Crime and Corruption Commission v Assistant Commissioner MJ Keating & Anor [2021] QCAT 419

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Assistant Commissioner MJ Keating & Anor [2021] QCAT 419 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER MJ KEATING ANTHONY TRAGIS (respondents) APPLICATION NO/S: OCR039-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 24 November 2021 HEARING DATE: 26 October 2021 HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: The decision of Assistant Commissioner MJ Keating dated 28 January 2020 to impose a sanction on Anthony Tragis of 12 penalty units to be deducted from Anthony Tragis’ pay at a rate of one (1) penalty unit per fortnight is confirmed. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where allegations of misconduct – where subject officer accepts the charges of misconduct – where disciplinary sanction imposed – where the Crime and Corruption Commission applies to review the sanction decision – where allegations of misconduct were found to be substantiated – where subject officer treated motorists with disrespect and abuse and failed to exercise discretionary legal power – whether sanction imposed is correct and preferable Crime and Corruption Act 2001 (Qld), s 219A, s 219L, s 219P, s 219Q, s 452, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 66 Penalties and Sentences Regulation 2015 (Qld) Police Service Administration Act 1990 (Qld), s 1.4, s 7.1, s 7.34. Aldrich v Ross [2001] 2 Qd R 235 -- 1 of 10 -- 2 Briginshaw v Briginshaw (1938) 60 CLR336 Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169 Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151 Murray v Deputy Commissioner Stewart [2011] QCAT 583 O’Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12 APPEARANCES & REPRESENTATION: Applicant: P Price, Principal Lawyer for the Crime and Corruption Commission Respondent: MC O’Brien, Senior Legal Officer for the Queensland Police Service TE Schmidt, Counsel for Anthony Tragis REASONS FOR DECISION [1] Between 9 December 2017 and 9 January 2018, inclusive, Senior Constable Anthony Tragis treated motorists with disrespect and abuse and inappropriately exercised discretionary legal power concerning a life-endangering offence when dealing with an off-duty police officer. Mr Tragis was working as a single-officer patrol at the relevant time of the conduct. [2] Disciplinary charges for Mr Tragis’ conduct in 2017 and 2018, were presented by the Queensland Police Service (QPS). [3] Mr Tragis accepted the two matters of misconduct and on 28 January 2020, the Assistant Commissioner imposed a sanction of 12 penalty units to be deducted from Mr Tragis’ pay at a rate of one penalty unit per fortnight. At the relevant time, the total amount of the fine was $1,601.40 (the sanction decision).1 The Assistant Commissioner prepared written reasons for the sanction decision dated 28 January 2020.2 [4] The Commission applies to review the sanction decision. The Commission argues that Mr Tragis’ conduct in general, and particularly his decision to give preferential treatment to a fellow police officer over other individuals when dealing with a life- endangering offence, renders him unfit to continue at his present rank.3 Further to that, the Commission argues that a demotion in rank is the correct and preferable decision.4 1 See the Penalties and Sentences Regulation 2015 (Qld), one penalty unit being $133.45 at the relevant time. 2 Exhibit 1. 3 Submissions on behalf of the applicant filed 6 July 2020. 4 Ibid. -- 2 of 10 -- 3 [5] The Commission refers the Tribunal to the accepted allegations of misconduct and says that Mr Tragis was rude and disrespectful when dealing with members of the public as a single-patrol officer and had the potential to seriously undermine public confidence in the QPS. The Commission says that when dealing with a member of the public who it transpires was an off-duty police officer, Mr Tragis chose a course of action which gave a benefit to the officer at the expense of the public’s safety.5 [6] It is argued by the Commission that Mr Tragis’ actions undermine public confidence in the QPS and the substantiated conduct demonstrates Mr Tragis’ unfitness to serve at the rank of Senior Constable.6 [7] At the oral hearing before this Tribunal Ms Price for the Commission submitted that Mr Tragis’ conduct involved preferential treatment to another police officer, the conduct took place over a period of 5 weeks and involved inappropriate conduct and contact with members of the public. Ms Price said that the conduct demonstrates Mr Tragis’ unfitness to serve at the rank of Senior Constable that carries with it a duty to monitor more