O'Regan v Robinson and Anor

Queensland Police Service Solicitor for the applicant

[1] MCMURDO J: Pursuant to the Judicial Review Act 1991 (Qld) the applicant seeks to review the decision of the first respondent, sitting as a member of the Misconduct Tribunal. The applicant, then an Acting Assistant Commissioner of Police, had conducted a disciplinary hearing of a misconduct charge against the second respondent, a Senior Constable. The applicant had found the charge proved. The first respondent set aside that decision and dismissed the charge.

[2] The first respondent gave extensive reasons for his decision, but the applicant says that there is a reviewable error in that he considered only part of the evidence supporting the charge. That error is characterised in the amended application alternatively as an error or law or an improper exercise of the Tribunal's power, in that the first respondent failed to take into account relevant considerations or his decision was unreasonable in the Wednesbury sense.

[3] In 2002, the second respondent was undertaking studies in the Management Development Program within the Police Service. He and others in that program had to write assignments. He had two assessments typed by Sergeant Danielle Beard, to whom he paid $150 per assignment. He says he gave her handwritten drafts to convert into a typed form, because he found the typing task "daunting", having regard to certain requirements of form and style.

[4] The complaint against him was that, in truth, Sergeant Beard was the author of all or a substantial part of the assignments, which he passed off as his own work. Pursuant to s 7.4 of the Police Service Administration Act 1990 (Qld) he was charged with misconduct in that he:

(a) colluded with Sergeant Beard to have her "complete" the assignments on his behalf for a benefit of $300;

(b) submitted the assignments, which were completed by Beard as his own work;

(c) inappropriately used Queensland Police Service's resources, namely a computer and the email system, to complete these assignments and to communicate with Beard about her work and the payment for it;

(d) by Beard's completion of the assignments, obtained the advantage of certain eligibility for promotion by false representation that the assignments were his own work.

[5] After conducting a hearing on 10 May 2004, the applicant gave a written decision on 21 May 2004, in which he concluded that one of the assignments was authored by Sergeant Beard but he was not satisfied that the other was. He found the second respondent to be guilty of misconduct, substantially in accordance with the particulars alleged in relation to that first assignment.

[6] As the evidence given to the applicant demonstrated, Sergeant Beard had provided assistance, of whatever kind, not only to the second respondent but to several other police officers who had to submit these assignments. One of them was a Senior Constable Jacques. The case against the second respondent emphasised the alleged similarities between the second respondent's assignment and others which were typed by Sergeant Beard, and in particular that of Senior Constable Jacques. The evidence included a report of a Dr Millett, who had undertaken some exercise of comparison of the language of the second respondent's assignment and Jacques' assignment, and who had expressed, at least at one stage, his strong belief that they had been written by the same author.

[7] The applicant's reasons extensively compared the assignments of the second respondent and Jacques, before expressing the conclusion that they were "constructed and written" by the same author, whom he found was Sergeant Beard. The applicant reasoned that the assignments had the same author, from the similarities which he saw between the assignments, fortified by the view of Dr Millett. He concluded that the author was Sergeant Beard from the absence, as he saw it, of substantial evidence of authorship by the second respondent or Jacques and from "the assignments [being] found on ... Beard's fileserver". Although the applicant found the use of the QPS email system as the charge had alleged, the applicant's reasons made no finding that the content of any email indicated the nature of the service provided by Beard. Nor did the applicant make any finding as to what the amount which Beard was paid indicated in that respect.

[8] The second respondent appealed to the Misconduct Tribunal. According to s 23 of the Misconduct Tribunals Act 1997 (Qld), that appeal was "by way of rehearing on the evidence ... given in the proceedings before the original decision-maker". The Tribunal could confirm the original decision, set it aside and substitute a different decision, or set it aside and remit the matter back to the decision-maker: s 26. As the first respondent correctly observed in his decision, he was required to make his own decision on the available evidence rather than to merely determine the correctness of the original decision, and he was to give appropriate weight to the view of the original decision-maker: Aldrich v Ross [2000] QCA 501; [2001] 2 Qd R 235 at 257.

[9] The first respondent conducted a hearing on 24 August 2004, in which the present applicant and the second respondent were represented by counsel. All of the material which had been before the applicant as the original decision-maker was put before this Tribunal. Written and oral submissions were made for each side. Counsel for the (present) second respondent strongly challenged the evidence of Dr Millett, and submitted that the "remaining significant piece of evidence relied upon by the respondent" was "the fact that this assignment was located on Sergeant Beard's fileserver". As I have discussed, it was only that evidence, apart from a comparison of the assignments of the second respondent and Jacques, which had been referred to in the original decision.

[10] But the (present) applicant's written argument submitted that there was a "substantial body of compelling circumstantial evidence" that Sergeant Beard had "created both assignments". That evidence was summarised as including, but not limited to, the suggested similarities between the assignments. The further circumstances outlined in that written submission were that:

(a) the appellant did not know or associate with Jacques or others who were assisted by Beard with their assignments;

(b) the assignments were typed by Beard within a day of each other;

(c) the fee charged by Beard ($150 per assignment) was "greatly in excess of a reasonable fee for simply typing and proof reading such an assignment";

(d) the email correspondence between Beard and Jacques, the appellant and others was "secretive and suggestive of [Beard] being the author of the material rather than simply typing and proof reading the assignments";

(e) the appellant provided Beard with "updates for the assignments" which was said to be "inconsistent with the claimed limited role of [Beard] in the process".

