Crime and Misconduct Commission v Deputy Commissioner Ross Barnett [2014] QCAT 87

CITATION: Crime & Misconduct Commission v Deputy Commissioner Ross Barnett [2014] QCAT 87 PARTIES: Crime & Misconduct Commission (Applicant) v Deputy Commissioner Ross Barnett (First Respondent) Anthony Lee (Second Respondent) APPLICATION NUMBER: OCR176-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 10 February 2014 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan DELIVERED ON: 6 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave is given to the applicant to adduce the following evidence in the review: i) The complainants’ statement to PCSC Nick Williams, 18 January 2008. ii) A transcript of the complainants’ interview with PCSC Nick Williams, 18 January 2008. iii) Compass summary report 2008/00122 as printed on 17 May 2008. iv) Compass summary report 2008/00122 as printed on 8 October 2013. v) ESC interview with Senior Sergeant Lee on 5 August 2008. vi) ESC interview with Senior Sergeant Lee on 16 March 2011. vii) Letter from the CMC to the QPS dated 20 December 2012 as to the CMC’s recommendations that Senior Sergeant Lee should face a disciplinary hearing at pages 12 - 13 (redacted in relation to other matters not relevant to these proceedings). 2. The matter is to be returned to the First -- 1 of 9 -- 2 Respondent for reconsideration pursuant to s 23 of the QCAT Act. 3. The First Respondent is given leave to seek an extension of time as provided for in s 23(2) to reconsider the decision if required. CATCHWORDS: New evidence – where evidence had been considered in police consensual disciplinary process but not before the decision maker – where CMC’s role in review considered – where evidence allowed – where appropriate for matter to be returned to decision maker. Queensland Civil and Administrative Tribunal Act 2009 Crime and Misconduct Commission Act 2001 s 219H(2) Melling v O'Reilly, unreported, Criminal Justice Commission (Queensland), Member J R Forbes, Appeal No 6 of 1991, 9 December 1991 APPEARANCES and REPRESENTATION (if any): APPLICANT: Crime & Misconduct Commission represented by Mr Macgiollari of Counsel RESPONDENT: Deputy Commissioner Ross Barnett represented by Mr McLeod of Counsel Senior Sergeant Anthony Lee represented by Mr Schmidt of Counsel REASONS FOR DECISION [1] Senior Sergeant Lee was the subject of disciplinary action in relation to the manner in which he conducted an investigation into a complaint against a police officer for allegedly using excessive force in an arrest. Following his investigation Sergeant Lee had recommended that the police officer be exonerated. [2] It subsequently transpired that evidence was available to Senior Sergeant Lee which could have lead him to a different conclusion. The police officer was subsequently convicted of a number of assaults including against the complainant in Senior Sergeant Lee’s investigation. [3] An investigation by the Ethical Standards Command (ESC) into Senior Sergeant Lee’s handling of the investigation of the complaint revealed a number of deficiencies in the investigation, including: -- 2 of 9 -- 3  Failure to view CCTV footage of the incident.  Failure to interview police officers present at the time of the incident.  Failure to make enquiries of an officer who had interviewed the complainant. [4] Following the investigation Senior Sergeant Lee accepted an invitation to deal with the disciplinary matters arising out of the investigation by way of the QPS expedited disciplinary process, namely the administrative consensual disciplinary process (ACDP). [5] Commissioner Ross Barnett being the prescribed officer gave his decision in the ACDP on 19 June 2013 being the demotion of Senior Sergeant Lee from Senior Sergeant paypoint 4.4 to Sergeant paypoint 3.5 and to suspend that sanction for 12 months. [6] The CMC has applied to review that decision. [7] The CMC has also applied to adduce new evidence in the review hearing pursuant to section 219H(2) of the Crime and Misconduct Act 2001. The new evidence sought to adduced comprises: i) The complainants’ statement to PCSC Nick Williams, 18 January 2008. ii) A transcript of the complainants’ interview with PCSC Nick Williams, 18 January 2008. iii) Compass summary report 2008/00122 as printed on 17 May 2008. iv) Compass summary report 2008/00122 as printed on 8 October 2013. v) ESC interview with Senior Sergeant Lee on 5 August 2008. vi) ESC interview with Senior Sergeant Lee on 16 March 2011. vii) Letter from the CMC to the QPS dated 20 December 2012 as to the CMC’s recommendations that Senior