QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: APPLICATION NO/S: MATTER TYPE: Crime and Corruption Commission v Assistant Commissioner Codd & Anor [2019] QCAT 7 CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER BRIAN CODD (first respondent) DEAN JAMES GODFREY (second respondent) OCR101-17 Occupational regulation matters DELIVERED ON: 22 January 2019 HEARING DATE: 9 May 2018 HEARD AT: DECISION OF: ORDERS: Brisbane Member Fitzpatrick 1. The decision of Assistant Commissioner Brian Codd under review is confirmed. 2. The Applicant is to notify the Respondents and the Tribunal by 29 January 2019 if it requires a determination of an appropriate sanction and if so required, the First and Second Respondents are to file and serve submissions by 5 February 2019. 3. The Second Respondent to file and serve any submissions in relation to costs by 29 January 2019. 4. The Applicant and First Respondent to file and serve any submissions in relation to costs by 5 February 2019. CATCHWORDS: POLICE INTERNAL ADMINISTRATION DISCIPLINE AND DISMISSAL FOR MISCONDUCT QUEENSLAND where police officer provided a watch-house photograph to a member of the public whether provision of the photograph was for a justifiable operational reason consistent with the functions of the police service whether provision of the photograph was improper safety considerations Crime and Corruption Act 2001 (Qld), s 219G, s 219H
2 Police Service Administration Act 1990 (Qld), s 2.3, s 4.9, s 10.1(c), s 10.2 Police Service (Discipline) Regulations 1990 (Qld), s 9(1)(f) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 APPEARANCES & REPRESENTATION: Applicant: First Respondent: Second Respondent: Aldrich v Ross [2001] 2 Qd R 235 Briginshaw v Briginshaw (1938) CLR 336 Heffernan v Harris ex parte Heffernan [1992] QCA 412 Jones v Dunkel (1959) 101 CLR 298 Lee v Crime and Corruption Commission [2014] QCATA 326 Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348 Res 1 v Medical Board of Queensland [2008] QCA 152 D Caughlin of the Crime and Corruption Commission B Wadley of the Queensland Police Service C Hartigan, instructed by Gilshenan and Luton Solicitors REASONS FOR DECISION [1] This is an application for review of a decision by the First Respondent that a charge of misconduct against the Second Respondent was not substantiated. That decision was made on 10 May 2017. [2] By Order made 12 June 2017, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) publication of the names and/or identifying particulars of all third parties is prohibited. Accordingly, third parties and their addresses have been changed to random letters and use of the words an address. [3] The role of the Tribunal is to arrive at the preferable decision after a fresh hearing on the merits, by reference to the original evidence before the decision maker and any new evidence admitted with leave of the Tribunal. 1 The standard of proof is reasonable satisfaction on the balance of probabilities. 2 [4] I have considered all material filed in the matter which was the original evidence in the disciplinary proceeding before the First Respondent. I have also considered new evidence admitted by leave of the Tribunal on 21 November 2017. The new evidence is an Objection to Bail affidavit sworn by the Second Respondent on 28 1 Queensland Civil and Administrative Tribunal Act 2009, s 20; Crime and Corruption Act 2001 (Qld), s 219G, s 219H. Weight may be given to the First Respondent s views: Aldrich v Ross [2001] 2 Qd R 235, [41]-[45]. 2 Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.
