Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor (No 2) [2020] QCAT 426

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor (No 2) [2020] QCAT 426 PARTIES: ACTING SENIOR CONSTABLE CHRISTOPHER LEE WALLIS (applicant) v ACTING DEPUTY COMMISSIONER D A (TONY) WRIGHT CRIME AND CORRUPTION COMMISSION (respondents) APPLICATION NO/S: OCR192-18 MATTER TYPE: Occupational regulation matters DELIVERED ON: 10 November 2020 HEARING DATES: 1 September 2020 26 February 2019 HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: THE TRIBUNAL ORDERS THAT: The decision of Acting Deputy Commissioner Wright made on 2 July 2018 that the allegations of misconduct concerning Matter One and Matter Two is substantiated is confirmed. THE TRIBUNAL DIRECTS THAT: 1. The Crime and Corruption Commission must file in the Tribunal and give to Acting Senior Constable Wallis and Acting Deputy Commissioner Wright one (1) copy of any written submissions in relation to sanction, by: 4:00pm on 24 November 2020 2. Acting Senior Constable Wallis and Acting Deputy Commissioner Wright must file in the Tribunal and give to Crime and Corruption Commission one (1) copy of any written submissions in response, by: 4:00pm on 9 December 2020 -- 1 of 24 -- 2 3. The Crime and Corruption Commission must file in the Tribunal and give to Acting Senior Constable Wallis and Acting Deputy Commissioner Wright one (1) copy of any written submissions in reply, by: 4:00pm on 4 January 2021 4. Unless otherwise ordered and in the absence of a request for a further oral hearing, the Tribunal will determine the issue of sanction on the papers based on the written submissions filed by the parties on a date not before: 4:00pm on 5 January 2021 CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – general administrative review – where officer failed to comply with a direction – where rifle presented during pursuit – where officer failed to complete an evade police occurrence – where officer discharged four rounds from his service issue firearm into a moving vehicle - where disciplinary proceedings commenced – where conduct found to be substantiated – where sanction imposed for conduct - where the officer applied to review the findings of substantiation and that the conduct is misconduct – where the Crime and Corruption Commission applied to review the decision of sanction – whether the allegations of misconduct are proven to the required standard Crime and Corruption Act 2001 (Qld), s 219BA, s 219C, s 219G(2), s 219B, s 219H, s 444, Schedule 2 Police Service Administration Act 1990 (Qld), s 1.4. Police Service (Discipline) Regulations 1990 (Qld), s 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21 Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor [2019] QCAT 342 Deputy Commissioner Stewart v Dark [2012] QCA 228 Aldrich v Ross [2001] 2 Qd R 235 Briginshaw v Briginshaw (1938) 60 CLR 336 Elwin v Robinson [2014] WASCA 46 McIntosh v Webster (1980) 30 ACTR 19 Murray v Deputy Commissioner Stewart [2011] QCAT 583 Schauer v Banham, Misconduct Tribunal – Appeal No. 11 of 1996. -- 2 of 24 -- 3 APPEARANCES & REPRESENTATION: Applicant: C Gnech, Solicitor Advocate, Gnech and Associates Respondent: S A McLeod QC, instructed by Queensland Police Service Legal Unit P Price, Principal Lawyer, Crime and Corruption Commission REASONS FOR DECISION On 2 July 2018, Acting Deputy Commissioner Wright (‘the respondent’) found two matters of misconduct presented against Acting Senior Constable Wallis (‘Mr Wallis’) to be proven. The respondent deducted two penalty units from Mr Wallis’ salary, deferred Mr Wallis’ eligibility to progress to Senior Constable for a period of two years from 15 April 2016 and directed Mr Wallis to complete further training ‘Cap Units’. The two matters of misconduct arise out of Mr Wallis’ conduct in the performance of his duties as a police officer in response to what may more conveniently be described as an emergent situation before him. On 24 November 2014, Mr Wallis recalled himself to duty to assist Constable Bailey with the pursuit of a suspect vehicle. Mr Wallis was the Senior Officer and ignored an order given by Queensland Police Service (‘QPS’) communications that the pursuit be terminated or abandoned. Mr Wallis presented his rifle on two occasions during the pursuit of the suspect vehicle (‘Matter One’). On 13 March 2015, Mr Wallis was rostered on duty with Constable McDouall when they received information about a suspect vehicle. The suspect vehicle was located by the officers in an open paddock. The vehicle was stationary and appeared to be lodged on fencing material. Mr Wallis approached the suspect vehicle on foot. The driver of the suspect vehicle drove the vehicle off the fence and towards Mr Wallis at high speed. Mr Wallis drew his firearm. Mr Wallis fired four shots resulting in an injury to the driver of the vehicle (‘Matter Two’). In the present matter before the Tribunal, Mr Wallis applies to review the respondent’s findings of misconduct. The CCC applies to review the respondent’s sanction decision and for the purposes of the Tribunal’s review of the two matters of misconduct, the CCC takes a passive role in the proceeding.1 Mr Wallis’ application concerning the findings of misconduct proceeded to a review hearing before the Tribunal on 26 February 2019. The Tribunal adjourned the matter for a further hearing on 31 July 2019 to decide a question of jurisdiction about whether 1 See Outline of submissions on behalf of the applicant filed 15 February 2019 and outline of submissions on behalf of the applicant filed 20 March 2020. -- 3 of 24 -- 4 there is a reviewable decision before the Tribunal and whether the Tribunal has the power to make a stand alone declaration before the proceeding is finally decided.2 On 11 November 2019, I decided to exercise my discretion to review the respondent’s decision of 2 July 2018.3 At the resumed hearing before the Tribunal, further oral submissions about the two matters of alleged misconduct were made by Mr Gnech appearing for Mr Wallis and Mr McLeod QC appearing for the respondent. Both Mr Gnech and Mr McLeod QC also submitted at the oral hearing that each party relies upon their oral submissions made in the Tribunal hearing on 26 February 2019 and the written submissions and material filed in the review proceeding.4 The present matter before me is Mr Wallis’ review of the two matters of misconduct. It is common ground that the Tribunal will firstly review the respondent’s finding of misconduct in relation to Matter One and the findings on substantiation in relation to Matter Two. If, on review, the Tribunal finds that either one or both of the two matters of alleged misconduct to be substantiated, all of the parties will be given an opportunity to address the Tribunal further in relation to the appropriateness of any sanction to be imposed for Mr Wallis’ conduct. The Tribunal’s role on review The Tribunal stands in the shoes of the decision-maker or in this matter the respondent, Acting Deputy Commissioner, exercising the same powers as the decision-maker under the enabling act to produce the correct and preferable decision.5 The review proceeds before the Tribunal as a rehearing on the evidence that was before the decision-maker commonly referred to as the ‘section 21 material’.6 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’.7 The Tribunal does, however, have a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.8 I adopt the observations made by the Tribunal in Murray v Deputy Commissioner Stewart:9 Considerable respect is paid in this Tribunal to the views of the original decision maker [see Aldrich v Ross [2001] 2 Qd R 235], but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own views. 2 See Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor [2019] QCAT 342. 3 Ibid. 4 See also Exhibit 2, bundle of material handed up by Mr Gnech on 26 February 2019, Outline of submissions on behalf of the applicant dated 25 January 2019 and amended submissions filed 19 February 2020. See Exhibit 1, Respondent’s submissions filed 19 February 2019 and Further submissions on behalf of the respondent filed 18 March 2020. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19 (‘QCAT Act’) and see the Crime and Corruption Act 2001 (Qld), s 452 (‘CC Act’). The matter proceeds under the previous statutory framework as in force before the commencement of the current CC Act (on 30 October 2019). 6 Material filed by the respondent in accordance with s 21(2) of the QCAT Act (‘section 21 material’). See CC Act, s 219H. 7 Aldrich v Ross [2001] 2 Qd R 235, 257-258 (Thomas J). 8 Murray v Deputy Commissioner Stewart [2011] QCAT 583, [40] (Hon JB Thomas). 9 Ibid. -- 4 of 24 -- 5 Aldrich v Ross (at p 257) recognises that the independent review tribunal is the only vehicle by which a public perspective is brought to bear in police disciplinary matters, and accordingly there will be cases where it will be appropriate and necessary to depart from the views of the original decision maker.10 In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.11 Further, the Tribunal must be satisfied and find accordingly that the conduct complained of is police misconduct. ‘Misconduct’ is conduct that, if proven, is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.12 Particulars of the allegations of misconduct The two matters of misconduct and the further and better particulars are now set out below as follows: Matter One: That on 24 November 2014 at Winton your conduct was improper in that you: a) failed to comply with a direction to not pursue or attempt to pursue a vehicle; b) utilised inappropriate and excess [sic] force during and after an unauthorised pursuit; c) failed to complete an evade police occurrence concerning the failure of the driver to stop as directed by police. (Section 1.4 of the Police Service Administration Act 1990 and s.9 (1) (f) of the Police Service (Discipline) Regulations 1990 and OPMs section 2.4.12 - 14.32 - 17.3.7.) Further and better particulars In relation to matter l (a):  on 24 November 2014 at 9am you recalled yourself to duty to assist Constable Bailey to locate a suspect vehicle wanted for an evade offence;  you located the vehicle 45km outside of Winton and commenced to pursue;  you were advised by communications to discontinue the pursuit, but after stopping for a brief period you told Constable Bailey to continue the pursuit;  during the pursuit, you engaged members of the public to establish roadblocks in an effort to stop the vehicle; In relation to matter 1(b) 10 Murray, [40]. 11 Briginshaw v Briginshaw (1938) 60 CLR 336. 12 Police Service Administration Act 1990 (Qld), s 1.4 (definition of ‘misconduct’). -- 5 of 24 -- 6  during the pursuit you produced the police R4 assault rifle in a threatening manner at the driver of the suspect vehicle in an attempt to persuade the driver to stop;  once the vehicle pulled over you produced the police R4 assault rifle when approaching the intercepted vehicle; In relation to matter 1(c)  you were the senior officer involved in this matter;  you failed to ensure an evade offence was generated on QPRIME  you failed to generate the evade offence to avoid scrutiny about your action Matter Two: That on 13 March 2015 at Winton your conduct was improper in that you discharged four rounds from your service issue firearm into a moving vehicle resulting in injury to the driver. (Section 1.4 of the Police Service Administration Act 1990 and s.9 (1) (f) of the Police Service (Discipline) Regulations 1990 and OPM's section 14.7.) Further and better particulars Investigations have identified that:  on 13 March 2015 you were performing patrols as part of your rostered general duties at Winton Station;  at 6.35pm you located a Suzuki motor vehicle wanted in relation to a petrol drive off parked just past a rest area known as Crawford Creek;  this vehicle had driven off the highway into a wire fence line becoming entangled in the fencing wire;  as you approached this vehicle it reversed off the fencing material and drove into an open paddock;  as the vehicle exited this paddock, you discharged four rounds from your firearm as it drove past you;  one of the rounds you discharged hit the driver causing an injury. The material before the respondent in the disciplinary proceeding below that now forms part of the material on review includes, amongst other things, the respondent’s reasons for the findings of misconduct and the sanction imposed (‘the reasons document’), transcripts of interviews between the investigating officer from the QPS and Mr Wallis, Constable Bailey, Constable McDouall, other witnesses’ statements and various reports prepared by experienced police officers about the use of weapons and the relevant QPS policy for firearms. Matter One – incident on 24 November 2014 Mr Wallis does not dispute the relevant particulars of Matter One and the respondent’s findings save for particular three of matter 1(a) and the allegation that Mr Wallis told Constable Bailey to continue the pursuit. Further, it is noncontentious that particular three of matter 1(c) and the allegation that Mr Wallis failed to generate the evade -- 6 of 24 -- 7 offence to avoid scrutiny about his actions, is not proven.13 Mr Wallis does dispute, however, that the conduct is misconduct. Particulars of Matter 1(a) It is common ground that Mr Wallis recalled himself to duty to assist Constable Bailey to look for a suspect vehicle. Mr Wallis was the passenger in a vehicle driven by Constable Bailey and together they patrolled the highway heading towards Longreach approximately 45 kilometres outside of Winton, Queensland. The suspect vehicle was located exceeding the posted speed limit and Mr Wallis and Constable Bailey followed the suspect vehicle. The undisputed evidence is that QPS communications directed Mr Wallis and Constable Bailey to abandon the pursuit.14 Constable Bailey stopped the police vehicle and conducted a safety inspection. Constable Bailey got back in the vehicle and together he and Mr Wallis continued the pursuit of the suspect vehicle. Mr Wallis accepts that he was the senior officer in the crew and that he should have told Constable Bailey to not continue the pursuit trying to catch up to the suspect vehicle.15 Mr Wallis does not accept, however, that he told Constable Bailey to ‘continue the pursuit’, as alleged in particular three of matter 1(a). In addressing particular three of matter 1(a) and whether Mr Wallis told Constable Bailey to continue the pursuit of the suspect vehicle, Mr Gnech on behalf of Mr Wallis submitted at the oral hearing before the Tribunal that any alleged statements by Mr Wallis (to Constable Bailey) are not caught on the ‘dash cam’ footage. Mr Gnech referred the Tribunal to the relevant extracts from the transcript of the police disciplinary interviews with Constable Bailey and Mr Wallis. Constable Bailey’s evidence relevant to particular three of matter 1(a) is that after he completed an inspection of the police vehicle he got back into the car and Mr Wallis said to him, in response to QPS communications’ direction to abandon the pursuit, ‘Oh, don’t listen to them, just catch up’.16 Mr Wallis’ evidence is that the communications operator said to them as stated by Mr Wallis, ‘abandon any attempt to intercept’.17 Mr Wallis said Constable Bailey stopped the vehicle and then ‘jumped back in’ meaning the police vehicle.18 Mr Wallis said in referring to the dash camera footage that he started discussing something else with Constable Bailey. Mr Wallis accepted when questioned about the incident that when they caught up to the suspect vehicle that the pursuit had been reengaged.19 At the oral hearing, Mr Gnech submitted that Mr Wallis’ evidence should be preferred to Constable Bailey’s evidence. Further, Mr Gnech submitted that the facts are accepted in that Mr Wallis should have told Constable Bailey not to continue the pursuit but Mr Wallis disputes that his conduct is misconduct. 13 See Exhibit 1 (s 21 material), p 65. 14 Exhibit 1, p 22, [59]. See also Accepted Facts and contentions by Mr Wallis filed 26 February 2019. 15 Accepted Facts and contentions by Mr Wallis filed 26 February 2019. 16 Exhibit 1, p 1192, L285-290 to p 1193. 17 Ibid, p 1558, L815. 18 Ibid, p 1558. 