Benjamin Stewart Shannon v Queensland Police Service [2022] QCAT 158

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Benjamin Stewart Shannon v Queensland Police Service [2022] QCAT 158 PARTIES: BENJAMIN STEWART SHANNON (applicant) v ASSISTANT COMMISSIONER OF POLICE – QUEENSLAND POLICE SERVICE (respondent) APPLICATION NO/S: OCR101-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 3 May 2022 HEARING DATE: 11 April 2022 HEARD AT: Brisbane DECISION OF: Member Burson ORDERS: The sanction of dismissal from the Queensland Police Service dated 15 March 2021 is confirmed. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where officer did not investigate wife for drive under the influence while on duty – where officer placed alcometer in training mode – dismissal Police Service Administration Act 1990 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Quinn v Law Institute of Victoria [2007] VSCA 122 Austin v Deputy Commissioner Peter Martin [2018] QCAT 120 Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 354 Price v Deputy Commissioner Gee [2019] QCAT 179 Crime and Corruption Commission v Lee (No.2) [2019] QCATA 151 Crime and Corruption Commission v McCarthy & Anor 10 November 2019 OCR 246-18 OCR 321-18 Crime and Corruption Commission v Assistant Commissioner Careless & Anor [2021] QCAT 323 Police Disciplinary Matter of Shearer, E, B and W (current in QCAT) Deputy Commissioner Stewart v Dark [2012] QCAT 228 Police Service Board v Morris (1985) 156 CLR 397 -- 1 of 6 -- 2 Mr C Gnech, Solicitor Gnech and Associates for the Applicant Ms A Ireland – Queensland Police Service for the Respondent REASONS FOR DECISION [1] Mr Benjamin Stewart Shannon applied to the Queensland Civil and Administrative Tribunal (‘the Tribunal’) for a review of the determination of Assistant Commissioner of Police Maurice Carless dated 15 March 2021 (‘the Decision’) to dismiss Mr Shannon from the Queensland Police Service (‘QPS’). The Decision was made under Part 7 Division 5 of the Police Service Administration Act 1990 (Qld). [2] Mr Shannon does not challenge the finding of misconduct but seeks to set aside the sanction and asks this Tribunal to impose an alternate sanction. [3] The purpose of the review hearing under section 20(1) of the Queensland Civil and Administrative Act 2009 is for the Tribunal to produce the correct and preferrable decision. [4] The Tribunal must hear and decide the review by way of a fresh hearing on the merits.1 Background [5] Mr Shannon was a Senior Constable in the QPS stationed at Kirwan Police Station in Townsville. [6] Mr Shannon prior to the matter under review had no disciplinary history in his seven (7) year working history within the QPS. [7] The matter the subject of the misconduct, occurred whilst Mr Shannon was on duty with another crew member from the Kirwan Police Station. Inappropriately involved himself in the investigation of a traffic accident involving his wife and Failure to appropriate action against a driver who recorded a reading of 0.14% in a roadside breath test. [8] At a time after midnight on 23 June 2019 Mr Shannon received a telephone call to his personal mobile phone. [9] Mr Shannon and a crew member attended the location of Mr Shannon’s wife. [10] At the location Mr Shannon and the crew member observed Mr Shannon’s black Holden Commodore on the side of the road with a bent right rear wheel. [11] Mr Shannon approached his wife and had undertaken a breath analysis of his wife. Mr Shannon advised that he took a breath analysis of his wife to scare her. [12] The breathalyser unit was in training mode when Mr Shannon’s wife’s breath was analysed. [13] Mr Shannon states in his interview with Ethical Standards that the alcometer would automatically come up in training mode from the last use. [14] The evidence from the interview that Mr Shannon undertook with Ethical Standards officers indicates that the alcometer would need to be placed into training mode. Mr Shannon is unable to offer any further explanation as to how the alcometer was placed 1 Section 20(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 2 of 6 -- 3 into training mode. The evidence of the police service is that the alcometer must be manually placed into training mode. Mr Shannon did not contest that he placed the alcometer into training mode. [15] The importance of training mode in this matter is that the data is downloaded differently on audit. [16] Mr Shannon was not aware of his wife’s BAC of 0.14%. Mr Shannon did not contest this reading. It is not contested that Mr Shannon’s wife may have been liable to a mid-range drink driving charge. [17] Mr Shannon arranged for his father to attend the scene and drive his wife home. Caused false and/or misleading information to be entered on TAS after attending the traffic accident involving his wife [18] The download of the crew report stated that the crew had stopped to assist a driver with her vehicle who had broken