3 May 2014 and an unsworn Objection to Bail affidavit of the Second Respondent drafted on 17 May 2014, referred to by the Applicant as the 16 May 2014 affidavit. [5] In addition to the written submissions filed in this matter, oral submissions were made before me by representatives of all parties on 9 May 2018. Background Facts [6] Following a direction of the Tribunal, a jointly agreed chronology was filed by the parties on 4 September 2017. [7] By reference to the chronology, I find that the following facts and events occurred: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) 12 May 2014 - an Intelligence report relating to AD was entered into QPrime; 13 May 2014 - AD reported his motorcycle stolen from an address; 16 May 2014 - AD s motorcycle was located in FP s possession; 17 May 2014 - FP was arrested and charged; 17 May 2014 - QPrime Activity between 01.25 hours and 03.45 hours when the Second Respondent accessed various records relating to FP and AD, including the above Intelligence report, in accordance with his duties as the corroborating officer for the arrest of FP; 17 May 2014 - a watch-house photo was taken of FP; 19 May 2014 - AD attended the Police Station and speaks with the Second Respondent; 19 May 2014 - QPrime Activity between 09.38 and 10.36 hours, when the Second Respondent accessed various records relating to FP and AD and saved FP s watch-house photo to a computer desktop; 19 May 2014 - the Second Respondent s official police diary entry records him meeting with AD; 28 June 2014 - another police officer attended an alarm activation and spoke with a security officer observed to be in possession of FP s watch-house photo; 24 July 2015 - AD s statement was given in relation to his attendance at the Police Station, meeting with the Second Respondent and obtaining a photo of FP; 7 October 2015 a letter was sent from the Office of the Director of Public Prosecutions to the Crime and Corruption Commission (CCC); (m) 31 March 2016 Ethical Standards Command interview with AD; (n) (o) 2 August 2016 Ethical Standards investigation report; 6 December 2016 - discipline hearing notice;
4 (p) (q) (r) (s) 24 January 2017 - submissions of Second Respondent; 10 May 2017 - notice of formal findings by the First Respondent; 10 May 2017 - findings and reasons of First Respondent; 29 May 2017 - CCC filed the current proceedings to review the First Respondent s decision. [8] The Applicant has provided some further matters for consideration. No challenge is made to these matters. Except as noted, I find that the matters are as asserted or occurred as alleged. (a) The overall grading for the report entered on 12 May 2014 was A (source evaluation was determined to be completely reliable ) 2 (intelligence evaluation was determined as a probably true report ). The intelligence report stated, amongst other things, that AD was a named motorcycle gang associate and was in possession of the motor cycle gang s branded clothing and other items. 3 I make no finding in relation to the truth of the allegation about AD. (b) On 17 May 2014, the Second Respondent accessed the intelligence report on AD that stated AD was a CMG associate, who was: In possession of a.2-2 firearm on his boat...the firearm was sighted in 2012...further information that AD is a CMG associate and is in possession of CMG branded clothing and other items. 4 I make no finding in relation to the truth of the contents of the report. (c) A bail application in relation to FP was heard on 19 May 2014. The Second Respondent filed with the Magistrates Court, the 16 May 2014 affidavit. Relevantly, the Second Respondent deposed that: In relation to his current offending, the Defendant was found in possession of a stolen Harley Davidson on 16 May 2014, stolen from an alleged member of the Criminal Motorcycle Gang. The Court might be reminded of the 1996 murder of a Logan man resulting in the arrest of 18 members of the Finks Outlaw Motorcycle Gang over the theft of a motorcycle belonging to a Finks OMCG member... 5 The Defendant s relatives...are aware the motorcycle was stolen from a Criminal Motorcycle Gang Member and are in further fear of retribution as a result of the Defendant s offending... 6 I make no finding in relation to the truth of the contents of the affidavit. 3 QPrime intelligence report 12 May 2014, 287-289. 4 Second Respondent s transcript of interview, 27 July 2016, 94-95, lines 921-974. 5 Unsworn objection to Bail affidavit of the Second Respondent, dated 17 May 2014, [5]. 6 Unsworn objection to Bail affidavit of the Second Respondent, dated 17 May 2014, [7].
5 (d) (e) (f) (g) (h) On 19 May 2014, the Second Respondent spoke with AD. During that conversation, the Second Respondent discussed with AD his concerns about either FP or others returning to again steal the motorcycle or other property belonging to AD. As a result of that conversation, the Second Respondent downloaded from QPrime, and printed, a copy of the watch-house photograph of FP and gave it to AD who stated that he wished to provide a copy of the photograph to security personnel working at the relevant address. 7 AD has stated that he asked for the photo to provide to security guards in the event they saw FP in the area. The Second Respondent had an equivocal recollection as to who initiated the provision of the photograph but did say he offered the photograph. 8 When asked his reason for providing the photograph to AD, the Second Respondent stated: He [AD] was a man of senior years...came across as...quite a decent...forthright type of person, seemed intelligent, sensible...i thought it would be prudent then to provide him a photo of FP...and encourage him to be vigilant, in the lookout for FP... returning after he made bail... 9 (i) FP was granted conditional bail on 20 May 2014 10 and was subsequently rearrested for breaching bail conditions. The Second Respondent filed with the Magistrates Court the 28 May 2014 affidavit, in which he deposed: In relation to his current offending, the Defendant was found in possession of a stolen Harley Davidson on 16 May 2014, stolen from an alleged member of the Criminal Motorcycle Gang... 11 The Defendant s relatives...are aware the motorcycle was stolen from a Criminal Motorcycle Gang member and are in further fear of retribution as a result of the Defendant s offending... 12 I make no finding as to the truth of the contents of the affidavit. (j) On 28 June 2014, another police officer in discussion with a security person in an unrelated matter observed the mugshot of FP and was told words to the effect it was the guy that stole AD s bike ; further AD gave it to me to keep an eye out for the guy who stole his motorcycle. 13 7 AD transcript of interview, 31 March 2016, 46, line 219. 8 Second Respondent s transcript of interview, 27 July 2016, 107, lines 1369-1374. 9 Second Respondent s transcript of interview, 27 July 2016, 72-73, lines 185-201. 10 Sworn objection to bail affidavit of Second Respondent dated 28 May 2014, [8]. 11 Sworn objection to bail affidavit of Second Respondent dated 28 May 2014, [5]. 12 Sworn objection to bail affidavit of Second Respondent dated 28 May 2014, [7]. 13 Second Respondent s statement, 30 March 2015, 295, [18]-[19].
