Biggin v Assistant Commissioner O'Regan [2014] QCAT 175

CITATION: Biggin v Assistant Commissioner O’Regan [2014] QCAT 175 PARTIES: Paul Biggin (Applicant) v Assistant Commissioner O’Regan (Respondent) APPLICATION NUMBER: OCR214-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 6 February 2014 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan DELIVERED ON: 14 April 2014 DELIVERED AT: Brisbane ORDERS MADE: The decision of the Assistant Commissioner is confirmed. CATCHWORDS: Occupational Regulation – Police Disciplinary – where finding of misconduct upheld – where sanction not excessive Crime and Misconduct Act 2001 (Qld), Sch 2 Police Service Administration Act 1990 (Qld), s 1.4 APPEARANCES and REPRESENTATION (if any): APPLICANT: Represented by Mr Trewaves of counsel RESPONDENT: Represented by Mr McLeod of counsel REASONS FOR DECISION [1] Inspector Biggin joined the Police force in 1986. He was promoted to Inspector in 2009 and from that time has served in that role in the Mt Isa district. -- 1 of 4 -- 2 [2] He was disciplined in relation to his actions following a social evening at the Mt Isa Hotel in October 2011. He seeks to review the disciplinary decision. [3] On 18 October 2011 Inspector Biggin was at the Mt Isa Hotel with work colleagues from the police station. One of the colleagues was a female administrative assistant who had sat next to him at the table in the hotel. [4] Some days later she complained to her supervisors that Inspector Biggin had touched her on the leg and made inappropriate comments. One of those supervisors (a Senior Sergeant at the Police station) told Inspector Biggin about the complaint. [5] Inspector Biggin then contacted the manager of the hotel and obtained CCT footage from the relevant evening. He told the manager he needed the footage because someone had made a complaint that he had consumed liquor whilst on call. Inspector Biggin looked at the footage and then gave it to the Senior Sergeant. [6] A disciplinary investigation followed and a direction was issued to Inspector Biggin to attend a disciplinary hearing in June 2013 in relation to two matters. [7] The two disciplinary matters were considered by the decision maker Assistant Commissioner O’Regan. Matter 1 On 18 October 2011 at Mt Isa your conduct was unbecoming of an officer in that you, whilst off duty, acted in an inappropriate manner towards Ms H. [8] The Assistant Commissioner considered the evidence and submissions in relation to this charge and found the matter unsubstantiated. Matter 2 That on or about 21 October 2011 at Mt Isa your conduct was improper in that you used a false representation to inappropriately obtain CCT footage from the Mt Isa Hotel relating to the complaint made by Ms H. [9] The Assistant Commissioner found this charge to be substantiated. The sanction imposed was that Inspector Biggin’s pay point level be reduced for 12 months from pay point 5.5 to pay point 5.4 from 13 September 2013 until 12 September 2014 at which time his pay point will revert to 5.5 with pay point progression period to pay point 5.6 recommencing for a further period of 12 months from 12 September 2014. [10] Inspector Biggin does not contest the facts in relation to this charge. He says however that the Assistant Commissioner wrongly categorised his conduct as misconduct. Alternatively he says if it was misconduct the sanction imposed was excessive. -- 2 of 4 -- 3 Was the conduct properly categorised as misconduct [11] ‘Misconduct’ is defined in the legislation1 as conduct that: (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. [12] Inspector Biggin correctly submits that if a charge of misconduct is to be made out it would be under the third limb, that is, his conduct did not meet the standard of conduct that the community reasonably expects of a police officer. [13] He said his conduct did not fall short of that standard. Whilst conceding he made a false representation to the manager of the hotel he says the circumstances he was faced with reduced the seriousness of such conduct. [14] He said he had real concerns that the CCT footage may have been ‘lost’ by the hotel manager because of the manager’s connections with the complainant. [15] He said he was anxious to ensure that he obtained the evidence in order to clear his name in the face of a serious false accusation against him. [16] He also provided a substantial number of character references from members of the local community. He says these character references ‘evidence no lack of integrity or want of character as to substantially erode the trust and confidence of the officers colleagues and/or the members of the public are entitled to repose in the applicant’. [17] Whilst the character references may be relevant in mitigation of sanction, they are irrelevant in a consideration of whether the particular conduct the subject of a charge was below the conduct the community would reasonably expect of a police officer. [18] I prefer the view expressed by the Acting Commissioner that in maintaining his conduct in the circumstances was not inappropriate Inspector Biggin has in fact ‘shown a total lack of insight into his actions in dealing with the complaint’.2 [19] His actions in directly involving himself in the investigation concerning his conduct indicates a lack of understanding of and regard to the importance of the need for transparency in such investigations. 1 Police Service Administration Act 1990 (Qld), s 1.4; Crime and Misconduct Act 2001 (Qld), Schedule 2. 2 Section 21 documents page 201. -- 3 of 4 -- 4 [20] That conduct in itself is below what the public is entitled to expect. This is compounded by his false representation to the manager as to the reason for his request for the footage. [21] Inspector Biggin says that he faced a dilemma in that if he did nothing he would have to hope that the most compelling evidence of his innocence was obtained in time by the internal investigation. There clearly was a more appropriate course that he could have taken. As stated by the Assistant Commissioner as one of three commissioned officers in Mt Isa district the subject officer should have advised the Senior Sergeant about how the matter should have been investigated and that he as the primary subject, could not be involved in obtaining evidence … he should of advised (the Senior Sergeant) to obtain the recording … [22] I find that the conduct of Inspector Biggin was below the standard the community could reasonably expect and amounted to misconduct. Was the sanction manifestly excessive [23] Inspection Biggin said that the sanction was too severe when compared with other cases involving dishonesty or the provision of false information.3 [24] It may be correct that the dishonesty aspect of the charge is at the lower end of the scale but Inspector Biggin’s conduct in involving himself in the investigation and his lack of insight into this conduct are aggravating factors. [25] He said he did what any normal person would do, that is, took reasonable steps to ensure the evidence which would exonerate him was obtained.4 [26] This again illustrates a lack of understanding of the importance of maintaining the integrity of an investigation into possible misconduct by a police officer. The public is entitled to be satisfied that such a process is fair and transparent. The proper course was to inform the Senior Sergeant of the available evidence. [27] I have noted the character references provided by Inspector Biggin in mitigation of sanction. I find however that having taking that into account the sanction imposed by the Assistant Commissioner was appropriate in the circumstances. [28] The decision of the Assistant Commissioner is confirmed. 3 Applicant’s submissions at [22]. 4 Ibid at [29]. -- 4 of 4 --