19 Ibid, p 1559. -- 7 of 24 -- 8 Tribunal’s findings – Matter 1(a) I am not satisfied to the required standard that particular three of matter 1(a) is proven and that Mr Wallis told Constable Bailey ‘don’t listen to them, just catch up’ in referring to the suspect car. Constable Bailey’s evidence relevant to particular three of matter 1(a) is not supported by the dash camera recording.20 Further to that, Mr Wallis was not questioned during the police disciplinary interview about whether he said to Constable Bailey ‘don’t listen to them, just catch up’.21 In addressing particular four of matter 1(a) and whether Mr Wallis during the pursuit engaged members of the public to establish roadblocks in an effort to stop the suspect vehicle, Mr Gnech submitted in the oral hearing that although the conduct is accepted by Mr Wallis, the particular is not relevant. Mr Gnech submitted that the roadblock issue is a training issue and submitted that this issue has been resolved by self-initiated retraining and is not conduct that could warrant the stigma of misconduct.22 I am satisfied that particular four of matter 1(a) is proven. I do not accept Mr Wallis’ submission that particular four of matter 1(a) should be dismissed or found to be unsubstantiated on the basis that it is not related to the conduct in Matter One. Mr Wallis does not deny the conduct as particularised and submits that there was a misunderstanding about the roadblock legislation and policy.23 Mr Wallis’ self-initiated retraining in relation to the roadblock legislation and policy is to be commended and is of course relevant to any sanction that may follow in the event that I find Matter One to be substantiated and that the conduct is misconduct. It is open for me to find that particular four of matter 1(a) is proven. Mr Wallis did take steps to setup roadblocks to stop the suspect vehicle. Mr Wallis’ conduct clearly forms part of the factual matrix concerning his conduct particularised in Matter One. Relevantly, Mr Wallis failed to comply with a direction to not pursue or attempt to pursue the suspect vehicle. Mr Wallis’ conduct in attempting to establish roadblocks demonstrates that, consistent with the allegations particularised in Matter One, Mr Wallis ignored the order to discontinue the pursuit. Further to that, Mr Wallis engaged in conduct contrary to the relevant QPS policy surrounding roadblocks.24 I find that Mr Wallis’ conduct, save for particular three, particularised in Matter 1(a) is substantiated. Particulars of Matter 1(b) At the oral hearing, Mr Gnech on behalf of Mr Wallis submitted that Mr Wallis concedes that he breached the relevant QPS policy in presenting his R4 rifle. Mr Gnech submitted that Mr Wallis’ conduct took place during a dynamic event and does not warrant the stigma of a finding of misconduct. In the present matter, Mr Wallis does not contest the respondent’s findings in relation to matter 1(b) made in the disciplinary proceeding below. Mr Wallis accepts that during the pursuit he instructed Constable Bailey to pull up beside the suspect vehicle 20 Exhibit 1, p 22. 21 Ibid, p 20. 22 Applicant’s submissions filed 25 January 2019. 23 Ibid. 24 Accepted Facts and contentions by Mr Wallis filed 26 February 2019. -- 8 of 24 -- 9 and once alongside the suspect vehicle, he directed the driver to pull over.25 When the driver disobeyed the direction Mr Wallis presented his assault R4 rifle holding it parallel to the suspect vehicle (‘the first presentation of the rifle’). Mr Wallis did not point the rifle at the driver and the rifle was not loaded.26 Following the first presentation of the rifle, Mr Wallis and Constable Bailey continued to follow the suspect vehicle.27 Mr Wallis telephoned Constable McDouall who was off duty at the time and requested his assistance to, as stated by Mr Wallis in the disciplinary interview, ‘watch this vehicle’.28 Constable Bailey and Mr Wallis followed the suspect vehicle into Winton where they stopped and exited the police vehicle. The suspect vehicle also stopped.29 Mr Wallis’ evidence given during the police interview is that the driver of the suspect vehicle has already shown as stated, ‘by not stopping’ that he does not want to stop for police. Mr Wallis said that he was of the opinion that the driver of the suspect vehicle ‘could have driven at us’ and said ‘we were looking at serious injury if he’d hit us’.30 Mr Wallis accepts that he alighted from the police vehicle carrying his R4 rifle as he approached the suspect vehicle. The suspect vehicle drove away (‘the second presentation of the rifle’). Tribunal’s findings – Matter 1(b) I accept Mr Wallis’ submission that during the pursuit of the suspect vehicle and prior to the second presentation of his rifle that, as submitted, ‘threat levels were rising’.31 This submission is consistent with the evidence of the lay witness Mr Bell who witnessed Mr Wallis and Constable Bailey attempt to intercept the suspect vehicle. Mr Bell described police having to jump out of the way of the suspect vehicle.32 Mr Bell referred to the suspect vehicle as ‘speeding’ and said that if the police officers (meaning Mr Wallis and Constable Bailey) stayed there the suspect vehicle would have run over them.33 I do not accept Mr Wallis’ submission that the production or presentation of his rifle was justified on grounds of self-defence.34 In relation to the second presentation of the rifle, I find that Mr Wallis made the decision to present his rifle before any perceived or actual threat by reason of the suspect vehicle speeding towards him. Mr Wallis exited the police car with his rifle prior to the suspect vehicle turning around and driving towards him and Constable Bailey. The evidence also shows that Mr Wallis and Constable Bailey were able to move out of the way of the suspect vehicle. Constable Bailey’s evidence is that Mr Wallis got out of the vehicle with his rifle and said to him (Constable Bailey) ‘get your gun out’ and at that point the suspect vehicle 25 Exhibit 1, p 58. 26 Exhibit 1, p 58. 27 Ibid. 28 Ibid, p 1565. 29 Accepted Facts and contentions by Mr Wallis filed 26 February 2019. 30 Exhibit 1, p 1569. 31 Ibid, p 27. 32 Ibid, transcript of Bell’s interview, p 8 L234 to p 10. 33 Ibid, p 1378. 34 Ibid, p 27. -- 9 of 24 -- 10 has, as stated by Constable Bailey, ‘turned back and gone back the other way’.35 When asked whether he felt like he was in fear of his life, Constable Bailey said that, as stated, ‘if the car kept coming, yeah’.36 Constable McDouall’s evidence is that he drove in front of the suspect vehicle thinking that Mr Wallis and Constable Bailey’s police car would come behind and they would ‘box them [the suspect vehicle] in’.37 Constable McDouall said that he saw the police car (driven by Mr Wallis and Constable Bailey) stopped down near the Caltex Service Station and he remembered seeing them get out of the car and he could see the rifle. Constable McDouall said that they stayed there until the suspect vehicle drove around him.38 I find that Mr Wallis made the decision to present his rifle prior to the suspect vehicle speeding towards him. I find that Mr Wallis was the senior officer in the police car and should have complied with the direction not to pursue or attempt to pursue the suspect vehicle. It is open for me to draw the reasonable inference that the presentation of a rifle regardless of whether it is loaded or unloaded is threatening even if it is not pointed directly at the person or the vehicle. Mr Wallis’ conduct particularised in matter 1(b) is substantiated. Particulars of Matter 1(c) Mr Wallis accepts that he was the senior officer and says that he was entitled to reasonably and honestly assume that Constable Bailey was competent and capable to generate the necessary QPRIME entries as required, after the incident.39 Mr Wallis’ evidence given in the police disciplinary interview is that he gave advice to Constable Bailey in relation to making a record and said that he did not want to incur further overtime and was of the opinion that Constable Bailey was capable of making those entries.40 Mr Wallis accepted when questioned that he did not follow up with Constable Bailey later on to see if he had made the relevant ‘evade notice’ on QPRIME.41 In written submissions Mr Wallis says that he was placed in the unenviable position of being a constable of not significant service acting up not one but two ranks as an Acting Sergeant and then also as an Officer in Charge.42 Mr Wallis says that it is understandable and not surprising that he was not entirely equipped with the experience and skills to manage and supervise staff and administrative responsibilities without some oversight and/or mistakes.43 Mr Wallis says he held an honest and reasonable but mistaken belief that Constable Bailey completed the necessary entry on QPRIME and the QPS fail to negative this defence.44 In any event, Mr Wallis says the conduct does not warrant the stigma of 35 Ibid, p 1255. 