Crime and Corruption Commission v Inspector Jeffries [2017] QCAT 331

CITATION: Crime and Corruption Commission v Inspector Lee D Jeffries and Anor [2016] QCAT 331 PARTIES: Crime and Corruption Commission v Inspector Lee D Jeffries (First Respondent) Aaron Cole (Second Respondent) APPLICATION NUMBER: OCR236-16 MATTER TYPE: Occupational regulation matters HEARING DATE: 8 June 2017 HEARD AT: Brisbane DECISION OF: Member Ryan DELIVERED ON: 26 September 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Inspector Lee D Jeffries dated 25 November 2016 is set aside and it is substituted with the decision set out in 2. (i) Senior Constable Aaron Cole’s salary increment from Senior Constable pay point 2.3 to 2.4, is deferred for a period of two years commencing from 1 January 2017. (ii) Senior Constable Aaron Cole is eligible to progress to Senior Constable pay point 2.4 from 1 January 2019 subject to having completed the normal industrial requirements of the Queensland Police Service for progression to that pay point. (iii) Senior Constable Aaron Cole is to undertake a one day training session on the Service’s pursuit and urgent duty driving policies and procedures within six months of this order (or such longer time as necessary for the Service to organise delivery of such training), such training to be delivered by the -- 1 of 10 -- 2 Service Driver Training Wing. 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 Commission Act 2001 (Qld) S 219A, s 219G, s 219H Police Service Administration Act 1990 (Qld) S 1.4, s 7 Police Service Discipline Regulations 1990 (Qld), Reg 1(f), reg 3, reg 10(a), Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 21(2), s 24(1)(b) Aldrich v Ross [2001] 2 Qd R 235 Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 1761 Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 Crime and Misconduct Commission v Barnett and Eaton (No 2) [2011] QCAT 161 Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 530 Hardcastle v Commissioner of Police (1984) 53 ALR 593 Medical Board of Australia v Martin [2013] QCAT 376 Police Service Board v Morris (1985) 156 CLR 397 Queensland Police Service v Compton (No 2) [2011] QCATA 246 Rohweder v Acting Assistant Commissioner Keating [2016] QCAT 347 This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). APPEARANCES: FIRST RESPONDENT: SECOND RESPONDENT: Queensland Police Service Legal Unit Queensland Police Service Legal Unit, Mr Troy Schmidt, Counsel -- 2 of 10 -- 3 REASONS FOR DECISION [1] Mr Aaron Cole is a Senior Constable of Police. At the time the matter relating to his conduct arose, in March 2016, he had more than 8 years’ experience in general duties policing. On 23 November 2016, Inspector Jeffries (‘the decision-maker’) found a matter of misconduct substantiated against Senior Constable Cole, namely: Matter One That on the 2nd day of March 2016 at Caboolture and Brisbane your conduct was improper in that you drove a police service vehicle in a manner which recklessly exposed yourself and other road users to unjustifiable risk of injury. Section 1.4 of the Police Service Administration Act 1990 and Section (1)(f) of the Police Service (Discipline) Regulations 1990; section 10 (Driving of Service Vehicles) of the Traffic Manual and sections 2 (Personal Conduct),and 10 (Performance of Official Duties)1 [2] Senior Constable Cole accepted, in submissions to the decision-maker, the conduct as particularised, but did not accept that it amounted to ‘misconduct’. Rather he asserted it ‘…was a breach of policy, warranting discipline, but that it falls short of the stigma of misconduct’.2 [3] In his ‘Notice of Formal Finding (Substantiated)’ dated 25 November 2016 and ‘Findings and Reasonings’ dated 23 November 2016, the decision- maker, Inspector Lee Jeffries, the First Respondent here, found Senior Constable Cole’s conduct did fall within the relevant definition of misconduct in Section 1.4 of the Police Service Administration Act 1990 (Qld). The section includes conduct which is: (a) disgraceful, improper or unbecoming of an officer. By way of sanction, the decision-maker ordered that the Second Respondent be formally reprimanded, pursuant to the Police Service Administration Act 1990 (Qld) and the Police Service (Discipline) Regulations 1990 (Qld). [4] The Crime and Corruption Commission (‘CCC’) has applied to the Tribunal for review of the decision on sanction only. The Joint Submissions referred to the finding in Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton3 that the finding that a charge is substantiated and the imposition of a sanction are two separate decisions, each giving rise to rights of review. In particular, the CCC argued in its application that the sanction of ‘reprimand’ pursuant to reg10(a) of the Police Service (Discipline) Regulations 1990 (Qld) is manifestly inadequate having regard to the purposes of disciplinary proceedings, the seriousness of Senior Constable Cole’s conduct as 1 Material provided pursuant to s 21(2) QCAT Act, page 23. 2 Ibid, Submissions for the Subject Officer, pg 46, par 17. 