6 (k) The other police officer stated that he had concerns as he was aware AD was believed to have Criminal Motorcycle Gang (CMG) connections and was actively looking for the suspect. 14 [9] The Applicant submits that the Tribunal should find the charge substantiated and misconduct proved. [10] The Applicant submits that the Tribunal will be required to make its own findings as to whether: (a) (b) (c) AD requested the photograph or the Second Respondent offered the photograph to AD on his own initiative; In deciding to give the photograph to AD, the Second Respondent should have had regard to the intelligence submission alleging that AD was a member of an Outlawed Motorcycle Gang (OMCG); There was no proper police purpose attached to the Second Respondent handing the photograph of FP to AD. [11] The Applicant submits that it is not contended the photograph was provided to AD for any benefit or nefarious purpose. The Applicant contends that the impropriety was in providing the photograph without giving due regard to all the surrounding circumstances including considerations of the privacy and safety of all persons, in particular, FP. [12] To resolve the first question, I find that in light of the Second Respondent s uncertainty on the point, the statement of AD should be preferred. I find that AD requested the photograph, rather than the Second Respondent volunteering the photograph. In the end, I do not think that a great deal turns on the point. The important fact is that the Second Respondent agrees he provided the photograph to AD. [13] The other matters which the Applicant has asked, I determine, require more detailed analysis. Charge [14] The charge against the Second Respondent was: Matter 1 That on the 19 th day of May 2014 at a location your conduct was improper in that you: (a) utilised [the QPS facility] QPrime to print a copy of a watch-house photograph of FP; and (b) provided a copy of this photograph to AD; (Sections 1.4 and 10.1 of the Police Service Administration Act 1990; s9(1)(f) of the Police Service (Discipline) Regulations 1990; s16 (Improper use of 14 Second Respondent s statement, 30 March 2015, 296, [24].
7 QPS information) Standard of Practice Professional Conduct; s4.13.5 (User responsibilities) Information Management Manual) Further and better particulars Investigations have identified that: In relation to Matter 1(a) (i) On 13 May 2014, AD reported his Harley Davidson motorcycle stolen from...; (ii) The motorcycle was located, on 16 May 2014, in the possession of FP who was charged in relation to his possession of the vehicle; (iii) You were the corroborating officer in relation to the investigation and arrest of FP; (iv) You spoke with AD at a police station on 19 May 2014; and (v) You downloaded from QPrime and printed a copy of the watchhouse photograph of FP, while interacting with AD. In relation to Matter 1(b) (i) You discussed with AD his concerns about FP or others returning to...to again steal the motorcycle or other property; (ii) AD asked you for a copy of the photograph of FP; and (iii) You provided AD with a copy of the watch-house photograph of FP with a view to AD providing same to security personnel working at... Findings of the First Respondent [15] In the First Respondent s 10 May 2017 decision, it was found to the First Respondent s reasonable satisfaction that Matter 1 is not substantiated and the conduct does not amount to misconduct. The reasons for coming to this conclusion are: (a) (b) (c) Access to the photograph and the supply of it to AD, a victim of theft, appears to have been for a police purpose consistent with the Second Respondent s role; There is no evidence of any benefit gained or other nefarious purpose related to the provision of the image (other than unsubstantiated inferences put to you in an interview and to AD, which were rejected); and Service policy provides for the dissemination of images for operational purposes. First Respondent s submissions