down. The driver nominated RACQ for the tow and the driver had money to pay for the tow. [19] Mr Shannon later relayed that he told dispatch of this when he wasn’t thinking clearly and didn’t tell dispatch that it was a traffic collision. Mr Shannon agreed that this was misleading. Mr Shannon stated that he did not have any intention to mislead anyone. Mr Shannon advised that it was due to his personal state and that he did not have much memory of the night. Material before the Tribunal [20] Mr Shannon had a personal history that was attested to in the hearing including a marriage breakdown, financial stressors and life-threatening illness of his young child. I do not relay all the matters in this decision to protect the privacy of Mr Shannon and his family, but all of these matters have been fully considered by this Tribunal. [21] As part of his evidence there was a report from a General Practitioner. It is noted that a General Practitioner is not a specialist in mental health matters. The General Practitioner notes that, “It is my opinion that Ben’s diagnoses were not significant causal factors for the offending conduct being committed.” It is further noted that the General Practitioner stated, “I am unable to comment on the impact his career has had on his actions, however, a career in the police force can be an extremely high pressure and emotionally taxing job.” There is no further medical evidence from a specialist mental health professional. [22] Mr Shannon’s solicitor seeks that the Tribunal take into account four character references and identifies these as impeccable references. For the most part they glowingly attest to Mr Shannon’s role as a police officer and his difficult personal history including details of the factors mentioned in paragraph [20] above. An example of Mr Shannon’s policing, outlined in a reference dated 1 December 2020, attests to Mr Shannon placing himself in danger to rescue a driver in a precarious position in a truck accident. It is noted that Mr Shannon understood that the driver would’ve died without his assistance. I also note that a reference dated 30 November 2020 attests to Mr Shannon’s photograph in police uniform and domestic violence matters on the front page of the Townsville Bulletin. The reference notes the impact that the publication had on Mr Shannon. The Tribunal is unable to ignore the reference to domestic violence, although no detail is given and the matter is not before -- 3 of 6 -- 4 the Tribunal, this is a matter solely taken into account when considering the weight to be given to the references. [23] Mr Shannon also entered a plea of guilty to a misdemeanour charge of Refusal by a Public Officer to perform duty under section 200 of the Criminal Code. There is no contest between the submissions made in the Magistrates Court and the facts before the Tribunal. [24] Mr Shannon’s solicitor also sought that the Tribunal take into account Mr Shannon’s directed interviews. As noted in paragraph [12] above, Mr Shannon explained that he believed that the alcometer was in training mode from previous use. Upon being advised by the interviewing officers that this was not the case, Mr Shannon ultimately accepted that he placed the alcometer in training mode. [25] Mr Shannon during the interview also accepted that the range identified may have exposed his wife to a drinking driving charge in the mid-range level. [26] Mr Shannon recognised his conduct was a gross error of judgement. The Respondent stated in the Decision notice at page 4 paragraph 4, “Notwithstanding this finding, your deliberate actions relating to this incident and then providing misleading information severely erodes public confidence in the QPS and confidence in other officers”. [27] The Tribunal notes that Mr Shannon had seven (7) years of with no disciplinary history within the QPS prior to this misconduct matter. Balancing Exercise between mitigation and nature of sanction [28] The Tribunal takes on board that the Police Service Administration Act 1990 (Qld) introduced significant reform with the police disciplinary system. [29] The Applicant draws the Tribunal’s attention to a number of previous cases.2 I have considered all the cases placed forward by the Applicant. I note in the Applicant’s prior submissions to the Queensland Police Service when discussing sanctions under the prior scheme that “It must be recognised, precedents dated prior to 30 October 2019 provide limited to no assistance given the significant and dramatic changes that have been introduced through the new discipline system and with it, a new modernised rather than archaic philosophy.” I accept that this provides that the precedent value of disciplinary sanctions under the ‘old scheme’ will have some differences to those in the new discipline system. [30] The Applicant urges the Tribunal to consider a sanction that addresses “the inappropriate nature of the conduct, maintains community confidence in the QPS, reflects that appropriate level of disapproval, and properly balances the mitigating factors.” The Applicant seeks that the Tribunal consider a sanction of probation with education or a deferred dismissal with strict conditions in the alternative to the dismissal. 