36 Exhibit 1, p 1255. 37 Ibid, p 1422. 38 Ibid, p 1423, Line 1090-1096. 39 Applicant’s submissions filed 25 January 2019. 40 Ibid, transcript of interview of Mr Wallis, p 50 at 1665. 41 Applicant’s submissions dated 25 January 2020, p 27-28. 42 Ibid, p 28. 43 Ibid. 44 Ibid. -- 10 of 24 -- 11 misconduct. Further, Mr Wallis says particular three of matter 1(c) is incapable of being substantiated, the respondent having accepted his submission in the disciplinary proceeding below.45 Tribunal’s findings – Matter 1(c) I find that Mr Wallis as the Senior Officer with six years’ service failed to ensure an evade offence concerning the failure of the driver to stop as directed by police was generated on QPRIME. I agree with the findings of the respondent that Mr Wallis, as the Acting Sergeant at the time of the conduct was responsible for completing appropriate paperwork and overseeing the completion of duties by subordinate staff.46 As discussed above, Mr Wallis accepts that he did not follow up with Constable Bailey in relation to making a record. Mr Wallis conceded during his police disciplinary interview that in hindsight he should have sought more direction from higher up in relation to not knowing things.47 I am satisfied that, save for particular three, matter 1(c) is substantiated. Is the conduct giving rise to Matter One misconduct? In Schauer v Banham48 the former Misconduct Tribunal said and I accept that not every breach of discipline is misconduct. In Schauer, Dr JR Forbes said: …while all misconduct is a breach of discipline not every breach of discipline is misconduct. Misconduct is merely one of seven grounds of disciplinary action and on a generally ascending scale it comes just below the stigma of a “conviction… of an indictable offence”. The more serious the charge the more careful the Tribunal must be before it finds itself satisfied that the person charged is guilty. The legislature cannot have intended any and every breach of discipline to be classifiable as “disgraceful” or “show(ing) unfitness to be an officer” or even below “the standard of conduct (which) the community reasonably expects of a police officer”…49 I am satisfied that Mr Wallis’ conduct in Matter One is misconduct in that Mr Wallis’ conduct falls below the standard of conduct the community reasonably expects of a police officer. Mr Wallis chose to ignore a direction to not pursue or attempt to pursue a vehicle. Having ignored the direction, Mr Wallis as the Senior Officer made the decision on two occasions to produce his rifle. It matters not that the rifle was unloaded. I agree with the respondent’s findings that any reasonable member of the community who is confronted by a police officer carrying an R4 rifle could feel threatened.50 I have found that in relation to the second presentation of the rifle that Mr Wallis made the decision to present the rifle prior to the suspect vehicle speeding towards him. I agree with the respondent’s findings that the presentation of an unloaded rifle is of no worthwhile 45 Applicant’s submissions dated 25 January 2020, p 28. 46 Ibid, p 64. 47 Ibid, p 1588. 48 Schauer v Banham, Misconduct Tribunal – Appeal No. 11 of 1996. 49 Ibid, 15-16. 50 Exhibit 1, p 63. -- 11 of 24 -- 12 purpose in protecting life or property.51 It is open for me to find that the second presentation of the rifle was inappropriate and excessive in all of the circumstances. Mr Wallis’ submission that he may not have been equipped to manage and supervise staff and complete administrative responsibilities without some oversights or mistakes does not excuse or justify his failure as the Senior Officer to follow up with Constable Bailey about completing the evade offence entry on QPRIME. Mr Wallis, as the Senior Officer, failed to appreciate and have regard for the trust that junior officers and indeed the community place in him. If Mr Wallis, as the senior officer, was unsure about his responsibilities, the relevant QPS policies or the supervisory or administrative duties expected of him, he should have asked for assistance or sought advice. Although I have found that the weight of the evidence does not support a finding that Mr Wallis told Constable Bailey to continue the pursuit as alleged in particular three of matter 1(a), the fact remains that Mr Wallis was told by QPS communications to terminate or abandon the pursuit. Mr Wallis as the Senior Officer should have directed Constable Bailey to cease the pursuit. I am satisfied that Mr Wallis’ conduct for Matter One is substantiated and that the conduct does not meet the standard of conduct the community reasonably expects of a police officer. The correct and preferable decision is to confirm the respondent’s decision made on 2 July 2018 that the allegation of misconduct concerning Matter One is substantiated. I order accordingly. Matter Two – incident on 13 March 2015 Mr Wallis does not contest the circumstances giving rise to the conduct as set out in the respondent’s reasons document. Summary of the incident – Matter Two On 13 March 2015, Mr Wallis was rostered on duty with Constable McDouall when they received information about a suspect vehicle. They located the suspect vehicle and followed it for approximately 10 kilometres. Police communications were advised of the possible sighting of the suspect vehicle. Mr Wallis and Constable McDouall later located the suspect vehicle in a paddock which had become lodged on fencing material. There were two occupants in the suspect vehicle and the driver of the vehicle was attempting to drive the vehicle off the collapsed fencing wire. Mr Wallis parked the police car approximately five metres behind the suspect vehicle. The two occupants of the suspect vehicle got into the vehicle and reversed back towards the police car before driving forward again and becoming entangled on the fencing material. Mr Wallis exited the police vehicle and approached the male driver yelling ‘Stop, stop, stop, police’. The suspect vehicle lurched forward and drove into the open paddock. Mr Wallis commenced to follow the suspect vehicle on foot. The suspect vehicle conducted a U-turn to the left and commenced driving back towards the broken fence line. Mr Wallis believed at the time that the vehicle was driving directly towards him. Mr Wallis made the decision to ‘tactically withdraw’ and was quickly stepping backwards to the police car to take cover as he was in fear of being hit by the vehicle. The suspect vehicle drove towards Mr Wallis and he drew his firearm and fired four 51 Ibid, p 64. -- 12 of 24 -- 13 shots from his firearm with the last shot going through the side rear glass window, striking the driver in the upper right arm. The suspect vehicle drove out onto the highway heading towards Winton. Mr Wallis and Constable McDouall followed the suspect vehicle and advised QPS communications about the suspect vehicle. The suspect vehicle pulled over sometime later and the driver was taken to hospital. The driver, Mr Fish, was prosecuted and sentenced to the maximum period of imprisonment available under the offence of driving without due care and attention. Tribunal’s findings - Matter Two I accept Mr Wallis’ submission, consistent with the evidence set out below, that the incident giving rise to the allegation of misconduct was highly dynamic in nature, unfolded rapidly and there was only a very short amount of time for him to respond to the actions of the driver.52 I agree with the respondent’s finding