Sergeant Lee should face a disciplinary hearing at pages 12 - 13 (redacted in relation to other matters relevant to these proceedings). viii) Allegation number 3 of Compass Summary report 2010/00875 (redacted in relation to other matters irrelevant to these proceedings). [8] This interlocutory application was heard by way of an oral hearing as a preliminary point. All parties have submitted that if the Tribunal allows the application the appropriate order would be to remit the matter back to the first respondent for further consideration. [9] QPS and Senior Sergeant Lee oppose the application for new evidence. -- 3 of 9 -- 4 The new evidence [10] An explanation of the ACDP process is necessary to understand why the CMC considers the material to be ―new evidence‖. [11] The process is described as being ordinarily conducted on the papers, providing for speedier resolution of the complaint and is an alternative to the disciplinary hearing process. It was developed to enable an officer who was the subject of disciplinary action to accept responsibility for their conduct and to have the matter dealt with quickly.1 [12] The process can be summarised as follows:  Following an investigation process a professional practice manager (PPM) recommends a matter to be suitable for ADCP.  The Assistant Commissioner (ESC) or any other officer authorised by the Assistant Commissioner determines whether the matter is suitable for ADCP.  The Assistant Commissioner determines the level of the prescribed officer to determine the matter.  The PPM coordinates the preparation of a Form A which sets out a draft summary of the facts and a description of the fault conduct.  The Form A is given to the prescribed officer. It is noted that the prescribed officer will only see the Form A and not any source documents referred to in it.  The prescribed officer will determine and propose in the Form A a classification of the conduct and the proposed sanction.  The Form A is given to the officer who has the option of accepting responsibility for the conduct, consenting to participation in the ADCP and accepting the proposed classification and the sanction, or agreeing with the process but asking to make submissions on either the classification of the conduct or sanction, or declining to engage in the consent process at all.  If (as here) the officer accepts the ADCP and does not make submissions or classification on sanction the prescribed officer will prepare a Form B which is the notice of the determination setting out the classification of the conduct and the sanction. The document also sets out the reasons for the determination. [13] In this case the prescribed officer Deputy Commissioner Barnett did not have access to the documents referred to in the Form A which were said to comprise the evidence in the investigation. This is the majority of 1 As described in the Form A ―invitation to undertake administrative consensual disciplinary process‖ annexed to the application to review. -- 4 of 9 -- 5 evidence listed in paragraph 7 (i) to (vii) above that the CMC wishes to produce in the review. He based his findings on the summary of facts set out in the Form A. [14] The first respondent submits that this material is not ―new evidence‖ because although it was not before the decision maker, the material had in fact been provided to the CMC prior to the ADCP process commencing. [15] The CMC had looked at the documentation and had advised QPS in December 2012 that on the basis of this material it considered Senior Sergeant Lee’s conduct was such that ―he should face a disciplinary hearing with the prescribed officer being of no less rank than the AC‖.2 [16] The QPS determined in June 2013 (as they are fully entitled to do) that rather than engage in a full disciplinary hearing, the matter was suitable for the ADCP. [17] The CMC were not to know therefore that the material they had regard to in recommending a disciplinary hearing would not in fact be reviewed by the prescribed officer. [18] The CMC is not a party to the disciplinary process. That is properly a matter between the QPS and the officer. [19] The material sought to be included in the review is new evidence. It was not before the original decision maker. Should the new evidence be allowed [20] Section 219H sets out the circumstances in which new evidence can be introduced:- 219H Conduct of proceedings relating to reviewable decisions (1) A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding). (2) However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied— (a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or (b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence. [21] In this case the CMC is not a party to the original proceeding. Although it knew of the evidence at the time the ADCP process was undertaken, it was not in a position to ensure that the evidence was placed before the decision maker. 