2 Quinn v law Institute of Victoria [2007] VSCA 122; Austin v Deputy Commissioner Peter Martin [2018] QCAT 120; Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 354; Price v Deputy Commissioner Gee [2019] QCAT 179; Crime and Corruption Commission v Lee (No.2) [2019] QCATA 151; Crime and Corruption Commission v McCarthy & Anor 10 November 2019 OCR 246-18 OCR 321-18; Crime and Corruption Commission v Assistant Commissioner Careless & Anor [2021] QCAT 323; Police Disciplinary Matter of Shearer, E, B and W (current in QCAT). -- 4 of 6 -- 5 [31] The Applicant’s submissions advise that it is not a case of ‘one strike and you are out’.3 [32] The Applicant further urged the Tribunal to consider the costs to the public of training of a police officer. These are matters that have been given weight by the Tribunal, but the cost to the public of training the Applicant does not outweigh the Applicant’s misconduct. [33] The Tribunal prefers the characterisation of the Respondent in Mr Shannon’s matter, “Although the applicant’s transgressions relate to the one incident on the same day, the conduct comprised of a series of very poor decisions that relate to one of the most basic tenets of ethical decision making, that of not showing favour to any person before the law, and in this case the applicant’s wife”. [34] The Tribunal accepts that Mr Shannon was under serious personal stressors and had mental health concerns. These are matters that the Tribunal has given weight to when considering the sanction in this matter. The Tribunal notes that the medical evidence Mr Shannon placed forward does not support that Mr Shannon’s health was a significant causal factor for his behaviour the subject of the misconduct finding. As noted in the matter of Deputy Commissioner Stewart v Dark,4 “Police officers are commonly placed in situations of considerable stress and may also be subjected to strong temptation from time to time. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.” It is noted that the Respondent in the Deputy Commissioner Stewart v Dark was under a considerable amount of stress due to marital breakdown, the dishonesty involved in Dark related for the most part to the Respondent’s personal life, including lying to his superiors regarding sick leave he had taken. [35] The aggravating feature in Mr Shannon’s matter was that the behaviour occurred whilst he was on duty, involved the use of a police-issued alcometer and enabled his wife to avoid a possible charge of Driving under the influence of alcohol, the connection with Mr Shannon’s actions and his obligations as a serving Queensland Police Officer are matters which should be weighted heavily, in line with community expectations. [36] The Tribunal has also noted that for the most part Mr Shannon has supportive character references from colleagues, though I do note that one character reference particularly does not fall into the characterisation of impeccable, as urged by the Applicant’s legal representative. [37] There were inconsistencies within Mr Shannon’s directed interviews which upon questioning Mr Shannon has accepted, as previously outlined. [38] The Tribunal has noted that the sanction is not one which is punitive but should be protective of the public.5 The Tribunal must balance the conduct with the need to protect the public, uphold ethical standards within the service; and promote and maintain public confidence, and officers’ confidence in the service.6 3 Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 354 at [45] as addressed in Mr Gnech’s submission to this Tribunal. 4 [2012] QCA 228 at [35]. 5 Police Service Administration Act 1990 (Qld) section 7.1. 6 Ibid 5. -- 5 of 6 -- 6 [39] The Tribunal has noted as urged by the Respondent in Police Service Board v Morris7 The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty [40] The Tribunal accepts that there have been critical failures in Mr Shannon’s decision making process. [41] Mr Shannon’s actions occurred whilst on duty and with the use of police resources. To permit Mr Shannon to continue as a police officer would undermine public confidence in the integrity of officers and the service. [42] The sanction of dismissal from the Queensland Police Service dated 15 March 2021 is confirmed. [43] In considering this sanction and confirmation of sanction, the Tribunal has taken into account the Human Rights Act 2019 (Qld) particularly section 25 of the Act.8 The Tribunal has considered the factors in section 13 when undertaking its obligations in accordance with all legislative requirements. 7 (1985) 156 CLR 397 at 412. 8 The right to Privacy and Reputation. -- 6 of 6 --