8 [16] The First Respondent has taken the approach of providing assistance to the Tribunal where appropriate. The First Respondent has drawn the Tribunal s attention to Aldrich v Ross. 15 Issues [17] The relevant issues in this matter are: (a) (b) (c) (d) Does the relevant legislation provide for dissemination of photographs such as FP s watch-house photograph to members of the public? Was provision of the photograph for a justifiable operational purpose? Was provision of the photograph improper conduct? Do the Applicant s complaints of improper conduct fall outside the matters which can be considered by this Tribunal? Legislative framework for dissemination of photographs [18] The Applicant does not dispute that the relevant legislation and police manuals provide for the dissemination of images for operational purposes. The Applicant contends that the Second Respondent did not provide the photograph to AD for operational purposes and says that the Second Respondent should have completed a form to seek authorisation from the Commissioner to do so, pursuant to s 10.2 of the Police Service Administration Act 1990 (Qld) ( PSA Act ). [19] The Second Respondent traces the relevant provisions which he submits enabled him to lawfully provide the photograph to AD, as follows: (i) S10.1(c) of the PSA Act permits the disclosure of information that is authorised or permitted under the Act or another Act; (ii) S4.9 of the PSA Act allows the Commissioner to issue written directions in discharging his prescribed responsibility; (iii) (iv) the Operation Procedures Manual (OPM) is issued pursuant to the provisions of s4.9 of the PSA Act; the OPM at 1.9.12 authorises the disclosure of information by Police seeking public assistance and in relation to images, where there is a justifiable operational reason for the release. An operational reason is to be consistent with the functions of the Police Service pursuant to s2.3 of the PSA Act and have a demonstrated legitimate or valid reason for such release; (v) s16 of the QPS Standard of Practice also allows release of information if it is for an official purpose related to the performance of duty; (vi) the form which the applicant asserts should have been completed seeking the Commissioner s permission for release of material, is a generic form relevant to use by members of the public, where the Commissioner of Police has not otherwise addressed the provision of 15 [2001] 2 QdR 235.
9 information. In this case release of the photograph is authorised by the OPM. [20] I accept the Second Respondent s submissions and find that the Second Respondent was able to lawfully provide the photograph to AD, subject to the provisos in the OPM being met. I agree with the Second Respondent that it was not necessary for the form referred to by the Applicant to be submitted by the Second Respondent because release of the photograph is authorised by the OPM. Was provision of the photograph for a justifiable operational purpose? [21] The evidence of the Second Respondent as to the reason he provided the photograph to AD is: (a) (b) (c) (d) To enable him to identify FP should FP return to the venue to monitor the vehicles or attempt to steal any vehicle; 16 Because he thought AD could assist in solving further crime likely to be committed by FP; 17 He considered AD was fit to be a potential informant/witness to any further offending by FP; 18 and He considered the disclosure of the information was reasonably necessary for the prevention and detection of further offences by FP. 19 [22] The Second Respondent s evidence is that he was aware of FP s criminal history and he thought it was likely that FP would breach his Bail conditions and return to the crime scene to again steal AD s motorcycle or another vehicle. The Second Respondent knew that FP had a buyer for the motorcycle prior to it being recovered. 20 [23] I accept that all those matters as legitimate reasons for the Second Respondent to provide a photograph of FP to AD, to enable AD to keep a watch out for FP. [24] There is no reason for me to disbelieve the Second Respondent s evidence. He is a senior and experienced police officer. The Second Respondent was sworn into the Queensland Police Service on 29 May 1992. He commenced in the CIB in 1994 and remains in the CIB. [25] I note that during the interview with the Second Respondent, the interviewer commented that the Second Respondent was: coming across as very truthful and open and honest. 21 [26] By reference to s 2.3 of the PSA Act I find that the reasons given for providing the photograph are justifiable operational reasons consistent with the functions of the 16 Submissions of Second Respondent in Disciplinary hearing, 6. 17 Ibid 13. 18 Ibid 19. 19 Ibid 18. 20 Submissions of the Second Respondent to the Disciplinary Hearing, 5. 21 Interview, 40, line 1342.