3 [2011] QCAT 1761, [12] (Hon JB Thomas), cited Joint Submissions and Agreed Statement of Facts, par 27. -- 3 of 10 -- 4 substantiated by the decision-maker, and is not the correct and preferable decision as to discipline.4 [5] At a Compulsory Conference on 6 March 2017, a Senior Member of the Tribunal directed that the parties file a joint statement of agreed facts and a joint submission as to the appropriate sanction, together with any authorities in support of the submission. The parties have complied with that direction. The cover letter to the Tribunal from the Queensland Police Service Legal Unit, noted that the proposed sanction was beyond the disciplinary jurisdiction of the First Respondent under the Police Service Administration Act 1990 (Qld) and the Police Service (Discipline) Regulations 1990 (Qld) and he could not therefore consent to the making of the Order proposed in the Joint submissions. However, the First Respondent accepted the factual accuracy of the submissions, and no submissions were made in response. The First Respondent would abide by the decision of the Tribunal. The Joint Submissions and Consent Orders filed by all parties were signed by the representatives for the Applicant and the Second Respondent. [6] I have considered s 219G and s219H of the CCC Act, and s 17 to s 20 of the QCAT Act which provide that on review, the Tribunal must make the correct and preferable decision on the evidence before the decision- maker, and that the decision must be the Tribunal’s own independent decision. [7] For reasons which follow, I have concluded that the sanction imposed by the decision-maker is inadequate and that the correct and preferable decision is to apply a sanction in accordance with the joint submissions of the parties, and their draft consent orders. These are that the decision of the decision-maker/First Respondent be set aside in respect of the sanction determined for the Second Respondent, and that the Tribunal substitute its own decision pursuant to s 24(1)(b) of the QCAT Act. That sanction is that the Second Respondent, Senior Constable Cole, has his pay-point frozen at the current level (2.3, attained on 26 December 2016) for a period of two years, commencing from 1 January 2017 and concluding on 1 January 2019. After that time, he may progress to pay- point 2.4 subject to the fulfilment of relevant industrial requirements. In addition, he will be required to undertake a one-day training session on the Service’s pursuit and urgent driving policies and procedures, to be delivered by the Service’s Training Wing. The conduct which is the subject of the disciplinary charge [8] The facts concerning the conduct of the Second Respondent in respect of Matter 1 have been agreed by the parties, and have been relevantly summarised in the parties’ joint submissions: 4 Applicant’s Application to review a decision, p4. -- 4 of 10 -- 5 a) On 2 March Senior Constable Cole, the senior officer in an unmarked police service vehicle, drove through four intersections against red traffic lights without completely stopping or without activating the emergency lights and siren in three of those intersections; b) Although Senior Constable Cole indicated to Communications that he was not ‘in pursuit’ or engaged in ‘urgent duty driving’, he did not activate emergency lights and yet drove at speeds of 144 kph in a 60k zone, where the road was wet, 161 kph in a 100k zone, and 83 kph in a 40k zone. c) He followed a vehicle, but did not attempt to intercept the vehicle, including not activating the emergency lights and siren, despite being lawfully able to do so, whilst indicating he did not want the vehicle to be aware of police presence; d) He described this incorrectly to police communications as a ‘tactical follow’; e) He continued the pursuit despite having inadequate radio communications, so he could not speak to other police or the relevant communications centre; f) The conduct was extended in time and geographically – for 25 minutes over approximately 33ks; g) Moreover, these actions constituted repeated breaches of Queensland Police Service policy, demonstrating a disregard for that policy and relevant legislation. [9] A further significant factor was that Senior Constable Cole had on two previous occasions, refreshed his knowledge of, and on one occasion, received managerial guidance on, the appropriate conduct during pursuits or urgent duty driving, including the use of lights and sirens during urgent duty driving. The first event was in 2013, the second, out of which arose two incidents, was in June 2015, and guidance was provided in February 2016. That guidance was on exactly the same issue as arose in this matter under consideration, activation of emergency lights whilst engaging in urgent duty driving and/or pursuit, and the requirement to give accurate information to the Pursuit Controller. These factors were seen in the joint submissions as being directly relevant to Senior Constable Cole’s ‘intrinsic character’ and ‘state of mind’,5 and to his level of knowledge at the time of the conduct under consideration. 