DA v Deputy Commissioner Martin [2018] QCAT 10

CITATION: DA v Deputy Commissioner Martin [2018] QCAT 10 PARTIES: DA (Applicant) v Deputy Commissioner Peter Martin (Respondent) APPLICATION NUMBER: OCR008-17 MATTER TYPE: Occupational regulation matters HEARING DATE: 17 October 2017 HEARD AT: Brisbane DECISION OF: Member Olding DELIVERED ON: 15 January 2018 DELIVERED AT: Brisbane ORDERS MADE: The decisions of Deputy Commissioner Martin under review are confirmed. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where officer pursued and collided with minor riding a motorcycle; used inappropriate language; and was untruthful in a discipline interview - where previous disciplinary history – consideration of appropriate sanction Crime and Corruption Act 2001 (Qld), s 19A, s 219H Police Service Administration Act 1990 (Qld), s 1.4 Queensland Civil and Administrative Tribunal Act 2009, s 3(c), s 20 Aldrich v Ross (2001) Qd R 235 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161 DA v Deputy Commissioner Stewart (No 2) -- 1 of 13 -- 2 [2013] QCATA 162 Hardcastle v Commissioner of Police (1984) 53 ALR 593 APPEARANCES: APPLICANT: DA RESPONDENT: Deputy Commissioner Peter Martin REPRESENTATIVES: APPLICANT: DA appeared in person RESPONDENT: represented by Scott McLeod of Counsel instructed by the Queensland Police Service Legal Unit REASONS FOR DECISION [1] Until his dismissal on disciplinary grounds, DA was a Senior Constable in the Queensland Police Service (QPS). [2] The Respondent Deputy Commissioner dismissed DA after making findings that DA: (a) drove a motor vehicle in a manner which recklessly exposed himself and other road users to unjustifiable risk of injury; (b) made inappropriate comments and remarks to a member of the public; and (c) was untruthful during a discipline interview. [3] The three findings are inter-related. The inappropriate remarks were uttered at the end of a pursuit in which the reckless driving in finding (a) occurred. The finding of untruthfulness relates to statements made by DA in the course of an interview about the reckless driving incident. [4] DA accepts findings (a) and (b). However, he has applied for review of finding (c) and of the sanction of dismissal. [5] The events that are the subject of the current proceedings occurred in early August 2014. In making his decision to dismiss DA, the Deputy Commissioner referred to earlier disciplinary history relating to conduct in 2007 and 2008. -- 2 of 13 -- 3 Nature of review [6] The Tribunal’s review is by way of rehearing to produce the correct and preferable decision.1 [7] The task of the Tribunal is to stand in the shoes of the Deputy Commissioner and make the decision afresh based on the evidence before the Deputy Commissioner.2 [8] The evidence before the Deputy Commissioner included transcripts of disciplinary interviews, statements of various witnesses, photographs and audio and video recordings. [9] Because they will be relevant to the question of sanction, it is necessary to consider the background to each of the findings, even though findings (a) and (b) are not contested. Reckless driving and inappropriate remarks [10] This summary, extracted from the Deputy Commissioner’s findings and reasons, relates to the reckless driving: At about 8-00am on 1 August 2014, you were off duty and drove your private vehicle to [an address] to collect you (sic) daughter for school. With your daughter seated in the front passenger seat of your car, you drove along . . . Avenue where you observed an off road motorcycle or pit bike as you refer to it, travel past you in the opposite direction. You performed a u- turn and drove after the motorcycle. After a brief verbal exchange with the rider on the side of the road, you performed another u-turn and followed the rider along . . . Avenue in the opposite direction. A short time later you followed the rider onto a vacant block of land before returning to the road. This incident continued until a collision occurred between you and the motorcycle in the driveway of a residence . . . [11] DA maintains, and I accept, that in the “brief exchange” he identified himself as a police officer. [12] A video recording made by a by-stander, in the final stages of the pursuit, shows DA’s vehicle pursuing a small motorcycle turning into the street in which the collision occurred, with the tyres of his vehicle screeching on the turn, and then proceeding a short distance down the street. His vehicle was pursuing the motorcycle at a close distance. The motorcycle then turned onto the nature strip and started to proceed back in the opposite direction. DA reversed his vehicle and then accelerated into a driveway, intending to prevent the rider from escaping. The motorcycle collided with DA’s vehicle. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 2 Crime and Corruption Act 2001 (Qld), s 219H(1). Under s 219H(2), leave may be granted to adduce fresh, additional or substituted evidence. No such leave was not sought. -- 3 of 13 -- 4 [13] The front wheel of the motorcycle became wedged under the right, front wheel of DA’s vehicle. The video shows that it was sufficiently wedged that another youth was unable to immediately dislodge it, and photographs show marks on the motorcycle’s front wheel. After some wriggling of the motorcycle, it was dislodged a little later by the same youth. [14] It is clear from the video that DA would have been able to tell that the rider was a minor. Indeed, in his telephone call to police communications, DA refers to the rider as “that fuckin’ [surname omitted] boy”.3 It was later established that the boy was 13 years of age at the time of the incident. [15] In the commotion that followed immediately after the collision, DA uttered the following to the rider of the motorcycle: Get the fuck off your bike; Get off cunt; and Get off you little shit. [16] By way of further context for DA’s disciplinary interview that evening, as discussed further below, I note that agitated shouting and swearing followed, both by DA and members of the boy’s family, as DA attempted to prevent the boy decamping and the motorcycle being removed, and family members protested about his conduct. However, the utterances the subject of finding (b) occurred immediately after the collision, before the family members intervened. [17] DA’s daughter remained in the vehicle and witnessed the incident. [18] DA pleaded guilty to a charge of dangerous operation of a motor vehicle. His driver’s licence was suspended for 6 months and he was fined $2000. No conviction was recorded. The allegedly untruthful statements [19] The Deputy Commissioner maintains that, in his responses to interview questions, DA was untruthful in asserting that: a) his vehicle came to a halt approximately 6 metres into the vacant land, when in fact that occurred over 20 metres into the vacant land; and b) within the last few weeks before the incident he had received information about a stolen motorcycle through the QPS email system, when inquiries established that no such email was sent to DA. [20] DA says that he was not deliberately untruthful. In relation to the distance travelled onto the vacant land, he qualified his statements in the interview 3 Other evidence confirms that the boy’s family is well-known to the local police. -- 4 of 13 -- 5 by saying that could not be precise. In respect of the email, there was in fact an email about a stolen motorcycle circulated to some officers, so he says he must have seen it even though the email did not come to his own QPS inbox. [21] To determine whether DA was deliberately untruthful, it is necessary to examine his various statements in more detail against the facts as established by the evidence. The distance travelled issue [22] Senior Constable Jaclyn Burge is attached to a forensic crash unit. She provided a statement outlining her substantial training in crash investigation and her investigations at the scene to which she appended a “forensic map”. [23] The map records tyre markings indicating that DA’s vehicle travelled over 20 metres into the vacant land, in fact almost 25 metres at the furthest point, measured on a straight-line basis. There are also copies of photographs showing tyre marks. [24] Based on this evidence, I find that DA’s vehicle travelled 20-25 metres into the vacant land. [25] DA’s comments about the distance travelled in his formal interviews by Detective Senior Sergeant Philip Hurst include: DA: . . . so I’ve pulled up, I’ve just driven across the road and driven up into the vacant land not very far at all . . . PH: . . . ok, so how far in this land did you go? DA: Me? PH: Yeah DA: Oh probably no more than 6 metres maybe, didn’t really commit that to memory like, - PH: . . . ok, so 6 metres in and you came directly U/I DA: Oh well about 6 metres I was U/I PH: . . . about 6 metre, - DA: . . . I’m not sure, I couldn’t be precise on that- PH: Ok so that was seven metres off the roadway into the vacant land? DA: . . . something like that yeah, its quite a big open area [26] In submissions to the disciplinary hearing, DA stated “I stayed only approximately 6-7 metres from the road.” In a footnote to that statement, DA added: “Although I cannot be precise on that (see page 26 of transcript of disciplinary interview”). This comment was made in the context of DA disputing whether he had travelled “through” the vacant land, a particular not included in the final findings. [27] I accept DA’s submission that he was stressed and anxious when undergoing the disciplinary interview. It is reasonable to draw this -- 5 of 13 -- 6 inference, especially since the interview followed the long previous disciplinary process. I also accept his attention