junior staff and to set an example. Submissions were also made at the oral hearing about the availability to this Tribunal by virtue of the power to suspend orders under s 219L of the Crime and Corruption Act 2001 (Qld), to fashion an order in terms of a sanction that reduces Mr Tragis’ rank and relevant pay points to be wholly suspended with conditions for a period of time. The Tribunal’s role on review [8] The Tribunal stands in the shoes of the decision-maker, the Assistant Commissioner, exercising the same powers to produce the correct and preferable decision.7 It is appropriate to give ‘considerable weight’ to the findings of the decision-maker on the basis that the decision-maker might be thought to have ‘particular expertise in the managerial requirements of the police force’.8 The Tribunal has a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.9 [9] The review proceeds before the Tribunal based on the material that was before the decision-maker commonly referred to as the material filed pursuant to s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).10 The decision-maker has a duty to assist the Tribunal to arrive at the correct and preferable decision. [10] The Tribunal applies the common law standard of proof being ‘on the balance of probabilities’ in assessing the evidence before it.11 The Tribunal must be satisfied and find accordingly that the conduct complained of is proven. ‘Misconduct’ is conduct that, if proven, is disgraceful, improper or unbecoming an officer; or shows unfitness 5 Submissions on behalf of the applicant filed 6 July 2020. 6 Ibid. 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19 (‘QCAT Act’) and see the Crime and Corruption Act 2000 (Qld) (CC Act), s 452. The matter proceeds under the statutory framework as amended by Police Service Administration (Disciplinary Reform) and Other Legislation Amendment Act 2019 (Qld) and effective from 30 October 2019. 8 Aldrich v Ross [2001] 2 Qd R 235, 257-258 (Thomas J). 9 Murray v Deputy Commissioner Stewart [2011] QCAT 583, [40] (Hon JB Thomas). 10 QCAT Act, s 21. 11 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 3 of 10 -- 4 to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.12 [11] The Tribunal is required to impose a sanction that achieves the purpose of a disciplinary proceeding.13 As reflected in O’Brien v Assistant Commissioner Taylor & Anor14 the objects of a disciplinary proceeding are to protect the public, to uphold ethical standards with the QPS, to promote the reputation of the QPS and to promote and maintain public confidence in the police service, not to punish the officer.15 What is the correct and preferable decision? [12] It is noncontroversial in the present matter that the allegations of misconduct found to be proven by the Assistant Commissioner are not challenged on review.16 As discussed above, the relevant misconduct is characterised for Matter 1 as being improper conduct because Mr Tragis treated motorists with disrespect and abuse; and for Matter 2 the conduct was improper because he failed to exercise discretionary legal power inappropriately concerning a life-endangering offence.17 It is convenient to set out below the factual background relevant to the two matters of misconduct summarised by the Commission in its written submissions that are also accepted by Mr Tragis (footnotes excluded):18 Summary of Facts Matter 1 9. Matter 1 comprises the following events, all of which were recorded on the Second Respondent’s body worn video (BWV). This footage (with the exception of that which occurred on 10 December 2017) has been included in the section 21(2) material provided by the First Respondent to the Tribunal and parties. 10 December 2017 10. At 3:48 pm on 10 December 2017, the Second Respondent intercepted a vehicle for speeding, and using a mobile phone. The Second Respondent questioned the driver (Motorist A) in relation to the offence, and then began a discussion about Motorist A’s faulty brake light. During the conversation, Motorist A made a comment about police working alone. The Second Respondent replied: “that’s why when people carry on, I’ve got Mr Yellow and Mr Black”, in reference to his taser and firearm. 11. In addition, the Second Respondent disclosed to Motorist A the presence of flags for being anti-police, and rude/arrogant towards police on Motorist A’s record. He failed to introduce himself, by providing his name and station in accordance with the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), and also failed to explain payment and court election options to the motorist as required in the Traffic Manual. 12 Police Service Administration Act 1990 (Qld) (“PSA Act’), s 1.4 (definition of ‘misconduct’). 