in the proceeding below that Mr Wallis only had a very short period of time to make a ‘use of force’ decision.53 Mr Wallis’ evidence given during the disciplinary hearing is that the suspect vehicle’s engine was revving hard and he could see the ‘dust and the wheels spinning coming towards [him]’.54 When questioned about the speed of the vehicle, Mr Wallis replied, ‘I would say seventy as an estimate’.55 The relevant extract from the transcript of interview is as follows: WALLIS: Um and yeah I can as I said hear the engine revving hard like he's trying to gain speed. JONES: Yeah. WALLIS: And yeah you can actually see the dust and the wheels spinning coming towards me. LOCKHART: Are you able to estimate the speed? WALLIS: I would say seventy as an estimate. Mr Wallis said that as the vehicle got closer and as he has drawn his firearm, he can see the driver ‘reaching towards the centre console’. Mr Wallis said, ‘I’m thinking he’s trying to grab something’.56 Mr Wallis was questioned about how far away the vehicle was when he decided to draw his firearm. Mr Wallis said ‘probably ten metres.57 Mr Wallis said that he was aware that Constable McDouall was behind him somewhere. Mr Wallis’s evidence is that he drew his firearm and ‘simultaneously’ he is looking at the vehicle and thinking as stated, ‘Oh shit what’s he doing’.58 The relevant extracts from the transcript of interview are set out below as follows: 52 Applicant’s submissions filed 19 February 2020, p 2, [11]. 53 Ibid. See reasons document, p 72. 54 Exhibit 1, p 274 and p 276. 55 Ibid, p 276. 56 Ibid, p 276. 57 Ibid. 58 Ibid. -- 13 of 24 -- 14 WALLIS: Um and then as I said as he gets closer I can see as I've drawn my firearm he's already reaching towards the centre console so I'm thinking he's trying to grab something. … JONES: When you've ah decided to draw your firearm how far away was the vehicle from you? WALLIS: Ah probably ten metres. … JONES: Did you know where Constable - WALLIS: McDOUALL. … WALLIS: He, he wasn't in my peripheral so - JONES: Yeah. WALLIS: - I'm aware that he's behind me somewhere. … JONES: … you said that you, you've drawn your firearm and then you've seen him move or ... WALLIS: Well simultaneously like - JONES: Okay. WALLIS: - um I'm, I'm looking at the vehicle and thinking oh shit what's he doing. Mr Wallis said he started to ‘move back’ as he continued to watch the vehicle and at the same time the driver is ‘holding on and reaching across’.59 Mr Wallis was questioned about his decision-making process to draw his firearm. He said, ‘well I was in fear that I was going to get hit’.60 Mr Wallis’ evidence is that the vehicle was coming towards him and he feared for his own safety and that he was out in the open. Mr Wallis made the decision to draw his firearm stating he was ‘in fear of death of myself or grievous bodily harm’. The relevant extract from the transcript is set out below as follows: WALLIS: So I'm making my way back towards our vehicle and he's still coming towards me. I'm sort of quickstep-stepping it back. Um and I'm looking around I can see that I'm in the broken fence line and still moving back towards our vehicle. Ah again I don’t know where James was at this point um but he’s coming directly towards me I’m now fearing for my own safety. Um and given yeah I don't know how far away from the car I was at the time um I'm concentrating on his car not where mine is I've probably looked around and knew that I wasn't near it so I wasn't going to get impacted with it but I'm out in the open.61 … 59 Exhibit 1, p 278. 60 Ibid. 61 Ibid, p 280, L2331-2340. -- 14 of 24 -- 15 WALLIS: So now I'm heading back and by the time he's getting to within ten metres I'm you know thinking shit I'm in trouble here. Um I've drawn my firearm to try and um you know save it you know um if you're going to continue at me I've got to use a, a lethal use of force option. Um I'm in fear of death of myself or grievous bodily harm so um I believe I was justified.62 Mr Wallis stated that as the vehicle came through the fence line, he was in fear that the driver of the vehicle had a weapon. He stated that at this point he thought the way to stop the vehicle, referred to ‘the threat’, was to shoot at the tyres. Mr Wallis stated: Yeah. That he's got a weapon and he's about to point it out the window. So at this point I've thought the way to stop him, stop the vehicle, stop the threat, I shot at the ah rear tyres string of shots and as I've taken that last shot I've gone up and its gone through the rear right window.63 Mr Wallis said that he fired his ‘string of shots’ as the vehicle has ‘come up right next to me’.64 When questioned about whether he was pointing his firearm at the driver, Mr Wallis replied ‘No’ and stated that he was aiming at the front of the vehicle, the engine bay and not at the driver. The relevant extract from the transcript is as follows: WALLIS: Um as I'm aiming at the vehicle I'm aiming at the front of the vehicle the engine bay I'm not aiming for driver or passenger. JONES: Okay UI another question. WALLIS: Not, not um aiming at the windscreen or anything because I know that the first shot will deflect from the windscreen. JONES: Right. WALLIS: From training.65 Mr Wallis said that he made the decision that the suspect vehicle was not stopping, and when the vehicle was within a meter of where he was standing he saw the driver’s right hand ‘coming up’ and he thought, ‘he’s got a firearm or something’. Mr Wallis fired a string of shots as the vehicle, as stated, ‘come right next to [him]’.66 The relevant extract from the transcript is as follows: Um as he's coming towards me like he's gone to within a metre of where I am um and yeah I can see his right arms coming up, I can't recall if there was something in his hand or not but I've then um let off my string of shots as he's come right next to me. When asked about the direction that he (Mr Wallis) was pointing his firearm Mr Wallis maintained his evidence that he was aiming at the rear tyres of the suspect vehicle. Mr Wallis was questioned about where his finger was prior to forming the intention to fire. Mr Wallis stated, ‘outside of the trigger’. Mr Wallis stated that he was ‘aiming at the vehicle…not aiming for the driver or passenger’.67 62 Ibid, p 280, L2345-2350. 63 Exhibit 1, p 281, L2363-2365. 64 Ibid, p 282. 65 Ibid, p 283. 66 Ibid. 67 Ibid. -- 15 of 24 -- 16 Mr Wallis fired four shots. The first three shots struck the vehicle in the vicinity of the rear driver’s side tyre. The fourth shot struck the rear driver’s side window and hit the driver causing injury. Mr Wallis’s evidence is that he may have lost his footing and the last shot has gone into the window of the driver’s side.68 Mr Wallis’ evidence about where he was standing in relation to the suspect vehicle and what he was thinking when he fired the shots is relevant to the allegations of misconduct in Matter Two. Mr Wallis said that he thought the way to stop ‘the threat’ meaning the suspect vehicle was to use a use of force option. Mr Wallis also said that as the vehicle has come parallel to him, he discharged a string of shots. Further to that, Mr Wallis also said that he knew his ‘training says not to’ when he fired the shots. The relevant extract from the transcript of the interview is now set out below as follows: Um he’s still coming towards me. I’ve come back towards our vehicle and he’s come within like one metre of me. Now I’m in fear of being hit by the vehicle…. And, and not knowing what he’s got in his hand that I’m in serious danger…Um he’s come through the fence line, I’ve then turned to the vehicle. Ah as its come parallel to me I’ve thought well I can take a shot at the wheels and try to stop it….I know all our training says not to but that’s what I was thinking at the time. I’ve discharged a string of um shots into the rear of the vehicle and as the vehicles [sic] gone past me I think I may have lost my footing but the last shot has gone up into the rear um rear window on the driver’s side.69 When questioned further about whether the suspect vehicle was parallel with the police car, Mr Wallis stated that he could see the rear wheel.70 When asked if the vehicle had just about passed him, Mr Wallis said that the vehicle was in line with him. Mr Wallis accepted when questioned that the front of the vehicle obviously passed him and stated that he had not formed the intention to shoot at anyone in the car and maintained his evidence that his intention was to shoot the tyre.71 In relation to the first shot, Mr Wallis said: So, as I’m firing the first shot I’ve got the driver in line with me. As I said at no time have I pointed the firearm at the driver. Um as he has come towards me and gone past you know very closely um my first shot I believe was basically down to the right um rear tyre and um he’s gone probably like I don’t know one or two metre in that time that I fired the string of shots.72 In relation to the next three shots, Mr Wallis said: Um the second one was above the tyre. The third one was I think at the front of the wheel arch tyre area…. And then the last one went into the window.73 When asked how far the vehicle was from him when he made the decision to fire, Mr Wallis said: 68 Ibid, p 232, L730. 