to another callout on police duties between the time of the incident and the first interview may have had some impact. [28] Further, DA indicated on more than one occasion in the disciplinary interview that he could not be precise about the 6 metre estimate. I also note that his perception of the distance travelled was formed during what I infer was a heightened emotional state during the incident when consideration of the distance travelled would not have been part of DA’s focus. [29] Nevertheless, DA stated that he drove “not very far at all” onto the land and repeatedly in the interviews, and subsequently in the less pressured context of preparing or reviewing written submissions, estimated that distance at around 6 or 7 metres. [30] Even taking into account the factors indicated, the difference between the stated estimate of 6-7 metres and the actual distance of well over 20 metres – some three times the repeated estimate – is so great that I am unable to accept that DA was truthful in this evidence. I infer that he understated the distance to support his assertion that he did not travel “through” the vacant land. [31] Having due regard to the potentially grave consequences for DA, nevertheless I am comfortably satisfied that he was deliberately untruthful in respect of the “distance travelled” issue.4 It follows that I must confirm the finding on this issue. The email issue [32] After the incident, DA said he observed an officer attending at the scene produce a photograph of a motorcycle and speculate that the motorcycle ridden by the boy might be the motorcycle that had been reported stolen. [33] DA maintained in an interview that evening that he had received an email about a stolen pit bike and that when he saw the juvenile on the motorcycle he thought it might be the stolen motorcycle. He specifically confirmed that he read the email on the QPS email system. [34] DA now accepts that he did not such receive an email. He says that he was mistaken about receiving an email but nevertheless he was aware of an email about a stolen motorcycle. [35] As DA emphasised at the hearing, “there was an email”. [36] The email, which included an image of a stolen motorcycle, was sent on 30 July 2014 at 3-18pm to police officers in the region, but not to DA. It read, in part: 4 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. -- 6 of 13 -- 7 During your patrols please BOLO [be on the look out] for the below trail bike that was stolen from . . . overnight on 28th/29th July [37] When questioned further about the email, DA was unable to provide further detail. He said he could not recall what format the email took. He said, though, that he saw it “within the last few weeks” before the incident and later in the interview confirmed that it was “a couple of weeks ago”. [38] Essentially, DA’s submission is that he must have been mistaken about receiving the email, but “there was an email”. He was, he says, not deliberately untruthful. [39] In support of this contention, DA points out that he was aware that electronic searches for the email would be undertaken – indeed, he was warned of this in the disciplinary interview – but still maintained that he had seen an email. [40] A witness making a truthful statement would not be focussed upon what investigations might be undertaken to disprove his evidence. Once confronted in the interview with the prospect of no email being located, DA might have either recanted or maintained his earlier statement. Either course would have risks for perceptions of his credibility. That he chose to maintain his earlier statement in the face of the risk of no email being found, rather than directly contradict his own statement, does not assist me in determining whether his statements were merely mistaken or deliberately untruthful. [41] The difficulty with DA’s “there was an email” submission is that the email was not sent two or three weeks before the incident as DA stated in the interview, but rather less than two days before the incident. [42] Additionally, during the incident, DA telephoned police communications to seek assistance. He referred to the juvenile rider being unlicensed and the bike being unregistered and uninsured. Similarly, in the course of trying to restrain the boy, DA can be heard on recordings yelling at the boy about being unlicensed and the bike being unregistered and uninsured. At no point does he refer to the bike being suspected of being stolen. I give these aspects limited weight, though, as the comments were made in the heat of the moment. [43] However, even allowing for the particular stress of the investigation as noted earlier, it stretches credibility too far to suggest that DA had seen the 30 July 2014 email less than two days earlier, but could not remember when or in what circumstances he saw it, or in what format it delivered