13 See s 219A of the CC Act and s 7.1 of the Police Service Administration Act 1990 (Qld). 14 O’Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12, [57], [58]. 15 Ibid. 16 Submissions on behalf of the applicant filed 6 July 2020, applicant’s submissions in reply filed 7 September 2020 and second respondent’s outline of submissions filed 11 August 2020, [14]. See decision on disciplinary finding and proposed sanction dated 28 January 2020, Exhibit 1. 17 Exhibit 1. 18 Ibid. -- 4 of 10 -- 5 17 December 2017 12. At 12:22 pm on 17 December 2017, the Second Respondent intercepted an offending vehicle. In the process, an unrelated vehicle (Motorist B) pulled to the side of the road. Upon exiting his police vehicle, the Second Respondent yelled at Motorist B: “You… f*ck off!”. 13. The Second Respondent then approached the driver of the offending vehicle (Motorist C), failed to identify himself as required by the PPRA, and began his conversation with Motorist C with the words: “You’re an idiot.” During the course of the interaction, he referred to a passenger as a “knucklehead” and told Motorist C that he was “driving like a spastic up here.” Some discussion then ensued about the use of the descriptor “spastic”, during which the Second Respondent said to Motorist C “You offend me, driving like a moron up here”. Upon issuing Motorist C with a traffic infringement notice (TIN), the Second Respondent also failed to explain payment and court election options as required by the Traffic Manual. 8 January 2018 14. At about 3:15 pm on 8 January 2018, the Second Respondent was working single officer patrols at Mount Coot-tha when he intercepted a blue car (Motorist D) in relation to a speeding offence. During the course of the Second Respondent’s interactions with Motorist D, tensions between the two increased, resulting in the Second Respondent pushing Motorist D, drawing a service issued Taser on the driver, and threatening him with it. Motorist D subsequently reported the Second Respondent’s use of force. 15. The BWV recorded the Second Respondent raising his voice, shouting and swearing at Motorist D. When the Second Respondent drew his taser and aimed it at Motorist D’s back, he asked if the Second Respondent was going to shoot him. The Second Respondent’s reply was “No, I am going to f*cking taser you, you cock. F*cking moron.” 16. In contravention of the QPS use of force policy concerning taser presentations, the Second Respondent failed to provide a warning to Motorist D prior to drawing and aiming his taser. 17. In addition, he refused to show Motorist D the RADAR display, stating instead that Motorist D had been driving at 83 kms in a 60 km zone, but that the Second Respondent had only ‘locked him off’ at 75 kms. He then advised Motorist D that he intended to issue the TIN at the higher speed limit. 18. Finally, he failed to explain the TIN at the point of issuing it to Motorist D, in contravention of the QPS Traffic Manual Policy 8.6.4. After issuing the TIN, the Second Respondent got in his car, waved at Motorist D, and blew him a kiss. He then drove behind Motorist D for approximately 2.5 minutes. Motorist D responded by placing his arm out of the car window, and extending his middle finger to the Second Respondent. In turn, the Second Respondent wound down his window, put his arm out of the window, waved at Motorist D and yelled out the open window: “Another ticket’s coming – see ya!”. He then issued the driver another TIN for limb protrude. Other occasions 19. On five occasions, the Second Respondent failed to introduce himself to intercepted motorists, by providing his name and station as required by the PPRA. -- 5 of 10 -- 6 20. The Second Respondent admitted to all of the above allegations during his disciplinary interview. In relation to the requirements to identify and provide payment and court election options, he agreed that he did not comply, noting that at some stage, he had fallen into a “bad habit” and simply stopped providing this information. Matter 2 – 7 January 2018 21. On 7 January 2018 at 3:47 pm, the Second Respondent intercepted a red Ducati Motorcycle for travelling at 89km per hour in a 60 km zone. When the Second Respondent asked the rider to produce his driver’s licence, the rider (who was an off-duty QPS officer) allowed the Second Respondent to view his QPS badge. On viewing the badge, the Second Respondent said: “Ahh… really? You should know better”. He then engaged in some further discussion with the off-duty officer and let him go, without issuing a TIN. 22. The Second Respondent again made full admissions to this conduct during his disciplinary interview. When