5 Joint Submissions and Statement of Agreed Facts, par 7, citing Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690, [31] (Hon JB Thomas). -- 5 of 10 -- 6 The CCC Act, the Police Service Administration Act 1990 (Qld), the Police Service (Discipline) Regulations 1990 (Qld) and Disciplinary Proceedings (Police Officers) Policy 2013/54 [10] Section 7.4(3) of the Police Service Administration Act 1990 (Qld) sets out the range of disciplinary action which may be taken. Without limiting the range of disciplines that may be imposed…. by way of disciplinary action, such disciplines may consist of the following — (a) dismissal; (b) demotion in rank;………(d) reduction in an officer’s level of salary;……….. [11] A wide discretion is allowed to the decision maker. The range of disciplines which may be imposed is not limited, and may consist of dismissal, demotion, reprimand, reduction in salary level. There is no ‘and’ or ‘or’ between the possibilities listed. I construe the section as providing that any of those disciplines or any combination of them or other disciplines which may be imposed by the decision-maker are open under the section. Seriousness of the conduct [12] The original decision maker referred to the conduct as being ‘..in the medium range on a scale of seriousness in terms of consequences…’6 and he indicated he based this conclusion on a number of findings including: ‘..the protracted time and distance of the event; your continued transgressions of driving conduct requirements; the impacts of an ineffective radio communications capability; lack of appropriate sound judgement and decision-making over the event; your supervisory position of a junior officer; and community and organizational expectations of officers in urgent driving…’. [13] The joint submissions focus not only on these factors, but also on the recent managerial guidance provided to the Second Respondent on the policy and procedures surrounding his subsequent infractions. This is a significant factor to which I have given weight in my assessment that the sanction of a reprimand did not reflect the seriousness of the misconduct. The misconduct is the subject of the sanction, rather than the consequences which in fact occurred. However, the potential adverse consequences of the conduct were noted in the joint submissions, and by the original decision maker who observed that it was the time of day (the events commenced at 1.47 am) and the consequent reduced traffic, which reduced the risk of injury to any person, not Senior Constable Cole’s exercise of good professional judgment. It was only a matter of serendipity that the most serious possible consequences did not eventuate. 6 Material provided pursuant to s 21(2) QCAT Act, Inspector Jeffries Findings and Reasonings, Line 388-9. -- 6 of 10 -- 7 Purposes of disciplinary proceedings [14] I have considered the purposes of Police disciplinary proceedings in Queensland in making this decision. Those purposes include protection of the public,7 maintenance of proper policing standards,8 deterrence of future misconduct, and the preservation of public confidence in the police service.9 Disciplinary findings and sanctions should reflect the disapproval appropriate to the relevant conduct.10 It aims to impact the behavior of both the individual officer, and of all officers.11 The High Court has noted public confidence in the integrity of the members of the police force is crucial to its effectiveness, and internal disciplinary authority is a key element of ensuring that an individual’s behavior does not undermine public confidence.12 Senior Constable Cole’s misconduct has the potential to impact on these principles. A sanction must be adequate to reflect the community disapproval of the impugned conduct and to, as a consequence, deter the officer and others from such conduct. Disciplinary proceedings are not punitive in nature but they must amount to the imposition of ‘discipline’ according to each individual case. Comparable decisions [15] The joint submissions referred me to several relevant published decisions, and noted points of similarity and difference between the conduct considered in those decisions and Senior Constable Cole’s conduct. [16] In Crime and Misconduct Commission v Barnett and Eaton (No 2),13 the subject officer drove at excessive speeds - 225 kph on the Bruce Highway in a 100kph zone, 150-160 kph in a 60 kph zone, engaged in unauthorised pursuit and failed to activate lights and siren, and this constituted driving without due care and attention. This conduct started before 1am, a similar time to the Second Respondent’s, but was over less than half the distance. Mr Eaton had been involved in another police chase some 6 years earlier, which had resulted in two deaths. There had been a coronial enquiry and Mr Eaton had had a serious warning. [17] The Joint submissions referred in particular, to the Tribunal having noted that quick decisions are required by operational officers, and the conduct was described as ‘overzealousness in performing duties’, rather than being dishonest or going to bad character. On the other hand, it noted the 7 Aldrich v Ross [2001] 2 Qd R 235, 247; see also CCC Act, s 219A and Police Service (Discipline) Regulations 1990, reg 3. 8 Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597; see also CCC Act, s 219A and Police Service (Discipline) Regulations 1990, reg 3. 9 Aldrich v Ross [2001] 2 Qd R 235, 247. 10 Police Service Board v Morris (1985) 156 CLR 397; Queensland Police Service v Compton (No 2) [2011] QCATA 246, [25]. 