the information about the stolen motorcycle, and mistakenly thought that he had seen it up to two to three weeks earlier. [44] Again, having due regard to the potentially grave consequences for DA, I am comfortably satisfied that he was deliberately untruthfully in respect of the “email” issue, which I infer was for the purpose of seeking to justify, -- 7 of 13 -- 8 excuse or provide context for his conduct. It follows that I must confirm the finding on this issue. [45] DA does not dispute that findings (a) and (b) constitute misconduct. I am satisfied that this concession was properly made and finding (c), which I have confirmed, also constitutes misconduct. The conduct in each case was of a serious nature; related directly or indirectly to DA’s conduct as a police officer, rather than as a private citizen; and may readily be described as “disgraceful, improper or unbecoming an officer” or as not meeting “the standard of conduct the community reasonably expects of a police officer”.5 [46] It therefore remains to consider the appropriate sanction. However, before doing so, I address some aspects relevant to this task. Significance of the Deputy Commissioner’s views [47] In Aldrich v Ross6, the Court of Appeal noted: [42] . . . There is considerable force in the observations of Chesterman J concerning the role of the Commissioners of the Police Service, their managerial role and their knowledge of the needs of the police force. However it does not follow that a Commissioner would bring to bear the same perception of public interest as that of an outsider. The purpose of misconduct and discipline proceedings within the Police force has been identified in a number of decisions including Hardcastle v Commissioner of Police, Police Service Board v Morris and Re Bowen. The protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties are the primary purposes of such proceedings. The provision of some outside surveillance is hardly surprising in such a context. [43] . . . The provision of a system which permits one external public review of the disciplinary decision is not only the protection against a wrong or unacceptable decision, it is also the provision of a source which can be expected to bring a perspective to bear from the public point of view. That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force. To do so would be consistent with the observations of Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission at least so far as non-jurisdictional questions are concerned, and particularly when the evidence upon which the appeal tribunals act is essentially the same as the evidence below. [45] . . . If there is no serious contest as to the primary facts (as was essentially the position here), it is still necessary for the Misconduct 5 Police Service Administration Act 1990 (Qld), s 1.4. 6 (2001) Q d R 235. -- 8 of 13 -- 9 Tribunal to make up its own mind on the facts and on the inferences to be drawn from them, though it might well see them the same way as the original decision-maker if that person's view of the facts is ascertainable . . . If the Misconduct Tribunal has the same view of the facts and inferences as the original tribunal, it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the Misconduct Tribunal. [48] Accordingly, it is appropriate to give considerable weight to the views of the Deputy Commissioner. However, ultimately the Tribunal must make its own decision. DA’s police and disciplinary history [49] DA was sworn in as a police officer in April 2003. [50] He was dismissed in February 2010, but that dismissal was set aside and replaced by a period of suspension, with the result that following the lengthy appeal process DA resumed duties in October 2013. A summary of this earlier disciplinary history follows. [51] The conduct that was the subject of the earlier disciplinary proceedings was alleged to have occurred in 2007 and 2008. The conduct ultimately found to be substantiated was that DA: a) breached domestic and family violence orders that DA’s then estranged, now former, wife had taken out against him (in total, three breaches); b) lied when he told a supervising officer that he had not accessed his estranged wife’s email account; and c) provided false and misleading information in a statutory declaration to his estranged wife. [52] The breaches of the protection orders involved no actual or threatened violence and in criminal proceedings the prosecution supported a submission that no conviction should be recorded and that a good behaviour bond should be imposed, which was duly ordered by the court. [53] The ensuing police disciplinary hearing, Tribunal review and appeals to the Appeal Tribunal and the Court of Appeal, culminated in the Appeal Tribunal determining the appropriate sanction.7 In doing so, the Appeal Tribunal took into account the context of