Crime and Corruption Commission v Assistant Commissioner Brian J Wilkins & Anor [2018] QCAT 338

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Assistant Commissioner Brian J Wilkins and Detective Senior Constable Rebecca Tilse-Leckie [2018] QCAT 338 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER BRIAN J WILKINS (first respondent) DETECTIVE SENIOR CONSTABLE REBECCA TILSE-LECKIE (second respondent) APPLICATION NO/S: OCR137-18 MATTER TYPE: Occupational regulation matters DELIVERED ON: 28 September 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: 1. The disciplinary sanction imposed on 11 May 2018 by the First Respondent is set aside; 2. The Second Respondent is reduced from pay level Senior Constable 2.10 to pay level Senior Constable 2.9 for 12 months commencing on 28 September 2018; 3. The Second Respondent is ordered to complete the following Queensland Police Service online learning products by 27 March 2019; (a) Violence Against the Person – QCP010 (b) Ethics & Ethical Decision-making – QC1022- 02-A (c) Information Security – QC0544 (d) QPRIME Fundamentals – QC0544-02 4. The Second Respondent is eligible to progress to pay level Senior Constable 2.10 on 28 September 2019; -- 1 of 5 -- 2 5. Thereafter, the Second Respondent is to progress pay levels in accordance with industrial arrangements. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – Whether sanction imposed for misconduct reflects the seriousness of the conduct – where parties jointly agreed on facts and sanction Crime and Corruption Act 2001 (Qld), s 219G, s 219H. Police Service Administration Act 1990 (Qld), s 1.4, s 7.4 Police Service (Discipline) Regulations 1990 (Qld) reg 6, reg 9(1)(f), reg 10. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 24(1)(b), s 32 Aldrich v Ross [2001] QD R 235 Crime and Corruption Commission v Assistant Commissioner Dawson and Anor [2017] QCAT 37 Crime and Corruption Commission v Inspector Lee D Jeffries and Anor [2017] QCAT 331 Hardcastle v Commissioner of Police (1984) 53 ALR 593 McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 Medical Board of Australia v Martin [2013] QCAT 376 Police Service Board v Morris (1985) 156 CLR 397 REPRESENTATION: Applicant: Z Valeska, Principal Lawyer First Respondent: Second Respondent: QPS Legal Service Queensland Police Union Legal Group APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] The Second Respondent, Rebecca Tilse-Leckie, is a Detective Senior Constable of the Queensland Police Service (QPS). On 11 May 2018, following disciplinary proceedings, there was a finding of misconduct against her by the First Respondent, the particulars of which were that in December of 2016 she: (a) physically pushed and shoved a security provider of the Shafston Hotel; (b) pulled the hair of (a person who intervened during the incident) and later tackled (that person) to the ground at the Shafston Hotel; -- 2 of 5 -- 3 (c) inappropriately accessed official and confidential information contained in the QPS computer system without an official purpose relating to the performance of her duties as a member of the QPS.1 [2] In submissions made to the First Respondent at the disciplinary proceedings, the Second Respondent acknowledged responsibility for her actions and accepted the serious nature of the matters under consideration. [3] At the conclusion of the disciplinary proceedings there was a finding of misconduct and the sanction of reprimand was imposed, pursuant to regulations 6 and 10 of the Police Service (Discipline) Regulations 1990 (Qld). An application to review that decision in relation to the sanction imposed was filed in the Tribunal by the applicant on 25 May 2018. [4] Following a compulsory conference conducted by the Tribunal on 23 August 2018, the parties filed joint submissions and proposed orders. The joint submissions may be summarised as follows: (i) The Second Respondent accepts that the sanction imposed by the First Respondent is inadequate. (ii) The facts as particularised and as found in the disciplinary proceedings are not in dispute. (iii) It is accepted that the conduct falls below that which is expected by the community of a police officer whilst off duty. (iv) The Second Respondent otherwise has an exemplary 14 year service record with the QPS. She also had a distinguished military career as an officer prior to joining the QPS in 2004 and is of good character. (v) The Second Respondent continued her full operational responsibilities for 18 months after the incident in question and did so without any further blemish. (vi) There was no explanation as to why the disciplinary proceedings were unreasonably delayed, it being accepted that disciplinary processes have a detrimental effect on both an officer’s career and well-being when complaints are not resolved in a timely manner. [5] By reference to sections 219G and 219H of the Crime and Corruption Act 2001 (Qld) and sections 17 to 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the present review is by way of rehearing on the merits and the purpose of the review is to produce the correct and preferable decision. By s 24 of the latter Act, the Tribunal may (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration by the decision-maker for the decision, with the directions the tribunal considers appropriate. 