency of his performance having regard to previous history.

[27] Deputy Commissioner Pointing concludes that 'your deliberate untruthfulness is an attempt to cover up your poor work performance'.[21]

[28] In his written submissions, Mr McLeod said:[22]

When the respondent's reasons are read as a whole, fairly and collectively there was a clear foundation upon which the respondent could conclude that Matter One (c) was substantiated. The Tribunal should reach a like conclusion.

[29] In his written submissions, Mr Gnech disagrees:[23]

The evidence in fact reasonably infers any false statement by the applicant was a lack of memory due to:

(a) The nine months and 11.5 months it took for the first and second interviews to occur;

(b) The insignificance of an inadmissible briefing that occurred on the side of the road;

(c) The many findings by the respondent the applicants work practices were not professional or competent;

(d) The contents of the affidavit sworn and filed in these proceedings by the applicant.

[30] In oral submissions Mr Gnech said that the compelling evidence to which Deputy Commissioner Pointing refers simply does not exist. He says that Deputy Commissioner Pointing is unable to negative the reasonable hypothesis that Constable O'Keefe could not recall, despite his attempts to do so, certain aspects of the conversation held some nine months earlier. I agree.

[31] In finding Matters One (a) and (b) unsubstantiated, Deputy Commissioner Pointing referred to the principles of circumstantial evidence summarised by the New South Wales Court of Criminal Appeal in R v Taouk [2005] NSWCCA 155.

[32] Deputy Commissioner Pointing does not point to any inconsistency in Constable O'Keefe's responses during the two interviews or in his affidavit. I am not able to identify any. Constable O'Keefe is consistent in maintaining that he cannot recall. Nor is Deputy Commissioner Pointing able to point to any other facts or evidence which are consistent with untruthfulness.

[33] It is most unlikely in my view, that after the time that elapsed between the conversation and the interview that Constable O'Keefe would recall everything or nothing of the conversation. Similarly, the contention by Deputy Commissioner Pointing that the memory lapse benefits Constable O'Keefe (and Constable O'Keefe may well disagree with that assessment) is insufficient in itself to support or establish untruthfulness.

[34] Untruthfulness is not the only rational inference available here. In the absence of any corroborating evidence, memory lapse is at least as likely.

[35] I am not satisfied to the required standard that Constable O'Keefe was untruthful when he said that he could not recall certain aspects of his conversation with Sergeant Cowan.

1. The decision of Deputy Commissioner Brett Pointing that Matter One (c) (untruthfulness) was substantiated against Christopher O'Keefe, and that it amounted to misconduct is set aside;
2. It is determined that Matter One (c) is not substantiated;
3. The order that the progression of Christopher O'Keefe from Constable 1.5 to Senior Constable 2.1 be deferred to 31 May 2017 is set aside.

[1] Review submissions on behalf of the applicant, [10].

[2] Review submissions on behalf of the applicant, [29].

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

[4] Unreported Misconduct Tribunal Appeal 6 of 1991.

[5] Unreported Misconduct Tribunal Appeal 1 of 2007.

[6] [2011] QCAT 529, [51] - [54].

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

[12] [2000] QCA 501; [2001] 2 Qd R 235, 257.

[22] Respondent's outline of submissions, [8].

[23] Review submissions on behalf of the applicant, [30].