the offending, which included an extraordinarily bitter marriage breakdown involving numerous and persistent complaints by DA’s estranged wife and that at the time of the breaches of the protection orders DA was suicidal and had been treated for an adjustment reaction with a depressed mood. 7 DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162. -- 9 of 13 -- 10 [54] The Appeal Tribunal ordered a sanction of suspension for 18 months effective from 2 February 2010. The period of suspension was fully served by the time this order was made on 25 July 2013. DA returned to duty in October 2013. [55] Aside from the current matters and this earlier history, there is no evidence that DA has any other criminal or disciplinary history. Indeed, he has received a commendation for meritorious conduct.8 Consideration of sanction [56] The purposes of disciplinary proceedings are to protect the public, to uphold ethical standards and to promote and maintain public confidence in the police.9 The purposes are protective not punitive.10 [57] In considering the appropriate sanction, I must bear in mind these purposes, having regard to the seriousness of the conduct, mitigating factors and any other relevant factors, including DA’s police service history. Consistency in decision-making is also important.11 Seriousness of the conduct [58] The reckless driving conduct is not at the upper end of seriousness of conduct, but is nevertheless serious in the context of the objective of protection of the public and the reputation of the QPS. There is an obvious risk of serious injury or death from a collision with a motorcycle even at relatively slow speeds. The pursuit put a child at risk and could have ended in a tragedy. [59] This conduct reveals a serious lack of judgment. Putting the boy at risk in this way was both unnecessary and disproportionate to his offending. [60] The lack of judgment revealed by the reckless driving conduct, considered in its context, raises a serious concern for the safety of the public and in relation to maintenance of public confidence in the police service. [61] In respect of the swearing at the scene, I am mindful of not over-reacting and making due allowance for the stressful, adrenaline-fueled circumstances in which DA found himself as well as the difficulties faced by police in dealing with offenders who may themselves exhibit highly offensive behaviours. Reasonable members of the public would not expect police to be angelic and would make due allowance for the difficult circumstances in which their work is commonly carried out. 8 Details of the circumstances of the commendation were not available at the Tribunal hearing and DA did not wish to pursue an opportunity to obtain some elaboration. I have inferred that the commendation was for meritorious conduct. 9 Crime and Corruption Act 2001 (Qld), s 219A 10 Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597. 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(c). -- 10 of 13 -- 11 [62] However, strong swearing of this kind directed a child and in the presence of his DA’s daughter, again reveals a disturbing lack of self-control and judgment and, in my view, is outside the range of behaviour that the public would reasonably expect from their police service. In that regard, I note that the swearing particularised in finding (b) started immediately after the collision. DA was not at this point responding in kind to provocatory comments from adult family members. [63] Overall the inappropriate language finding points to a concern about DA’s impact on public confidence in the police service. [64] The dishonesty findings are of a serious nature. They occurred in the context of a formal disciplinary interview. Dishonesty in such a context raises a serious concern about DA’s commitment or capacity to upholding standards of integrity when under pressure. Mitigating factors [65] Although he had undertaken online training, DA noted that he had not been given face-to-face training in police pursuit policy and that, although he was first appointed in 2003, because of the earlier disciplinary charges and appeals, he had relatively little recent experience as a police officer. [66] I take this into account but do not give it substantial weight. The concern with DA’s reckless driving is not based on failure to observe police procedures. Rather, it is based on the lack of judgment and self-control in pursuing the motorcyclist in a way that put a boy’s wellbeing at risk, especially in the context of offending that, although not trivial, was of a relatively low-level nature. [67] DA expressed remorse and regret for the reckless driving conduct and the inappropriate language. He pleaded guilty to the reckless driving offence. Remorse weighs in favour of a less serious sanction as it suggests insight into the behaviour. [68] It is also