Not Even Police Officers are Above the Law – Police Misconduct Laws

In July 2016 two uniformed police officers on the Sunshine Coast intercepted a vehicle after it allegedly performed an illegal U-turn.  The driver of the vehicle was Kevin Perry, a now retired Sergeant of the Victorian Police, who was holidaying with his family.  After some conversations occur between Mr Perry and the two police officers, two further plain clothes police officers, who are officers of a more senior rank, arrive and discuss whether or not to subject Mr Perry to a breath test.

As a result of these discussions, Mr Perry, despite already making admissions to having consumed alcohol, is not subjected to a breath test.  However, the entire incident was captured on one of the uniformed officer’s body camera footage and as a result of it being recently released all four officers were charged with ‘misconduct in public office’.

The offence of ‘misconduct in public office’

The law in Queensland makes it an offence for a public officer, including a police officer, to release information gained as a result of his or her office, or to perform or fail to perform a function of office, or to make an omission in abuse of the authority of office.  To be found guilty, it must be proven that the act done by the public officer was done with the intention of dishonestly gaining a benefit for themselves or another person, or dishonestly causing a detriment to another person.

This captures a wide range of conduct and whilst the incident involving the four police officers is a rare example of this offence there are other examples which are much more common.  In our experience, more common examples which involve police officers are where a police officer has accessed the personal information of an individual, available to the police, outside the course of their job.  For example, a police officer may undertake a search of an ex-partner or current partner for reasons not associated with their job as a police officer, such as curiosity.

The body camera footage

Going back to the incident involving the four police officers, the camera recording captured by one of the police officers was recently released.  This is easily available on the internet but a transcript of the conversation that occurs is as below:

Officer 1: “My partner has just said you’ve had a drink”.
Mr Perry: “I literally just came out of the pub. Finished off a glass of red”.
Officer 1: “How much would you’ve had tonight?”
Mr Perry: “I’m not sure. I’ve probably had a couple of glasses of red.  Is there any way you could just let us park and I’ll catch a cab home?”
Officer 1: “Unfortunately, I can’t do that. But what I am going to do, to be fair I’m going to give you 20 minutes.”
Mr Perry: “I’ve got my kids… we’re up here on holidays.”
(Officer 1 then calls for additional police to attend the scene): “Can we get a second unit just to assist us with this intercept?”
Officer 1 again speaks to Mr Perry: “It’s kind of putting us in a position.”

At this point, the two other officers, Detective Senior Constable Naomi Shearer and Plain Clothes Senior Constable Rohan Peter Evans, arrive on the scene.  These two officers are more senior than the first two officers who were dealing with Mr Perry.

Officers Shearer and Evans speak with the first two officers, before Officer Shearer introduces herself to Mr Perry.

Officer Shearer: “Hi I’m Naomi. How are you?”
Mr Perry: “I’m happy to get a cab home”

Officer Shearer then speaks with the original officers.

Officer Shearer to Officer 1: “What did he go?”.

Officer 1: “He hasn’t blown yet”.
Officer Shearer: “He hasn’t blown at all!?”.
Officer 1: “He pulled his badge on me and said I’m a Sergeant in Vic Police can you let me go.”
Officer Shearer: “I didn’t realise there hadn’t been a breath test done at all yet.”
Officer 1: “No. No.”
Officer Shearer: “So I reckon… It’s really up to you!”
Officer 1: “But what about if he brags?”.
Officer Shearer: “He’s not going to tell anyone. He’s not going to tell a fucking soul.  It’s really your call. I wouldn’t. He wouldn’t, but it’s up to you if you would.  I reckon if you tell him to park up.”
Officer Evans: “Reaffirm that it never happened.”Officer Shearer: “And reaffirm that it never happened.”
Officer Shearer to Mr Perry: “Don’t you go and tell anyone either.”
Mr Perry: “Oh hell no.”
Officer 1 to Officer 2: “You still filming?”
Officer 2: “I am. It will be deleted. I’ll delete it – it needs to be”.

Rather than deleting the footage, Officers 1 and 2 later reported the matter to their superiors and an investigation into the matter was commenced.  Based on the transcript above, it is alleged that the more senior officers (Shearer and Evans) pressured the two other officers not to subject Mr Perry to a breath test.

The investigation

After an internal investigation, both Detective Senior Constable Naomi Shearer and Plain Clothes Senior Constable Rohan Peter Evans were charged and found guilty of the offence of misconduct in a public office. They were each given fines and both were allowed to keep their jobs in the Queensland Police Service.

The Crime and Corruption Commission (CCC) disputed the Queensland Police Service’s decision to allow Detective Shearer to keep her job and has referred the matter to the Queensland Civil and Administrative Tribunal (QCAT).  These proceedings are still ongoing.

If you’re needing advice or assistance with legal matters, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.

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