questioned as to his motivation behind his decision not to issue a TIN to the off-duty officer, the Second Respondent was unable to provide any reason. [13] I accept, as submitted by the Commission, that Mr Tragis’ conduct as a Senior Constable between 10 December 2017 and 8 January 2018, inclusive, undermines the public confidence in the QPS. [14] In my view, members of the public expect that police officers will conduct themselves appropriately when performing their duties and refrain from using offensive and rude language. Mr Tragis showed a lack of respect for his position as Senior Constable when he failed to identify himself and explain the relevant traffic infringement notice to intercepted motorists. Mr Tragis made inappropriate comments and used offensive language and gestures to intercept motorists by raising his voice, shouting and swearing and on one occasion drawing his taser and aiming it at a motorist’s back. Further to that, Mr Tragis did not discharge his legal duty appropriately and failed to issue an off-duty QPS officer with a traffic infringement notice. [15] I agree with the views expressed by the Assistant Commissioner in the reasons document about the seriousness of Mr Tragis’ conduct that is not consistent with the expected standards and professionalism of the QPS and community expectation.19 The Assistant Commission said, and I agree, that Mr Tragis’ conduct provides potential reputational harm to the organisation where there is an identified breach of Operational Skills and Tactics regarding the presentation of a Taser and not appropriately addressing members of the public when investigating detected offences.20 [16] I do not accept, however, the Commission’s submission that Mr Tragis should be demoted in rank for the substantiated misconduct in all of the circumstances of this matter. The relevant matters include, amongst other things, the seriousness of the conduct, Mr Tragis’ state of mind at the time of the conduct, insight and early acceptance of the allegations, disciplinary history and conduct since committing the acts of misconduct giving rise to the present disciplinary proceedings, and relevant cases. 19 Exhibit 1, p 37. 20 Ibid. -- 6 of 10 -- 7 [17] I have also taken into account the potential financial loss to Mr Tragis’ salary in relation to a demotion in rank. Relevantly, at the oral hearing before this Tribunal, Ms Price for the Commission submitted that Mr Tragis be temporarily demoted in rank to Constable 1.6 for a period of 2 years and at the conclusion of the 2 years, Mr Tragis is to revert back to Constable 2.10. At the oral hearing, Ms Price accepted that the proposed sanction sought on review is a temporary demotion and that there is a financial detriment to Mr Tragis that would be in the vicinity of $40,000.00 in accordance with any relevant Police Enterprise Bargaining Agreement that provides the relevant pay levels for officers.21 [18] At the oral hearing before this Tribunal, Ms Price for the Commission submitted that although the Tribunal may take into account any financial loss by reason of the proposed sanction, she argued that the weight that is given to that must be countered with the conduct. Ms Price argued that Mr Tragis’ conduct is so serious as to outweigh any finaical detriment. [19] In the present matter, the seriousness of the conduct is one of a number of matters to be considered in exercising the broad discretion to determine the correct and preferable sanction. The sanction to be imposed must be consistent with the purpose of discipline to ensure appropriate standards of discipline are maintained within the Service to protect the public and uphold ethical standards within the service and to promote and maintain public confidence and officers’ confidence in the Service.22 The sanction must balance relevant considerations as at the present time, not the time the conduct took place. [20] Here, Mr Tragis was diagnosed with Post Traumatic Stress Disorder (PTSD) at the time he engaged in the misconduct as detailed in the report prepared by a Clinical Psychologist. Relevantly, the Clinical Psychologist reports that the PTSD led to poor behaviour displayed at work during middle December 2017 to mid-January 2018, inclusive.23 Further to that, Mr Tragis’ PTSD is reported to have fully stabilised and he is reported to be able to recognise and manage early warning signs. Mr Tragis is also reported to be mentally stable. [21] It is apparent from the reasons document that the Assistant Commissioner had regard to the medical evidence that details Mr Tragis’ mental health condition and its impact on his misconduct. As reflected in the reasons document, the Assistant Commissioner considered Mr Tragis’ medical diagnosis and treatment plan and strategies to treat and manage his PTSD. The Assistant Commissioner also considered Mr Tragis’ significant personal issues which were in combination with his PTSD relapse found to be contributing circumstances to his conduct.24 [22] I agree with the Assistant Commissioner’s findings about Mr Tragis’ mental health condition at the time of the misconduct that is supported by reports prepared by Mr Tragis’ treating health professionals. I find that Mr Tragis’ personal circumstances and PTSD contributed to his misconduct. 