1 See, ss 1.4 and 7.4 of the Police Service Administration Act 1990 (Qld); and s 9.1(f) of the Police Service (Discipline) Regulations 1990 (Qld); and s 2 (Personal conduct) as contained in the Standard of Practice (Professional Conduct); Queensland Police Service Policy. -- 3 of 5 -- 4 [6] While the Tribunal must make an independent decision, where, as here, the parties jointly propose a sanction, the Tribunal ought not to depart from that proposal unless it falls outside the permissible sanction range for the conduct in question, given that the purpose of disciplinary proceedings is protective rather than punitive.2 In the ‘Findings and Reasons’ of the First Respondent, it is stated that the purpose of disciplinary actions, as reflected in ‘Service Policy’,3 is to maintain public confidence in the QPS; maintain the self-esteem of members of the QPS; maintain confidence in the ability of the QPS to fulfil its statutory functions; maintain proper standards of conduct for members of the QPS (by specific and general deterrence principles); maintain the efficiency of the QPS; and protect the reputation of the QPS. [7] As to the disciplinary actions that are open, section 7.4(3) of the Police Service Administration Act 1990 (Qld) provides: Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following: (a) dismissal; (b) demotion in rank; (c) reprimand; (d) reduction in an officer’s level of salary; (e) forfeiture or deferment of a salary increment or increase; (f) deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units. [8] As outlined below, the proposed sanction comprises a reduction in the officer’s level of salary for 12 months and a requirement to complete specified QPS ‘online learning products’. Considering the misconduct in question and the circumstances outlined above, I am satisfied that the sanction proposed by the parties does fall within the permissible sanction range and that it is appropriate to adopt the proposed orders. Certainly, in my view, a sanction of demotion in rank would be excessive. As noted in McKenzie v Acting Assistant Commissioner Tony Wright:4 The effect of demotion must be recognised as very severe. Apart from the disgrace associated with it, the demotion is accompanied by what is on any view a serious financial sanction. On the other hand, the parties have agreed, and I accept, that the penalty of reprimand is inadequate. [9] In my view, the correct and preferable decision is to apply a sanction in accordance with the joint submissions and proposed orders of the parties. Accordingly, pursuant to s 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 1990 (Qld), I make the following orders in the terms of the consent orders sought by the parties: 2 Medical Board of Australia v Martin [2013] QCAT 376 [91]-[93]; Crime and Corruption Commission v Inspector Lee D Jeffries and Anor [2017] QCAT 331 [23]; Crime and Corruption Commission v Assistant Commissioner Dawson and Anor [2017] QCAT 37 [11]. 3 As noted in the ‘Findings and Reasons’, the Policy is based on decisions of the courts that have considered the purposes of disciplinary actions: see, for example, Aldrich v Ross [2001] 2 Qd R 235; Police Service Board v Morris (1985) 156 CLR 397; Hardcastle v Commissioner of Police (1984) 53 ALR 593. 4 [2011] QCATA 309 [49]. -- 4 of 5 -- 5 (a) The disciplinary sanction imposed on 11 May 2018 by the First Respondent is set aside; (b) The Second Respondent is reduced from pay level Senior Constable 2.10 to pay level Senior Constable 2.9 for 12 months commencing on 28 September 2018; (c) The Second Respondent is ordered to complete the following Queensland Police Service online learning products by 27 March 2019; (i) Violence Against the Person – QCP010 (ii) Ethics & Ethical Decision-making – QC1022-02-A (iii) Information Security – QC0544 (iv) QPRIME Fundamentals – QC0544-02 (d) The Second Respondent is eligible to progress to pay level Senior Constable 2.10 on 28 September 2019; (e) Thereafter, the Second Respondent is to progress pay levels in accordance with industrial arrangements. [10] I note that on 16 July 2018 an order was made by the Tribunal prohibiting the publication of any information which may identify any persons named in the material before the Tribunal who are not police officers acting in their official capacity. -- 5 of 5 --