Crime and Misconduct Commission v Deputy Commissioner Barnett & Anor [2013] QCAT 443

CITATION: Crime and Misconduct Commission v Deputy Commissioner Barnett & Anor [2013] QCAT 443 PARTIES: Crime and Misconduct Commission (Applicant) V Deputy Commissioner Ross Barnett Natasha Julie Duck (nee Selwood) (Respondents) APPLICATION NUMBER: OCR002-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 25 July 2013 HEARD AT: Brisbane DECISION OF: K O’Callaghan, Senior Member DELIVERED ON: 28 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Deputy Commissioner Ross Barnett that matter one (b) is unsubstantiated is confirmed. CATCHWORDS: OCCUPATIONAL REGULATION - Police disciplinary proceedings – whether misconduct substantiated - whether sanction sufficient. Crime and Misconduct Act 2001 Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20 Aldrich v Ross [2001] 2 QdR 235 Briginshaw v Briginshaw (1938) 60 CLR 336 CMC v Commissioner Queensland Police Service and Chapman [2010] QCAT 564 Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384 Dark v Deputy Commissioner Ian Stewart [2010] QCAT at 15-16 -- 1 of 7 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Copley QC for the applicant RESPONDENT: Mr McLeod, Counsel for Deputy Commissioner Ross Barnett Mr Zillman Counsel for Natasha Julie Duck REASONS FOR DECISION [1] During the afternoon of 24 August 2009 Senior Constable Duck was involved with other officers in an attempt to apprehend suspects in connection with the commission of certain offences. [2] The events that unfolded resulted in disciplinary action being taken against some officers involved in the incident including Senior Constable Duck. The incident [3] The relevant facts involving Senior Constable Duck are not in dispute.  At approximately 4pm on 24 August 2009 several police officers including Senior Constable Duck and 2 SERT Officers entered a park to search for suspects in connection with a number of offences including extortion.  During the search the suspects absconded into the bushland. AB, a cousin of one of the suspects, left his home which was opposite the park and walked into the park. He was seen using his mobile phone and told by an officer to end the call. The officer took possession of the phone. AB was detained and was placed in the custody of Senior Constable Duck and another Senior Constable.  Whilst AB was seated on the grass he conversed with the 2 Senior Constables. AB was given water and some food to break a religious fast.  After some time one of the SERT officers approached Senior Constable Duck and asked her to move away from AB which she did.  She returned after about 20 seconds and it is apparent that during that time the SERT officer had grabbed AB‟s shirt and pushed him (the first assault).  It is accepted that Senior Constable Duck did not see nor was she told of this assault.  As the SERT officers were returning to their vehicle AB said something. Senior Constable Duck told him “don‟t be smart”. The SERT officers then returned to AB and Senior Constable Duck -- 2 of 7 -- 3 moved away from him. When she returned AB complained to her of being assaulted by one of the SERT officers. He said he had grabbed his throat and applied force. She suggested that he get it checked out if his throat was sore. [4] There was no further involvement of Senior Constable Duck in the incident. [5] Senior Constable Duck was the subject of the following disciplinary charges of misconduct: Matter one: That on or about the 24th day of August 2009 at Kuraby your conduct was improper in that you: (a) Failed to report misconduct by Senior Constable Shaun Chapman which you knew or should have reasonably expected had occurred: (b) Failed to take reasonable steps to maintain the safe custody of AB. [6] Deputy Commissioner Ross Barnett conducted a disciplinary hearing and found that the charge outlined in matter 1(a) was substantiated in that Senior Constable Duck had become aware of the second assault upon AB and failed to report misconduct by the SERT officer which she knew or should have reasonably suspected had occurred. [7] He found however that matter one (b) was not substantiated. He was not satisfied to the required standard that Senior Constable Duck failed to take reasonable steps to maintain the safe custody of AB. [8] The Deputy Commissioner imposed a sanction which required Senior Constable Duck to perform 22 hours of community service. This community service has been carried out. [9] The CMC seeks to review the decision of the Deputy Commissioner that matter 1(b) was not substantiated and in the event that it is successful in that review to review the sanction imposed and request that the Tribunal substitute a more appropriate sanction. [10] In a review proceeding the function of the Tribunal is to produce the correct and preferable decision. It does this by holding a fresh hearing on the merits.1 In determining such an application for review the Tribunal must make its own decision on the available evidence giving appropriate weight to the Commissioner‟s views outlined in the original decision.2 It is also accepted that in coming to a decision as to whether or not the charge 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20. 