10 Police Service. 22 That is, to prevent further criminal offences, to detect offenders and to protect the community from the actions of criminal offenders. [27] As a result, I reject the submissions of the Applicant that the purpose for which the Second Respondent provided the photograph did not constitute an operational purpose. Was provision of the photograph nevertheless improper? [28] Despite finding that provision of the photograph was for an operational reason consistent with the functions of the Police Service, the question remains whether provision of the photograph was nevertheless improper for other reasons asserted by the Applicant, that is: (a) (b) (c) The Second Respondent did not have proper regard to the information contained within the intelligence report that identified AD as an associate of an OMCG, which information he had, on two separate occasions, deposed to in affidavit material in objections to FP s Bail; The Second Respondent, in accessing for the purpose of release and then releasing the photograph, failed to have sufficient regard to safety considerations which should have been obvious when regard was had to the content of the intelligence report; and An inference should be drawn that there was a live risk to FP to which the Second Respondent had turned his mind and put before the Court in the Objection to Bail affidavit of 16 May 2014. Matters alleged do not form part of the charge [29] This proceeding relates to a matter of alleged misconduct on the part of the Second Respondent. Misconduct is defined to mean conduct that: (a) is disgraceful, improper or unbecoming of an officer; or (b) shows unfitness to be or continue to be an officer; or (c) does not meet the standard of conduct the community reasonably expects of a Police Officer. 23 [30] The Second Respondent submits that the term misconduct is broad and as noted by Mr Thomas QC, in Lee v Crime and Corruption Commission and Anor: 24 the definition is so wide that there should be particulars to show which part of the definition is relied on, and of the conduct which is said to constitute it. [31] The Direction to attend a disciplinary hearing refers to improper conduct as the part of the definition of misconduct relied upon. 22 Heffernan v Harris ex parte Heffernan [1992] QCA 412. 23 PSA Act, s 1.4. 24 [2014] QCATA 326, [73].
11 [32] The Second Respondent argues that the matters raised by the Applicant did not form part of the particulars of the charge and therefore need not be answered. On the Second Respondent s case, the inquiry for the Tribunal is did the Second Respondent s conduct, as particularised, amount to misconduct when he accessed QPrime, printed the photograph and provided it to AD, because it was done without an official purpose? [33] The Second Respondent says that the Applicant s allegations are not particularised in the charge as forming part of the conduct relied on to allege the misconduct, accordingly, they fall outside the matters to be considered by the Tribunal. That is, the Tribunal must only consider the charges as brought. 25 It may not consider evidence which is not relevant to the charges as framed by the regulatory body or person. [34] The Second Respondent also asserts that because of the wording in s 10.1(c) of the PSA Act, once an operational purpose for provision of the photograph is established there is no need for any further exploration of impropriety. [35] To deal with the Second Respondent s first contention, it is true that the allegations by the Applicant are not expressly set out as particulars of improper conduct. [36] Dr Forbes in his text Justice in Tribunals writes that a person accused of misconduct is entitled to know in advance not only the rule allegedly infringed, but also how it was infringed. Dr Forbes says that a charge is one thing, particulars are another. A charge identifies the legal duty or prohibition, while particulars set out the facts that are said to call for the orders proposed. Particulars put a party on his guard as to the case he has to meet and to enable him to prepare for the hearing. 26 [37] The alleged omissions of the Second Respondent did not form part of the charge and particulars at the time the Second Respondent was asked to make his response. [38] The Applicant argues that the obligations it relies on are contained in the legislation referred to in the charge, especially s1 6 of the QPS Standard of Practice which requires: a level of accountability and trust that the information will only be used for official purposes. [39] I do not think reference in the charge to the underpinning legislation is sufficiently clear for it to be beyond doubt that the Second Respondent is being asked to justify why he should not suffer a penalty because he failed to make a proper assessment of a risk to safety. [40] I conclude as submitted by the Second Respondent that it is beyond the scope of this review to consider matters not particularised in the original charge. I must review the decision of the First Respondent by reference to the charge and its particulars, the material before the First Respondent and the Objection to bail affidavits. [41] Despite the Second Respondent s contention that the scope of the review is limited to matters particularised in the charge, the Second Respondent has made submissions in relation to the matters raised by the Applicant. I consider it 25 Lee v Crime and Corruption Commission [2014] QCATA 326, [9]. 26 JRS Forbes, Justice in Tribunals, Third Edition, The Federation Press, 2010, 140-1.