11 Ibid. 12 Police Service Board v Morris (1985) 156 CLR 397, 412 13 [2011] QCAT 161. -- 7 of 10 -- 8 conduct showed ‘an element of recklessness’, and police pursuit policy was required to be implemented appropriately.14 [18] The joint submissions noted both Senior Sergeant Eaton and Senior Constable Cole had travelled at excessive speed, without activating lights and siren, but Senior Constable Cole had travelled through a number of red lights. Further he had had more recently (early 2016) been made aware of the proper conduct in those circumstances, whereas for Senior Sergeant Eaton, it had been six years earlier. The sanction in Eaton’s case was a reduction in his salary by two pay points for 9 months. [19] In Crime and Misconduct Commission v Chapman & Anor,15 the officers had pursued a motorcycle with a pillion passenger. The misconduct included failure to notify the radio operator as soon as possible of the commencement of the pursuit, failure to turn off emergency warning equipment, failed to ensure the vehicle was pulled over and stopped at the first safe position and failed to conduct a safety check of the police vehicle after terminating the pursuit. The pursuit was carried on for 660 metres after the officer had been advised to terminate it, and resulted in a fatality and serious injury. [20] A two pay point reduction in salary was imposed by the Tribunal. It found the officer’s conduct together with the fact it had resulted in a death made it more serious than in Eatons’ case. His pleas of guilty, a five-year delay (taken into account as a factor in mitigation) and exemplary prior service record were also taken into account. Comparing this with Senior Constable Cole’s circumstances, there has been no delay, and no aggravating circumstances such as death or serious injury. [21] Rohweder v Acting Assistant Commissioner Keating16 concerned an officer of 20 years’ experience who allegedly failed to stop at a red traffic light, provided a misleading report, and engaged in unjustified pursuit. At the time of these incidents, he was on suspension for another disciplinary driving matter (a high-speed pursuit in breach of policy) for which he had been issued a two pay-point reduction for 12 months. The Tribunal was satisfied that his demotion from Senior Constable 2.9 to Constable 1.6 for three months, together with a condition that he complete a positive Performance Development Agreement for the period and had no further breaches, was appropriate. This was distinguishable from Senior Constable Cole’s matter, in the Joint submissions because Senior Constable Cole is a less experienced officer (over 8 years’ experience) and was not subject to another sanction at the time of the conduct. [22] Ultimately, no two cases are exactly alike, and each case turns on its own facts. The joint submissions did not suggest which of the comparable cases was most relevant in the view of the parties. All have a number of 14 Ibid, [60] and [63]. 15 [2011] QCAT 530. 16 [2016] QCAT 347. -- 8 of 10 -- 9 factors which align with the matter under consideration here, and it is notable that in each of those matters, the sanctions applied were more onerous than a reprimand. Each of the officers concerned incurred financial consequences, by way of demotion, or pay-point reductions for varying periods. These align with the recommended consent orders by the parties. The indication of Senior Constable Cole’s attitude to the occurrences can be derived from the fact he has abandoned his dispute that his conduct amounted to ‘misconduct’. This, together with his acceptance of the joint submission on agreed facts and the proposed sanction may show some insight into the nature of his behaviour and professional judgment. [23] I have considered and accepted the joint submission that previous decisions of the Tribunal have held that where parties jointly propose a sanction in disciplinary proceedings, the Tribunal ought not to depart from it just because it forms a different view, unless the recommended course falls outside the sanction range for the particular conduct and circumstances.17 Considering the seriousness of the misconduct under consideration here, together with the lack of factors of aggravation, I am satisfied that it does fall within the range of conduct and sanctions submitted by the parties, and that it is appropriate in the circumstances to accept the consent orders. These provide both a financial detriment to Senior Constable Cole, and an opportunity to undertake further training, to consolidate his understanding of the proper way to implement the relevant policy, legislation and procedure governing, in particular, pursuits and urgent duty driving. Other relevant matters and orders [24] I make the following orders in the terms of the draft consent orders sought by the parties: 1. The sanction imposed by the First Respondent dated 25 November 2016 be set aside. 2. Senior Constable Cole’s salary increment from Senior Constable pay point 2.3 to 2.4, is deferred for a period of two years commencing from 1 January 2017. 3. Senior Constable Cole is eligible to progress to Senior Constable pay point 2.4 from 1 January 2019 subject to having completed the normal industrial requirements of the Queensland Police Service for progression to that pay point. 4. Senior Constable Cole is to undertake a one day training session on the Service’s pursuit and urgent duty driving policies and procedures within six months of this order (or such longer time as necessary for 17 Joint Submissions and Statement of Agreed Facts, par 30, citing Judge Horneman- Wren in Medical Board of Australia v Martin [2013] QCAT 376, [91] - [93]. -- 9 of 10 -- 10 the Service to organise delivery of such training), such training to be delivered by the Service Driver Training Wing. [25] I note that no submissions were made as to a non-publication order. I have elected not to make a non-publication order. -- 10 of 10 --