69 Exhibit 1, p 232. 70 Ibid, p 290, L2666. 71 Ibid, p 290. 72 Ibid, p 297. 73 Ibid. -- 16 of 24 -- 17 Um probably within a metre, one metre. I can see the rear wheel clearly um basically looking in this direction the driver’s window is here…74 When asked if he had fired the shots in ‘quick succession’, Mr Wallis said ‘Yep so um as we’re trained to shoot a string of shots, three, four, five shots’.75 During the re-enactment Mr Wallis stated the following: …he’s still coming towards me. I’ve drawn my firearm saying stop, stop, stop. I’m aiming at the ah the engine bay at this point…. still coming towards me. I’m moving back quickly now…. about here the vehicle is coming towards the fence line. I’m making the decision that he’s not stopping. I could see something coming up in his right hand…He’s leaning over. I’m thinking he’s got a firearm or something….I don’t recall looking across but I couldn’t see my partner in my peripheral…So I know that he’s not in front of me, he’s not beside me I’ve got a clear shot UI…Still coming. I’m about here I can see the rear tyre, formed the decision to fire at the rear tyres. My sequence of shots has gone one, two, three, my last shot rises up to the back window.76 And further: …the first three shots were bang, bang, bang and then I’ve risen up I don’t know whether I’ve tripped on something or what but my last shot has come up and breaks the back window…I was still aiming for the back tyre [with the last shot] but because he’s moving and I’m moving as well trying to track – I’ve lifted up…77 Was there a threat of death or grievous bodily harm to Mr Wallis? Mr Wallis says that he was never aiming at the driver of the suspect vehicle, he was entitled to use lethal force if he reasonably and honestly believed he or another were in imminent danger of death or grievous bodily harm and that he has no doubt on this night (of the incident), due to the actions of the driver (Mr Fish) driving that vehicle directly at him, he was personally in imminent danger of death or grievous bodily harm.78 Mr Wallis refers me to s 271 of the Criminal Code (Qld) (‘Criminal Code’) and the relevant defence for the use of force in circumstances where there is a threat of death or grievous bodily harm. Mr Wallis also relies on relevant sections of the Police Powers and Responsibilities Act 2000 (Qld) (‘PP&R Act’) and the power to use force against an individual in certain circumstances. Relevantly, s 616 of the PP&R Act provides that it is lawful for a police officer to use force reasonably necessary in certain circumstances such as if a police officer reasonably suspects a person is doing or is about to do something likely to cause grievous bodily harm to, or the death of, another person. In written submissions, the respondent argues that any threat to Mr Wallis by reason of the suspect vehicle driving towards him had passed and accordingly Mr Wallis 74 Ibid. 75 Ibid, p 300, L3020. 76 Exhibit 1, p 335 to 336. 77 Ibid, p 339. 78 Affidavit of Christopher Wallis sworn 18 October 2017, exhibit 1, p 49. -- 17 of 24 -- 18 disregarded operational procedures.79 The respondent says that Mr Wallis conceded that he should not have shot at the vehicle and further to that, Mr Wallis acknowledged that the threat of being hit by the vehicle had passed when the decision was made to discharge his firearm.80 I have carefully considered Mr Wallis’ evidence and submissions relevant to whether there was a threat of death or grievous bodily harm inflicted upon him and whether Mr Wallis’ actions in firing four shots into the suspect vehicle were reasonable and justified in all of the circumstances. I accept Mr Wallis’ evidence, supported by Constable McDouall, that he (Mr Wallis) was in fear of death for himself or grievous bodily harm when he made the decision to draw his firearm. Constable McDouall gave evidence about the incident and what happened after Mr Wallis got out of the police car to approach the suspect vehicle on foot. Constable McDouall stated that he stayed in the car and he could see Mr Wallis in his peripheral vision, but he could not see what he was doing.81 Constable McDouall said that the suspect vehicle came ‘straight towards us and is gathering speed’.82 Constable McDouall heard Mr Wallis say ‘stop, stop, stop’. Constable McDouall put his hand on the dashboard, bracing because he thought that the suspect vehicle was going to hit them. Constable McDouall’s attention was on the driver of the suspect vehicle and the driver had his right hand on the steering wheel and he was sitting in the driver’s seat, as stated, ‘sort of turned towards the centre of the car’.83 Constable McDouall could see the driver’s left arm was moving around near the console ‘reaching down’ and was looking down and up at the same time.84 He said that he honestly thought the driver of the suspect vehicle was going to hit them. Constable McDouall said the vehicle was ‘revving quite loudly and it is accelerating’.85 He said ‘I could see [Mr Wallis] and I was just like he’s going to hit [Mr Wallis]’.86 He also said that Mr Wallis had ‘nowhere to go’ and the suspect vehicle could have easily hit them and it (the vehicle) would have ‘gone over Mr Wallis’.87 After that Constable McDouall said Mr Wallis jumped back in the police car and they followed the suspect vehicle. When questioned about why he said that Mr Wallis had nowhere to go, Constable McDouall said that Mr Wallis was out the front of the car but he could not go forward because the car was there and he could not go to his right because the fence was there.88 When questioned about Mr Wallis’ movements, Constable McDouall said that 79 Respondent’s submissions filed 25 February 2019, p 7. 80 Ibid, p 7. 81 Exhibit 1, part B, p 380. 82 Ibid. 83 Ibid, p 381 and p 388. 84 Ibid, p 381. 85 Ibid. 86 Ibid, p 383. 87 Ibid. 88 Ibid, p 391. -- 18 of 24 -- 19 his focus was on the suspect vehicle and he could see Mr Wallis but he ‘wasn’t focused on him’.89 When questioned about how close the suspect vehicle was to Mr Wallis as it drove past him, Constable McDouall said ‘Well as I said how it missed him I don’t know’.90 Constable McDouall maintained his evidence that he thought the suspect vehicle was going to hit them and stated ‘I was shitting myself I thought he was going to hit us’ and as the suspect vehicle came past he thought it was going to hit Mr Wallis.91 I am satisfied based on the evidence before me that there was a threat or perceived threat of death or grievous bodily harm to Mr Wallis. I find that as Mr Wallis approached the suspect vehicle by foot, the suspect vehicle drove at high speed towards him. Mr Wallis was required to make a decision quickly. Mr Wallis chose to draw his firearm and at the same time he saw the driver of the suspect vehicle reaching to his left towards the console. Mr Wallis thought the driver may have been reaching for a weapon. As the suspect vehicle drove parallel to Mr Wallis, Mr Wallis took aim at the tyres of the suspect vehicle and fired four shots while stepping backwards. I accept Mr Wallis’ evidence that he was not aiming at the driver of the