2 Aldrich v Ross [2001] 2 QdR 235; Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384; Dark v Deputy Commissioner Ian Stewart [2010] QCAT at 15-16. -- 3 of 7 -- 4 was substantiated the Tribunal should apply the principles concerning the standard of proof set out in Briginshaw v Briginshaw.3 [11] The standard of proof is on the balance of probabilities. However as the disciplinary proceeding is capable of producing serious consequences for the officer the necessary “reasonable satisfaction” is not to be reached lightly or on flimsy evidence.4 [12] The issue for determination is whether on the material before me I am satisfied to the requisite standard that Senior Constable Duck failed to take reasonable steps to maintain the safe custody of AB. The original particulars made reference to two incidents: (a) “Although there is no operational reason for the request, you walked away from AB for about 20 seconds, during which time Senior Constable Chapman grabbed AB‟s shirt and pushed him.” (b) “Both the SERT officers returned to AB and you moved 4 or 5 metres away, again for no operational reason, during which time Senior Constable Chapman grabbed AB by the throat and applied force.” [13] At the hearing Counsel for the CMC confirmed that it did not submit that the first particular amounted to any misconduct. It accepted that the evidence supported a finding that Senior Constable Duck was not aware that the first assault took place. It relies only on the second particular namely, that Senior Constable Duck moved away when the SERT officers approached AB a second time at which time an assault took place. The CMC’s submissions [14] The CMC relies on the evidence of Senior Constable Duck given in the investigation interviews on 9 October 2009 and 27 October 2009. [15] The CMC submit that when the Tribunal has regard to the answers given by Senior Constable Duck it can be satisfied that she failed to take reasonable steps to maintain the safe custody of AB. [16] It refers to a statement she made at the first interview. When she was asked why she stepped away at the request of the SERT officer she said “because he had been smart and I saw the SERT boys walking over to him I moved out of the road because I didn‟t know, I didn‟t know what they were what they were going to do… And I moved for my safety, I didn‟t know whether AB was going to jump up or, or do anything …”5 [17] The CMC submit that from these words I can infer she stepped away because she apprehended an assault might be committed upon Mr Ahmed and that the use of the word “they” was a reference to the SERT officers. They conceded that because the other persons involved namely 3 (1938) 60 CLR 336. 4 CMC v Commissioner Queensland Police Service and Chapman [2010] QCAT 564. 5 Section 21(2) documents volume 2 page 186. -- 4 of 7 -- 5 AB and the SERT officers were male and much larger than her, it would not have been expected that she would “put her body on the line”. Counsel for the CMC submitted at the hearing that it would however have been reasonable for her to tell the SERT officers to “leave it alone” or alternatively seek the assistance of other officers around. [18] They submit that the act of misconduct was walking away and not taking the steps to intervene in an assault she must have apprehended that was about to take place. The argument is that this act amounted to misconduct in that the conduct “does not meet the standard of conduct the community reasonably expects of a police officer”.6 The submissions of Senior Constable Duck [19] Counsel for Senior Constable Duck submitted that the Tribunal could only find that the charge was substantiated if I was satisfied to the requisite standard that she either believed or apprehended that an assault by the SERT officers on AB was a real possibility. [20] He said that the evidence relied on by the CMC when looked at in the context of all of the answers given by Senior Constable Duck in her interviews, did not support such a finding. He submitted that it is open to the Tribunal to find that Senior Constable Duck was in fact concerned that AB may well be the aggressor and that she did not want to risk her personal safety. [21] Relevant passages from the first interview are at page 184 of the record as follows7: SC Selwood: That was, I walked um, when I‟ve walked back then the SERT fellows were