[11] The first respondent gave a written decision dated 1 October 2004. It began with an outline of the charge and the history of the matter before stating certain matters within some 12 paragraphs under the heading "The Facts". They included the fact that the appellant "did not know and had never associated with [Jacques]," that the appellant paid Beard the sum of $150 for her assistance and that "the appellant prepared a handwritten draft of his assignment in question which he delivered to Sgt Beard sometime before 16 August 2002". The said facts also included the statement that "[c]orrespondence between the appellant and Beard regarding the subject assignment itself occurred utilizing the Queensland Police Service e-mail system". There was no discussion within that or any other part of the first respondent's decision as to the content of those email communications, or emails between Beard and other officers, as to whether they had the significance which was argued by the present applicant. Nor was there any discussion as to the amount of the fee, and whether that tended to indicate that the service provided went beyond typing and proof reading.

[12] The first respondent member accepted a submission by the second respondent that there were four issues for his determination which were:

"(i) was there evidence to support an inference that there was cheating?

(ii) whether or not the Tribunal would draw that inference?

(iii) whether there is evidence of the appellant's participation in such cheating?

(iv) whether or not the Tribunal would draw such conclusion according to the requisite standard of proof?"

After stating those four issues, the first respondent wrote:

"It is common ground that the starting point for the determination of these issues is to look at the degree of similarity between the two assignments in question, that is, of the appellant and Jacques".

[13] The first respondent then undertook an extensive analysis of Dr Millett's opinion, which he ultimately rejected, holding that there was no significant similarity between the second respondent's assignment and the Jacques assignment. He said:

"To my mind, to conclude otherwise, as did the respondent, is to erroneously overstate the nature and extent of similarity or commonality between the two assignments and therefore the strength of the evidentiary basis upon which to conclude to the requisite standard that there was cheating."

The first respondent referred to some evidence that Dr Millett had retreated somewhat from his originally stated opinion, but that this had not been referred to in the applicant's written decision, and that Dr Millett had ultimately described the likelihood of cheating as being a "distance [sic] possibility".

[14] The first respondent then reasoned and concluded as follows:

"61. Given the gravity of the charge and, if proven, the potentially serious consequences for the appellant, I consider that the standard of proof in this case requires substantially more than evidence capable of an inference no greater than a distant possibility of an issue of cheating.

62. For the reasons set out above, I am of the view that the respondent erroneously overstated the nature and extent of similarity or commonality between the two assignments and therefore the strength of the evidentiary basis upon which to conclude to the requisite standard that the two assignments demonstrate cheating, in particular, by the appellant.

63. Having arrived at that view, and bearing in mind the requisite standard of proof, I could not be satisfied that there is sufficient evidence to support a finding that there was cheating, in particular, by the appellant.

64. That being the threshold issue before me for determination, it is unnecessary for me to go on and consider and make any findings in respect of any of the remaining issues.

65. If follows that I could not be satisfied according to the requisite standard of proof of any of the particulars of the charge, specifically ..."

[15] The applicant submits that the first respondent went no further than to assess one of the many circumstances upon which he relied in the Tribunal hearing. He argued that once the Tribunal was not persuaded that there was some similarity between the assignments, which signified the same authorship, the first respondent concluded that that must be the end of the matter, whereas he was still bound to consider the other evidence and to determine whether upon such other circumstances as were proved, the complaint was established.

[16] The second respondent argues that the first respondent did consider that other evidence or at least, that it is not sufficiently clear that he overlooked it.

[17] I am conscious of the risk of undertaking too close an analysis of the expressed reasons of a Tribunal such as this, and of placing undue demands upon the members who do its work. Nevertheless, it appears from these reasons that the first respondent did not consider the applicant's case beyond the alleged circumstance of the similarity of the assignments. As I have said, there was no discussion as to the significance or otherwise of the amount of the fee and nor was there discussion as to the content of the email correspondence as to whether that signified the alleged misconduct. Nor was there discussion as to the significance or otherwise of a number of police officers choosing to have their typing done by a Sergeant of police.

[18] The focus only upon the suggested similarity of the work was probably due to the way in which the present applicant had made his decision. The matters which he says the first respondent overlooked were not expressly relied upon by him in his own decision. But he reached his conclusion on the basis of a perceived similarity between the works, from which (in his view at least) it was unnecessary for him to consider other circumstances.

[19] It was, of course, not unlikely that Beard was the author of all or a substantial part of these assignments although they were not so similar on their face as to be obviously written by the one person. The other circumstances relied upon were matters of substance and required a consideration which was to be explained by the Tribunal's reasons. I am unable to accept the second respondent's argument that such a consideration is recorded within the second and third lines of para 63 of the Tribunal's reasons, as set out above.

[20] The first respondent thereby limited his determination to the question of whether there was, upon an objective view of the two assignments, a similarity which evidenced a common authorship. By not addressing the balance of the case against the second respondent he effectively failed to determine the question raised for his decision. That error could be characterised alternatively as asking the wrong question or as ignoring relevant material which was required to be considered. In either way, it involved an error of law in the exercise of the Tribunal's power: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351. The applicant has established a ground for review.

[21] The decision of the first respondent made on 1 October 2004 will be set aside and the matter will be remitted back to a differently constituted Misconduct Tribunal to be determined according to law. I shall hear the parties as to costs.