21 See Exhibit 4. The estimated figure of $40,000.00 does not include operational shift allowances that is payable to an officer in accordance with the agreement. 22 See s 219A of the CC Act and s 7.1 of the PSA Act. 23 Exhibit 1, p 21. 24 Ibid, p 38. -- 7 of 10 -- 8 [23] I am satisfied that Mr Tragis has demonstrated insight and remorse into his misconduct. Mr Tragis accepted the presentation of the two matters of misconduct at an early stage of the disciplinary proceedings. As reflected in the Assistant Commissioner’s reasons document, Mr Tragis made submissions in the disciplinary proceedings below that he has learnt from the incident and has used the preceding 22 months to demonstrate his continued fitness and professionalism.25 Further to that, as reflected in the reasons document that I accept is evidence of insight into the misconduct, Mr Tragis says that he has recognised the need to treat other officers in the same manner in which you treat members of the public and that if you detect a police officer committing a speeding offence (or any other offence) you are obliged to take action.26 [24] There is evidence before me of Mr Tragis’ conduct as a police officer since the misconduct that is relevant to determining the correct and preferable decision in this matter, in particular Mr Tragis’ fitness to continue as a Senior Constable. [25] Michael Stevens, Senior Sergeant of Police states that since 28 January 2020, Mr Tragis has been under his command and supervision. Mr Stevens refers to Mr Tragis’ performance as ‘excellent’ stating that he is ‘performing well both as an operational road policing officer and as a senior member of the work unit’.27 Mr Stevens states that Mr Tragis conducts himself in a professional manner and regularly within an open forum encourages other officers to perform the same, citing his own example of how things can affect you if you do the wrong thing. Further to that, it is reported that Mr Tragis does not hide from the matters that contributed to this disciplinary matter and Mr Tragis openly tries to assist other officers to ensure they do not suffer from similar issues.28 [26] I accept Mr Stevens’ evidence. I find that since the misconduct Mr Tragis has continued to perform his duties as a Senior Constable of police to a high standard. I am also satisfied that Mr Tragis has demonstrated insight into his conduct by encouraging other officers to perform their duties in a professional way, citing his own example of how things can affect you if you do the wrong thing. [27] I have taken into consideration the delay in finalising the disciplinary proceedings. Although unfortunate, I do not consider the delay in finalising the matter is significant. Indeed, as discussed above I have considered the evidence of Mr Tragis’ good conduct in the performance of his duties as a police officer since the misconduct. [28] I have considered the decision in Caesar v Deputy Commissioner Brett Pointing.29 Caesar involved a Senior Constable who submitted 46 applications for various advertised positions within the QPS. Mr Caesar was untruthful about the work he said he had performed and made statements that were untrue. Mr Caesar admitted the particulars but denied that the allegations amounted to misconduct and argued that he had a mental health condition which reduced his culpability for the matters. The Deputy Commissioner dismissed Mr Caesar from the QPS. On review the Tribunal 25 Ibid. 26 Ibid. 27 Exhibit 3. 