relevant to the dishonesty findings in particular that DA had endured a lengthy and no doubt highly stressful earlier disciplinary and review process involving multiple hearings and uncertainty over a period of years. While it does not excuse the conduct, it provides a context to DA’s response to again being confronted with difficult and stressful experience of a disciplinary interview. [69] I also take into account that DA’s reckless driving occurred as a result of over-zealousness. He was not motivated by personal gain or other factors. Nor did he respond with any violence or other inappropriate behaviour beyond the inappropriate language. [70] Also in DA’s favour is that, aside from the earlier disciplinary matters, which as noted occurred in a particular context, and the matters under consideration in this review, DA has an otherwise unblemished record and his service has been recognised by a commendation. -- 11 of 13 -- 12 Other relevant factors [71] The Deputy Commissioner observed in his reasons: It is of some concern that you have been found to have committed misconduct in 2014, only 10 months after your return to work from findings made against you in 2010 . . . Your previous disciplinary proceedings of misconduct on 2 February 2010 . . . related to you breaching a domestic violence order, untruthfulness and providing false and misleading information in a statutory declaration to your estranged wife at the time. It would appear that despite the outcomes of this previous wrongdoing, you continue to make poor decisions which ultimately affects your ability to meet the standard of conduct expected of a police officer. [72] I agree generally with those observations. Other decisions on sanction [73] While it is important for the Tribunal to strive to the extent possible for consistency in decision-making, and there have been numerous decisions on sanctions in police disciplinary matters, no two cases are the same. Previous cases are therefore of limited assistance. [74] Nevertheless, I have considered various cases brought to my attention by the parties and my own researches. [75] I have particularly considered Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161. [76] There the police officer engaged in an unauthorised pursuit at excessive speeds – approximately 225 kilometres per hour in a 100 kilometre per hour speed zone; and 150 to 160 kilometres per hour in a 60 kilometre per hour zone. Further, this was not the first time the officer had been involved in a dangerous pursuit. [77] The pursuit occurred in the early hours of the morning; and while the officer reached these speeds he ultimately complied with the pursuit policy by desisting from the pursuit. There were no dishonesty charges in this matter. In fact, there is a specific observation that the officer conducted himself in a forthright manner. [78] Nevertheless and with great respect, the sanction of a two-point pay reduction for a period of nine months in the Eaton case is, in my view, surprisingly lenient. In any case, ultimately I have to reach my own decision on the different facts of the current matter. The Eaton case is not sufficiently comparable to the current matter, where consideration of three different findings is required, to be helpful. Overall conclusion on sanction [79] In determining the appropriate sanction, I have not taken as my starting point whether dismissal should be maintained. Rather, I have considered -- 12 of 13 -- 13 what sanction or combination of sanctions would serve the objects of the sanction regime, having regard to the range of available sanctions, which include suspension, pay reductions, fines and/or requirements for counselling and training. [80] While there are a number of mitigating factors, which I have taken into account, DA’s conduct and history reveals a serious lack of judgment and self-control going directly to the safety and wellbeing of the public and the reputation of the QPS, and also leaves in doubt his capacity and willingness to act with integrity when under pressure. [81] I take into account the views of the Deputy Commissioner, but reaching my own decision on the matter after weighing up the factors outlined above, I conclude that DA’s continued service as a police officer is inconsistent with the objective of protecting the public and maintaining confidence in the police service. No other sanction is, in my view, could satisfactorily serve the objects of the disciplinary provisions. [82] It follows that I must confirm the sanction of dismissal. [83] I reach this conclusion firmly, but with the hope that DA will find a vocation more suited to his temperament and talents and in that regard record that I make no adverse observations regarding DA’s motivations or tendencies outside the stressful and difficult professional life of a police officer. -- 13 of 13 --