A Brisbane barrister and police legal officer will face disciplinary action after losing an appeal against a finding of improper conduct in relation to the witnessing of an affidavit.
Alicia Thomas – who is also a lecturer in ethics – lost an appeal in the Queensland Industrial Relations Commission (QIRC) last week against a disciplinary decision made by Queensland Police Service (QPS).
In February, QPS proposed disciplinary action after it substantiated an allegation that on 30 January 2024 her “conduct in an official capacity was improper in that [she] instructed and/or permitted an unqualified person to witness an affidavit which was submitted to the Federal Circuit Court in support of an application for a Telephone Inception Warrant”.
Under Section 91(1)(h) of the Public Sector Act 2022 (Qld), QPS found Ms Thomas’ conduct “contravened, without a reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action”, after deciding the conduct did not reach the threshold to be classified as misconduct.
That decision was confirmed the QIRC by Industrial Commissioner Pidgeon, who in a 23-page decision delivered last Tuesday, explained the circumstances which led to the charge.
At Brisbane’s Crime and Intelligence Legal Services division, Ms Thomas had taken a Detective Senior Constable (DSC), who was completing his PLT placement, to the office of a Detective Inspector, who signed and affirmed two affidavits she had prepared.
Ms Thomas had then instructed the DSC to sign the affidavits as a witness and to rule out “Justice of the Peace” under his name, indicating he was a “Lawyer”.
She had been aware that the DSC was not a lawyer and consequently was not qualified to witness the affidavit under the Oaths Act 1867 (Qld).
The following day, the affidavits were presented to the Federal Circuit Court and three warrants were issued.
On 19 April last year, it was identified that the DSC had inappropriately witnessed the two affidavits, casting doubt on the lawfulness of the warrants.
In February this year, QPS advised Ms Thomas it had substantiated the allegation, saying that her actions were “careless and incompetent and failed to comply with your obligation to ensure diligence in public administration”.
That month, Ms Thomas filed a Notice of Appeal arguing it was not open to the decision-maker to be reasonably satisfied of the substantiated disciplinary finding, or that the conduct amounted to a ground of discipline under the Act.
She also argued that the decision-maker failed to consider relevant evidence and placed undue weight on certain evidence; and that they erred in finding the allegation was substantiated.
In her submissions, Ms Thomas pointed to her own evidence that at the time of the conduct, “I was thinking steps ahead with other applications, I just wasn’t thinking. Um, it’s not as if there weren’t other lawyers in the office. There is no explanation for it. I just wasn’t thinking.”
She also pointed to her response when she asked by QPS what would have happened if the DSC had questioned his qualifications to strike out the words ‘Justice of the Peace’ at the time: “I would’ve realised I was being a f***ing idiot … and I would’ve apologised to (the Detective Inspector) and um, would’ve gone straight back to the office and got somebody else. If no one else was there, I would’ve rung the manager and said, do you mind if I witness it?.”
She submitted the decision-maker ignored evidence supporting her credibility, such as her holding a practising certificate when not required to as a legal officer for the Queensland public service; having no previous disciplinary proceedings or complaints; and teaching PLT ethics workshops at the College of Law.
She also submitted it was unfair and unreasonable for the decision-maker to fail to inquire as to the significance of the likelihood that the evidence collected under the warrant would be admissible.
QPS submitted Ms Thomas was afforded “an abundance” of procedural fairness, and that she had not produced any evidence of an “intervening or emergent factor excusing the conduct”.
Further, it submitted that “even on [Ms Thomas’] own version of events, the conduct occurred as a result of the lack of care and not thinking”.
It said a lack of disciplinary history did not preclude it from making a finding that the allegations against Ms Thomas were substantiated; further, her experience and obligations owed ensured that she was aware of the appropriate procedures.
QPS also submitted it was not for Ms Thomas to make a judgment on behalf of the Federal Court as to whether the improperly witnessed affidavits would prejudice the QPS case. It added the conduct jeopardised the status of an investigation into serious criminal activity.
“The respondent says that it is not up to Ms Thomas to deliberately downplay the seriousness of the potential consequences of her conduct or to declare that the conduct would not have brought the QPS into disrepute,” Commissioner Pidgeon said.
“The respondent says that Ms Thomas’ actions constitute a breach of the requirement to act skilfully with competence and diligence and submits that the conduct of presenting the affidavit to the court is, at minimum, capable of constituting recklessly misleading the court.”
Ms Thomas pointed out that she was subject to the Barristers’ Conduct Rules and under the Legal Profession Act 2007 (Qld), she was required to disclose disciplinary matters.
She said that the QPS disciplinary investigation and findings would be relied upon by the Bar Association of Queensland as part of its investigation into her fitness to hold a practising certificate.
Commissioner Pidgeon noted QPS had properly followed the show-cause process and Ms Thomas had been afforded procedural fairness.
She found it was fair and reasonable for the decision-maker to determine that on the balance of probabilities, Ms Thomas had “failed to apply the correct amount of diligence to her duties at the time”.
“There is no doubt that [the DSC] also carries some responsibility for his own signing of the document in circumstances where he was not qualified to do so,” she said.
“However, in circumstances where he was on his third day of placement in the office, and Ms Thomas was significantly the more experienced and qualified of the two, I find it was open to the decision-maker to determine that any fault on the part of [the DSC] did not outweigh the responsibility on Ms Thomas to ensure the affidavit was being signed by a qualified person.
“The issue appears to be that Ms Thomas, for reasons of multi-tasking and being focussed on other matters, simply did not turn her mind to the matter of [the DSC’s] qualifications.
“I understand that Ms Thomas believes the conduct is not sufficiently serious to warrant disciplinary action where it was an unintentional and isolated incident.
“However, where the potential ramifications of even an isolated and unintentional incident are of a serious nature, it is open to a decision-maker to find that the contravention warrants disciplinary action.”
Commissioner Pidgeon concluded the disciplinary decision was fair and reasonable, and confirmed it.
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