28 Ibid. 29 [2017] QCAT 169. -- 8 of 10 -- 9 confirmed the decision and found that, amongst other things, Mr Caesar’s actions were sophisticated, premeditated and repeated. [29] In my view Caesar can be distinguished from the circumstances in the present matter. Here, Mr Tragis consistently showed a failure of expected standards and professionalism of the QPS and community expectations. Mr Tragis’ personal issues and PTSD contributed to the conduct. I do not consider that Mr Tragis’ conduct was, like Caesar and as found by the Tribunal, sophisticated and premediated. [30] Mr Tragis’ conduct giving rise to the disciplinary proceedings, must be considered as a whole such that it took place during a relatively short period of time of approximately 4 to 5 weeks. During this time Mr Tragis exercises poor judgment and fails to exercise discretionary legal power by not issuing a traffic infringement notice to an off-duty police officer. Mr Tragis also shows a lack of professionalism and disregard for his duties as a single-patrol officer to identify himself to members of the public and to comply with the Traffic Manual by advising motorists of the relevant notices and their options. Mr Tragis makes inappropriate comments and gestures towards motorists. This shows a complete lack of regard for his senior position in the Service. Senior officers are expected to set an example to other junior officers in the Service. [31] Although, like Caesar, Mr Tragis’ conduct was repeated over a period of time, each matter will ultimately turn on its facts. Here I have found that Mr Tragis was experiencing personal issues at the time of the misconduct as well as PTSD. Mr Tragis accepted the misconduct in full at an early stage and demonstrated insight and remorse. Mr Tragis sought the assistance of a health professional to address his personal issues. Since the misconduct Mr Tragis has performed his duties to a high standard and addressed his mental health issues. [32] At the oral hearing, Mr Schmidt for Mr Tragis submitted and I accept that Mr Tragis achieved the rank of Senior Constable in 2008 because his was entitled to do so after 5 years. He holds the highest pay point for a Senior Constable. I do not consider a demotion to Constable is correct and preferable in this matter. The financial effect is in my view punitive because it will attract a deduction in Mr Tragis’ pay of approximately $40,000.00. I also recognise the importance of achieving finality in a disciplinary proceeding. A demotion to Constable creates uncertainty as to its effect because Mr Tragis is entitled to progress to the rank of Senior Constable by reason of his number of years of service in the QPS. [33] That said, I do not consider that a demotion or reduction in pay points in this matter is the correct and preferable decision in all of the circumstances. I am required to determine the appropriate sanction flowing from the finding of misconduct. Mr Tragis’ conduct and performance as a police officer since the misconduct is relevant to the issue of Mr Tragis’ fitness to continue as a Senior Constable.30 I am satisfied based on all of the material before me that the evidence does not support a finding that Mr Tragis is presently unfit to continue to serve as a Senior Constable of the Service. [34] I have also considered whether any demotion or reduction in pay points, if ordered, should be suspended in all of the circumstances. As discussed above, there is evidence of Mr Tragis’ good conduct since the misconduct concerning the performance of his police duties to a high standard. But for the misconduct giving rise to the present 30 Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151, [69]. -- 9 of 10 -- 10 disciplinary proceedings, Mr Tragis has a past history of good conduct and service. The evidence as to Mr Tragis’ conduct since the misconduct is compelling. As discussed above, there is evidence of Mr Tragis’ insight into his misconduct and his willingness to share his own experience with other officers. Senior officers in the Service are expected to lead by example and Mr Tragis has demonstrated leadership qualities since the misconduct when citing his own example of how things can affect you when you do the wrong thing. Mr Tragis has also taken steps to address his mental health issues that contributed to his misconduct. [35] A penalty of 12 units will, in my view, serve the purpose of discipline by sending a clear message to other officers not to engage in similar conduct, to uphold ethical standards within the Service and to maintain public confidence in the Service.31 A police officer is required to behave in a professional and appropriate way and to uphold the law in dealing with members of the public and off-duty police officers. The sanction of 12 penalty units also reflects the seriousness of the conduct and relevant mitigating circumstances such as Mr Tragis’ mental health and personal issues, insight and remorse and good conduct since the misconduct. The correct and preferable decision is to confirm the decision of Assistant Commissioner MJ Keating dated 28 January 2020 to impose a sanction of 12 penalty units to be deducted FROM Mr Tragis’ pay at a rate of one (1) penalty unit per fortnight. I order accordingly. 31 PSA Act, s 7.34. -- 10 of 10 --