2 Letter CMC to Assistant Commissioner ESC 20 December 2012 document 12 CMC’s material. -- 5 of 9 -- 6 [22] I agree with the CMC in such circumstances limb (a) is of limited application. [23] The CMC says that the new evidence should be admitted under the second limb that is in the special circumstances of the case it would be unfair not to allow them to adduce the evidence. [24] It says that the Form A upon which the decision was made was clearly deficient because it did not properly present the gravity of Senior Sergeant Lee’s conduct. It says the investigative source material needs to be considered to fully understand the context of Senior Sergeant Lee’s failure to investigate the allegation. [25] It submits it would be unfair to the CMC and prejudicial to its oversight role if the review took place only on the basis of the facts decided to be put in the Form A in circumstances where the CMC had no control over the drafting of the Form A. This is especially so it says where the documents sought to be introduced formed the basis of the Form A but the decision was made by the QPS to incorporate some but not all of the documents into the Form A. [26] The CMC says when regard is had to certain parts of this material the conduct of Senior Sergeant Lee may be regarded as more serious. [27] For example, it says the evidence shows that the material which Senior Sergeant Lee had available to him indicated that the CCTV footage did support the complainants view. It says this makes his conduct more serious than simply making false statements about having viewed the footage and his impression of the contents. [28] The CMC also point to comments made by the decision maker in his reasons for the sanction imposed which it says indicate a lack of appreciation of the background to some of the facts. For example the decision maker had commented that in imposing the sanction he took into account ―The complainants apparent unwillingness to cooperate with the investigation, coupled with her plea of guilty‖3. [29] The CMC say when the evidence from the investigation is reviewed in its entirety it reveals that there may have been reasons for the complainant adopting that position which the decision maker was not aware of. [30] QPS on behalf of Deputy Commissioner Barnett oppose the introduction of this new evidence. It submits that to allow this source material to be considered in the review is inconsistent with the ADCP process. It says that it must be assumed that the material in question was part of the investigation by the PPM when drafting the facts as set out in the Form A. If this material was now received in full on the review it would impugn this expedited disciplinary process. 3 Form A First respondent’s s21(2) materials page 12. -- 6 of 9 -- 7 [31] I do not accept that submission. The Form A informs the officer that the determination is subject to a review by the CMC. The CMC are not part of the original process but have a role in overseeing the process. They have the function of overseeing, reviewing and ensuring that conduct is dealt with in a way that promotes public confidence in the integrity of the Members of the QPS.4 [32] It would in my view be an inappropriate fetter on that role if as a matter of course, material which may have been considered in formulating the Form A was to be excluded from the review if the CMC considered the material itself should be bought to the attention of the Tribunal on review. [33] As such, if the evidence should otherwise be received the fact that it formed part of the investigative material in the ADCP process is not a reason to refuse the receipt of the information on a review. [34] Senior Sergeant Lee also opposes the introduction of this new evidence. He says in effect it adds nothing to the circumstances where the reasons of the decision maker in imposing the sanction reveal that he took into account ―the dishonesty in the reporting of the investigation as well as Lee’s failure to conduct a proper investigation of the matter.