vehicle. I find that Mr Wallis fired four shots from his firearm quickly when the suspect vehicle was parallel to him. Three shots were fired in the vicinity of the rear wheel and the fourth shot struck the rear driver’s window.92 I am satisfied and find accordingly that the fourth shot fired by Mr Wallis resulting in an injury to the driver was not intentional in that Mr Wallis was not aiming at the driver. The driver’s injury by reason of the fourth shot striking the rear driver’s window is an unfortunate result of Mr Wallis stepping back and losing his balance by reason of him standing in a paddock and on uneven ground. The QPS policy for using a firearm I accept the respondent’s findings that the relevant QPS policy provides that an officer should refrain from using a firearm in the performance of their duties unless there exists an apparently unavoidable necessity which would be justified by law.93 Further to that, I accept the respondent’s findings that an officer should not use a firearm as a threat unless there are reasonable grounds to believe that such use is necessary to protect life or prevent serious injury to any person.94 The relevant firearms policy provides that, amongst other things, an officer should refrain from using a firearm in the performance of their duties unless there exists an apparently unavoidable necessity which would be justified by law. Officers should not use a firearm to fire at moving vehicles.95 The relevant extract of the QPS policy for the use of firearms is set out below as follows:96 14.7 Use of firearms 89 Ibid, p 392. 90 Ibid. 91 Ibid, p 393. 92 See respondent’s reasons document, Exhibit 1, p 72. 93 Ibid. 94 Ibid. 95 Policy 14.7 Use of firearms filed by the applicant on 26 February 2019. 96 See accepted facts and contentions by the applicant handed up by Mr Gnech at the oral hearing on 26 February 2019. -- 19 of 24 -- 20 … Policy Officers should refrain from using firearms in the performance of their duties unless there exists an apparently unavoidable necessity which would be justified at law. … This policy must be complied with under ordinary circumstances and may only be departed from if there are good and sufficient reason(s) for doing so. Where an officer so involved in the use of a Service firearm they are to be able to clearly articulate reasons. Relevant factors may include: (i) Whether the officer’s life, or the lives of others, were in immediate peril; and/or (ii) There was no reasonable, or apparent, means of escape. Officers should not use a firearm: (i) As a threat unless there are reasonable grounds to believe that such use is necessary to protect life or prevent serious injury to any person; (ii) In crowded thoroughfares or where lives of innocent persons might be endangered, in order to prevent the escape of an offender; or (iii) To fire at moving vehicles. Where possible, an officer threatened by an oncoming vehicle should move from its path instead of discharging a firearm at the vehicle or at its occupant/s (iv) During a pursuit… (v) From a moving vehicle; or (vi) To fire warning shots. Officers should not use a firearm to fire warning shots. … In the reasons document the respondent sets out the national guidelines for the use of lethal force by the police that such use or action is to be taken only when less extreme measures are insufficient. The relevant extract from the reasons document is as follows: The national guidelines for the use of lethal force by police expand the prohibition in section 616 of the [PP&R Act]. Guideline 39 states officers shall not use forearms except, in self-defence or defence of others against the imminent threat of death or serious injury, to prevent a particularly serious crime involving grave threat to life; and only when less extreme measures are insufficient. Guideline 41 states if lethal force is necessary officers shall exercise restraint and only use sufficient force to achieve their objectives; minimise injury to human life; and minimise material damage.97 In the reasons document, the respondent accepted Mr Wallis’ submission that he fired four shots quickly. The respondent observed that Mr Wallis’ submission is supported by the ballistics examination and referred to the grouping of three shots in the vicinity 97 Exhibit 1, p 74. -- 20 of 24 -- 21 of the rear wheel and the fourth shot that strikes the rear driver’s side window as the vehicle passes Mr Wallis.98 The respondent considered the evidence of Detective Inspector Kajewski and Acting Sergeant Finney who both prepared reports about use of force options and the incident giving rise to the allegation of misconduct in Matter Two. The respondent concluded that Mr Wallis conducted a poor threat assessment of the incident and his actions by discharging his firearm in an attempt to stop a moving vehicle is unacceptable and was not in accordance with established service policy or firearms training. The relevant extract from the reasons document is set out below as follows: …I find that you have conducted a poor threat assessment of this incident putting yourself in a situation where you have been unnecessarily exposed to risk. I find that your actions by discharging your firearm in an attempt to stop a moving vehicle is unacceptable and was not in accordance with established Service policy or firearms training. As a result of your actions the driver Fish received a gunshot wound to his upper arm. You have acknowledged that your actions of firing four rounds from your firearm at a moving vehicle do not comply with operational procedures and policy, conceding to investigators that you do not shoot at moving vehicles…The discharge of your firearm at a moving vehicle and your actions on this occasion I am reasonably satisfied would not meet the standard of conduct the community reasonably expects of a police officer.99 The evidence of Detective Inspector Kajewski and Acting Sergeant Finney Mr Kajewski provides an analysis of several articles about the average time for an officer who forms an intention to fire at a threat, that is draw from the holster and fire one round, ranging from 1.71 seconds to 2.0 seconds. Mr Kajewski refers to studies about visual perception and the term ‘looming’ used to explain the rapid expansion in the size of an image on the retina as it approaches directly from a narrow angle. Put simply, as the suspect vehicle approached Mr Wallis the likely effect on his perception would be to make it look bigger, faster and more threatening. Mr Kajewski goes on to say that once an officer identifies a threat has ceased it will take a minimum of 0.35 seconds and as long as 0.6 seconds to stop the neurological and muscular program and cease pulling the trigger. Mr Kajewski says, and I accept that in this case the earliest Mr Wallis could have identified the threat had ceased was when the vehicle passed to his right.100 The evidence of Acting Sergeant Finney is also relevant in this matter.101 A/Sergeant Finney prepared a report about the incident and the use of force by Mr Wallis. A/Sergeant Finney performs duties as a training officer in the Operational Skills Section of the QPS Academy and has been employed by the QPS for 14 years. He assesses Mr Wallis’ evidence given during the disciplinary investigation and summarises the relevant policy for use of force options. A/Sergeant Finney states and I accept that with all use of force options the decision must be judged according to the circumstances characterising the incident at the 98 Ibid, p 73. 99 Exhibit 1, p 76. 100 Ibid, p 1063. 