12 appropriate to address those submissions along with the Applicant s submissions. I have taken this course in the event that I am wrong in the conclusion I have reached and because the same end point is reached. [42] I accept the submission of the Second Respondent that the type of review proceedings we are here concerned with is focused on the material before the First Respondent. This review is not a hearing de novo. There is no opportunity to resolve conflicts in the evidence through the giving of evidence by witnesses and crossexamination. The Applicant bears the onus of proving that the original decision was wrong. 27 [43] The Applicant asserts that it was a risk to the safety of FP which required the Second Respondent to give weight to the intelligence report and to make enquiries as to its veracity before releasing the photograph. However, I cannot determine the extent of risk to safety alleged by the Applicant. I have no real evidence that AD was an associate of an OMCG. There is merely an allegation that he was. I cannot determine that any reprisal against FP was likely on the evidence. [44] The Applicant asserts that the Objection to bail affidavits demonstrate the Second Respondent was aware of a risk to the safety of FP and the risk of reprisal against FP, yet he nevertheless provided a photograph of FP to AD. The relevant parts of the affidavits are plainly speculation and hearsay. In the circumstances, the affidavits can be accorded little weight. As a general observation, I think that how matters are put to a Magistrate on a bail application involving an apparently recalcitrant criminal are different to the considerations attending a face to face meeting with AD and the exercise of judgment as to the prudence of providing a photograph. [45] The Applicant asks that I draw an inference that, at the time the Second Respondent provided AD with the photograph, the Second Respondent was aware of a risk to the safety of FP, because of the contents of the Objection to bail affidavits. That is not an ineluctable conclusion from the material before me. The Second Respondent submits that has never denied that AD was referred to in the intelligence report as an alleged associate of an OMCG, but the intelligence report must be balanced with the assessment made by him when he met AD in person. The Second Respondent s transcript of interview reveals that he considered AD s age, presentation as an intelligent man, that he was employed and that he had no criminal history, before providing the photograph to AD. The Second Respondent checked AD s status before providing the photograph. I do not consider it unreasonable for a police officer of the Second Respondent s experience and seniority to have made the judgment that he did. [46] The Applicant submits that I should draw a Jones v Dunkel 28 inference against the Second Respondent because he has not sought to adduce evidence which explains the conflict between the Objection to bail affidavits and his conduct in providing AD the photograph. The Applicant says that I cannot speculate as to what evidence the Second Respondent may have given in relation to the apparent conflict. It is not necessary for me to speculate. The Second Respondent has given a full and honest 27 Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348, [47] [76]. 28 (1959) 101 CLR 298.
13 account of his conduct which addresses why he provided the photograph. I do not consider there is any basis to draw the inference suggested. [47] In all, I accept the Second Respondent s submission that the decision of the First Respondent should not be overturned because of further allegations of omissions on his part, which were not put as particulars of the charge of improper conduct. In any event, I am unable on the evidence before me to conclude that the Second Respondent acted improperly by failing to give sufficient weight to the intelligence report and a risk to safety, said to be obvious from the report. Is a finding of an operational purpose all that is necessary to conclude there has been no improper conduct? [48] The Applicant submits that the First Respondent has given insufficient reasons to determine what consideration was given to the propriety of the Second Respondent s conduct and that the First Respondent appears to have stopped his consideration once a police purpose was identified. [49] The Applicant submits that what is required is a balancing of competing considerations, such as safety, prejudice to other investigations, protection of methodologies and prejudice to a fair trial. [50] I accept that submission. However, no particulars relating to any of those considerations accompanies the charge. Nor is there any evidence before me to which I can attribute any weight which suggests that those elements were present on the facts of this matter. [51] On the contrary, the material discloses that the Second Respondent provided the photograph to AD for a justifiable operational purpose based on legitimate reasons after determining that AD had no criminal history and otherwise appeared to be a reliable person. [52] The Second Respondent has submitted that it is sufficient for an operational purpose to be identified and that there is no need for an artificial overlay of propriety. The Second Respondent says that is consistent with the wording of s 10.1 of the PSA Act. The proposition is unattractive. The section is directed to the commission of an offence through improper disclosure of information. I accept that it may be the end of an enquiry as to whether an offence has been committed if it is found that disclosure is authorised or permitted, but I do not consider that it is the end of the enquiry in relation to misconduct. It is possible that the particulars of a charge of improper conduct in disclosing information may suggest a standard of conduct which falls below that reasonably expected of a police officer, although no offence is committed. That is not the case here for the reasons set out in this decision. Conclusion [53] For the reasons set out in this decision, the decision of the First Respondent is confirmed. Sanction and Costs [54] Because of my decision there is no reason to determine an appropriate sanction. Only the Applicant has made submissions in relation to sanction. If for completeness
14 the Applicant requires me to address this point on the basis that I am wrong in my conclusion, the Applicant should notify the Respondents and the Tribunal by 29 January 2019. I will then require submissions from the First and Second Respondents to be filed and served by 5 February 2019. [55] The Second Respondent has sought his costs of the proceeding. I order that the Second Respondent file and serve any submissions in relation to costs by 29 January 2019. The Applicant and First Respondent are to file any submissions in relation to costs by 5 February 2019.