just about to get in their car. He‟s then … looked at me and he said „oh you’re the good one that’s okay‟. And um I‟ve said yeah and then um the SERT guy said „what did he say’ and I said everything‟s, it‟s fine and um they‟ve gone to get into the car and then AB said something to, I don‟t recall what he said but then I said to him don‟t be smart. Inspector Ellroy: And then what happened? SC Selwood: Then umm the SERT guys walked back over and I‟ve stepped probably 4 metres, 4 or 5 metres away and it was dark, I didn‟t see anything or hear them say anything. Then I‟ve turned around and they‟ve walked off again. But I didn‟t know whether something was going to happen that‟s why I‟ve moved out of the way. 6 Crime and Misconduct Act 2001 Schedule 2. 7 Section 21(2) documents volume 2 page 184. -- 5 of 7 -- 6 [22] She was then asked about what AB said on her return. SC Selwood: He said did you see that, he‟s hurt my neck and I‟ve said I didn‟t see anything. I said are you okay and he said it‟s sore. [23] Subsequently in the interview she was asked again why she moved away and she said: “Because he had been smart and I saw the SERT boys walking over to him. I moved out of the road because I didn‟t, I didn‟t know what they were, what they were going to do… And I moved for my safety, I didn‟t know whether AB was going to jump up, or do anything. I just I just took a few steps to the side and umm…”8 [24] Counsel for Senior Constable Duck said that the use of the word “they” did not necessarily mean the SERT officers but rather when put in the context that she expressed concerns that AB may act up, the word “they” may well have referred to all of the people involved including AB. [25] Counsel also referred to answers that Senior Constable had given in her second interview. In that interview she was asked what made her believe there was a safety issue:9 “from AB well he‟s an unknown risk, he was un-cuffed and he was, he was mouthing off and being quite verbal I didn‟t know what his next, what he was going to do so I moved back for my own safety.” [26] She was asked whether the safety issue was in relation to the 2 SERT officers walking towards her:10 “no, no it‟s from safety from him and obviously if I mean the size of me and the size of SERT personnel, if he was going to arc up, I didn‟t want to put myself in between him and officers that were more than able to take care of an unknown risk rather than myself.” 8 Section 21(2) documents volume 2 page 186. 9 Section 21(2) documents volume 2 page 485. 10 Section 21(2) documents volume 2 page 485. -- 6 of 7 -- 7 [27] Faced with this evidence and the evidence of other officers involved the Deputy Commissioner decided it would not be fair or justified to find that her conduct in walking away was misconduct. He commented, “there was no reasonable way for her to foresee the actions of Senior Constable Chapman”. [28] Counsel for Ms Duck submitted that in fact the issue was not whether the assault was reasonably foreseeable but rather whether or not Ms Duck actually foresaw the possibility of an assault. He submitted that a finding that the assault was not reasonably foreseeable however must in any event lead to a finding that schedule did not actually foresee the possibility of an assault. [29] The Deputy Commissioner found Senior Constable Duck to be a credible witness and the CMC do not seem to suggest otherwise. Instead it maintains that her own answers to questions, in particular, that she was not sure “what they were going to do” was sufficient for the Tribunal to infer that she apprehended an assault and thereby in walking away she engaged in conduct that did not meet the standard the community would reasonably have expected of her and in those circumstances the charge of misconduct should be substantiated. [30] I do not agree that such an inference is open on the material before the Tribunal. Having regard to all of the answers given by Ms Duck I am not satisfied to the requisite standard that she did apprehend that AB was likely to be assaulted particularly as she had no knowledge of the first assault. I also accept from her answers that she had some concerns about how AB was going to engage with the SERT officers as they approached him. He was at this stage obviously annoyed as indicated by the making of the remark that apparently caused the ultimate assault. [31] I think it more likely to be the case, as stated by the Deputy Commissioner, that “in a perfect world she should have stayed closer to AB during interaction with Senior Constable Chapman and prevented or stopped any assault”. This does not however amount to substantiation of the charge of misconduct. [32] In the circumstances the decision of the Deputy Commissioner that matter 1(b) is unsubstantiated is confirmed. -- 7 of 7 --