‖5 [35] In this regard, I accept the CMC’s submissions that the further details in the investigation material may reveal a greater degree of seriousness to the conduct which would be relevant to the Tribunal in reviewing the sanction. [36] At the hearing, Senior Sergeant Lee’s counsel raised a further argument in support of his opposition to the receipt of the new evidence. [37] He said the purpose of its introduction was in essence to add an additional charge beyond those which were before the Deputy Commissioner in the ADCP. [38] He said the CMC wanted to produce this evidence to support an argument that Senior Sergeant Lee deliberately failed to properly investigate the complaint in order to protect the officer concerned. [39] The CMC say that the evidence does not go beyond the matters considered by Deputy Commissioner Barnett. They point to the Deputy Commissioner’s comment that ―I consider the failure of the subject officer to conduct a fair, unbiased and transparent internal investigation into an allegation of misconduct as a serious reflection of the skill, effort and judgment demonstrated by the officer‖. [40] The CMC say the new evidence goes to the gravity of the finding that the investigation was not unbiased. 4 CMC Act 2001 ss 33, 34, 47. 5 First respondent’s submissions [13]. -- 7 of 9 -- 8 [41] They say, for example, the Deputy Commissioner could not have appreciated the extent of the bias unless he knew that Senior Sergeant Lee’s attention had been drawn to the video. [42] Senior Sergeant Lee says this goes beyond the charges. He said there was no charge of deliberate dishonesty. He refers the Tribunal to a decision of the previous misconduct Tribunal where the Tribunal in that case did not allow an amendment to a charge of ―falsely‖ to include false and dishonest.6 [43] I do not accept the CMC’s argument that the totality of the Form A must be read to discern the charges. The charges are those specified in the summary of fault conduct. [44] I do consider however that the detailed investigative material is relevant to the gravity of the conduct identified in the Form A summary of conduct as ―failing to adequately conduct preliminary inquiries into a disciplinary complaint.‖ It is relevant to the particulars that he submitted false information about viewing the footage and unreasonably recommending that the officers be exonerated. [45] I find that the evidence is potentially relevant to the consideration of the gravity of the conduct alleged and as such relevant on a review of the sanction. As such I order that the CMC is granted leave to adduce the new evidence identified in paragraph 7(i) to (vii) above. [46] The evidence identified in sub paragraph (viii) is in a different category. It was not part of the investigation evidence referred to in the Form A. It is a compass report in relation to a complaint against Senior Sergeant Lee in 2011. The CMC says this is relevant because the Form A says Senior Sergeant Lee had no unfavourable comments in his work history. I am not satisfied that leave should be given to adduce this evidence in the review. I accept Senior Sergeant Lee’s submission7 that the allegation the subject of the report resulted in management guidance/chastisement and that the QPS policy specifically provides it is not a disciplinary sanction and cannot be used as a sanction during the disciplinary hearing process. [47] All of the parties have submitted that if the evidence is allowed the appropriate order would be to remit the matter back to the decision maker for reconsideration. I accept that this is the appropriate order in these circumstances. [48] Leave is given to the applicant to adduce the following evidence in the review: i) The complainants’ statement to PCSC Nick Williams, 18 January 2008. 6 Melling v O'Reilly, unreported, Criminal Justice Commission (Queensland), Member J R Forbes, Appeal No 6 of 1991, 9 December 1991. 7 Second respondent’s submissions [15]. -- 8 of 9 -- 9 ii) A transcript of the complainants’ interview with PCSC Nick Williams, 18 January 2008. iii) Compass summary report 2008/00122 as printed on 17 May 2008. iv) Compass summary report 2008/00122 as printed on 8 October 2013. v) ESC interview with Senior Sergeant Lee on 5 August 2008. vi) ESC interview with Senior Sergeant Lee on 16 March 2011. vii) Letter from the CMC to the QPS dated 20 December 2012 as to the CMC’s recommendations that Senior Sergeant Lee should face a disciplinary hearing at pages 12 - 13 (redacted in relation to other matters not relevant to these proceedings). [49] The matter is to be returned to the First Respondent for reconsideration pursuant to s 23 of the QCAT Act. [50] The First Respondent is given leave to seek an extension of time as provided for in s 23(2) to reconsider the decision if required. -- 9 of 9 --