101 Ibid, p 937. -- 21 of 24 -- 22 specific time and may be influenced by risks both real or potential.102 He states and I accept that officers are instructed not to use firearms against another person except in self-defence or in the defence of others in certain circumstances such as, amongst other things, to prevent death or the commission of a serious crime involving grave threat to life, and only when less extreme means are insufficient to achieve these objectives.103 A/Sergeant Finney forms the view that Mr Wallis’ use of force decision was not justified and potentially unlawful. Despite making observations about Mr Wallis’ actions such as, for example, that he (Mr Wallis) drew his firearm in response to an ‘honestly perceived imminent and legitimate threat to his life from being struck by the suspect vehicle’ which was travelling in his direction at high speed, A/Sergeant Finney considered that as Mr Wallis had successfully moved from the path of the suspect vehicle and it (the vehicle) had passed him by, the threat to his life no longer existed along with the justification for discharging his firearm. I do not agree with A/Sergeant Finney’s opinion that Mr Wallis’ use of force decision was potentially unlawful. In my view, A/Sergeant Finney did not fully consider all of the circumstances relevant to Mr Wallis’ decision to draw his firearm and to shoot at the moving vehicle such as Mr Wallis’ evidence that he feared for his life or grievous bodily harm because he saw the vehicle moving at high speed towards him and at the same time he drew his firearm he saw the driver of the suspect vehicle reach across towards the console of the vehicle reaching for something such as a weapon. Mr Wallis’ evidence about the threat to his safety is supported by Constable McDouall. That said, I do not consider for reasons discussed below that Mr Wallis’ conduct in firing four shots from his firearm into a moving vehicle was reasonable and justified in all of the circumstances. What is the correct and preferable decision? Mr Wallis was rostered on duty with Constable McDouall. Together they followed a suspect vehicle into an open paddock. The suspect vehicle became lodged on fencing material. Ms Wallis exited the police car and followed the suspect vehicle on foot. Mr Wallis found himself in a serious situation unfolding rapidly because the suspect vehicle drove at high speed into the open paddock towards him. Mr Wallis feared for his safety. Mr Wallis made the decision to draw his firearm when the suspect vehicle was driving towards him and at the same time that he drew his firearm, Mr Wallis saw the driver of the vehicle reach to his left towards the console. Mr Wallis thought the driver of the suspect vehicle may have been reaching for a weapon. Mr Wallis made the decision to discharge four rounds from his firearm into the suspect vehicle when the vehicle was parallel to him and knowing that it was against his training to do so. Perhaps, with the benefit of hindsight, Mr Wallis should not have exited the police car to follow the suspect vehicle on foot. That said, I make no findings about that because the fact remains that once Mr Wallis made the decision to follow the suspect vehicle on foot he found himself in a situation of danger and Mr Wallis was in fear of his life or grievous bodily harm. I do not consider, however, that Mr Wallis’ conduct in firing 102 Ibid, p 949. 103 Ibid, p 949. -- 22 of 24 -- 23 four shots into a moving vehicle was reasonable and justified in all of the circumstances. I accept that Mr Wallis in the conduct of his duties as a police officer is entitled to the protection of the law including any relevant sections of the Criminal Code and the PP&R Act. In using his QPS firearm or making a use of force decision to discharge his firearm, Mr Wallis must apply the relevant QPS policy for using a firearm in responding to the situation before him. The question of whether Mr Wallis’ use of force decision is reasonable and justified in all of the circumstances involves a question of fact and degree. More importantly, and critical to the task before me in determining the correct and preferable decision, whether Mr Wallis’ conduct in discharging four rounds from his firearm into a moving vehicle is misconduct as alleged in Matter Two is to be determined based upon the evidence before me. Ultimately, the Tribunal must be satisfied and find accordingly that the conduct complained of in Matter Two is proven and that the conduct is misconduct. It is non-contentious that the suspect vehicle drove towards Mr Wallis at high speed and consistent with the respondent’s findings at first instance, that I accept, Mr Wallis was required to make a ‘use of force’ decision within a very short time frame during a rapidly unfolding incident whilst experiencing physiological and environmental challenges.104 The evidence shows that Mr Wallis took aim at the tyres of the suspect vehicle and fired four shots when it was parallel to him. The suspect vehicle drove past Mr Wallis at the same time he fired the shots in quick succession. Mr Wallis knew when he fired the shots that his actions were contrary to his training. I do not accept, as submitted by Mr Gnech at the oral hearing, that there is compelling evidence that Mr Wallis was rightfully able to access the legal use of force options and consistent with Mr Kajewski’s evidence any concern around the position of the vehicle and timing of the threat passing can be explained by human instinct and reaction time. In my view police officers are often required to make decisions quickly in situations of danger to prevent a crime or serious injury to any person. Training of officers is therefore important to ensure that they are equipped to apply their knowledge and skills in responding to any situation. Officers are expected to uphold the law and comply with relevant policies including the QPS use of firearms policy. If lethal force is necessary officers are expected to exercise restraint and only use their firearm, as provided in the QPS policy for the use of a firearm, if there exists an apparently unavoidable necessity which would be justified at law. I have considered the observations made by the Supreme Court of the Australian Capital Territory in McIntosh v Webster and Another105 about the circumstances in which arrests are made. In McIntosh the Court said and I agree that: Arrests are frequently made in circumstances of excitement, turmoil and panic. I think it would be altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the court room and there 104 Exhibit 1, p 73. 105 (1980) 30 ACTR 19. -- 23 of 24 -- 24 make minute retrospective criticism of what an arresting constable might or might not have done or believed in the circumstances.106 I also consider and find accordingly that the community expects that officers will perform their duties unswervingly107 even in situations of danger and will exercise restraint knowing that their actions may be contrary to their training. The community expects that officers in performing their duties will comply with relevant QPS policies such as the QPS policy for the use of firearms. The QPS policy for the use of a firearm is clear and officers should not use a firearm to fire at moving vehicles. I consider that the discharge of a firearm is serious and put simply and on a fair reading of the QPS policy for the use of firearms, a use of force decision should only be used by officers as a last resort in responding to a serious situation such as a threat to life or to prevent serious injury to any person and only when less extreme measures are insufficient. Further to that, consistent with the national guidelines for the use of lethal force, if a use of force is necessary officers shall exercise restraint and only use sufficient force to achieve their objectives; minimise injury to human life; and minimise material damage. I have carefully considered all of the evidence before me, the dynamic nature of the incident and the environmental factors such as the location of the suspect vehicle being in an open paddock. I am satisfied that Mr Wallis’ actions in firing four shots into a moving vehicle when it was parallel to him and knowing that it was wrong was excessive. I find that Mr Wallis’ conduct as particularised in Matter Two is improper and falls short of the standard of conduct the community reasonably expects of a police officer. The correct and preferable decision is that the decision of the respondent made on 2 July 2018 that the allegation of misconduct concerning Matter Two is substantiated is confirmed. I order accordingly. 106 Ibid, 28. 107 See generally the reference to officers performing their duties ‘unswervingly’ in Deputy Commissioner Stewart v Dark [2012] QCA 228, [21]. -- 24 of 24 --