Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340

CITATION: Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340 PARTIES: Benjamin Arndt (Applicant) v Crime and Misconduct Commission Assistant Commissioner Doyle (Respondents) APPLICATION NUMBER: APL248-13 MATTER TYPE: Appeals HEARING DATE: 25 October 2013 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Kanowski DELIVERED ON: 18 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. The appeal is allowed. 3. The application of Crime and Misconduct Commission to review the decision of Assistant Commissioner Doyle is struck out. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where not a final decision – where question of general importance POLICE DISCIPLINARY PROCEEDINGS – whether error of law made in finding decision was a “reviewable decision” – where meaning of “reviewable decision” in police disciplinary matters considered Crime and Misconduct Act 2001 (Qld), s 49, s 50, s 219BA, s 219G, s 219H, Schedule 2 Police Service and Administration Act 1990 (Qld), s 2A, s 7A, s 7.4 Police Service (Discipline) Regulations 1990 (Qld), reg 3, re 6, reg 10, reg 11 -- 1 of 11 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 142, s 146 Crime and Misconduct Commission v Assistant Commissioner, Queensland Police Service & Anor [2013] QCAT 231 APPEARANCES and REPRESENTATION (if any): APPLICANT: Represented by Peter J Davis QC FIRST RESPONDENT: Represented by M J Copley QC SECOND RESPONDENT: Represented by S McCloud of Counsel REASONS FOR DECISION [1] This is an application by Constable Arndt for leave to appeal and to appeal the decision of the Tribunal dismissing his application to strike out a review proceeding commenced by the Crime and Misconduct Commission (CMC). Background [2] In July 2006 Constable Arndt arrested Mr Rowe. [3] Subsequently Mr Rowe commenced a private prosecution against Constable Arndt for unlawful assault. Constable Arndt was found guilty of unlawful assault but with no conviction being recorded. [4] The CMC commenced an investigation into the arrest of Rowe. On 4 July 2012 it provided a report pursuant to s 49 of the Crime and Misconduct Act 2001 (Qld) to the Assistant Commissioner, Ethical Standards, Queensland Police Service (QPS), expressing a view that there was sufficient evidence to support an allegation that Constable Arndt committed misconduct. The CMC said that the report was given for the purpose of taking disciplinary action against Constable Arndt. [5] On 19 October 2012 Assistant Commissioner Doyle wrote a memorandum to the Assistant Commissioner Metropolitan North Region. He said he accepted the judicial findings that the force used by Constable Arndt was not justified in the circumstances and that the allegation of unlawful assault was therefore substantiated. He concluded that Constable Arndt should be provided with managerial guidance in relation to the substantiated allegation of misconduct. [6] The Acting Assistant Commissioner Metropolitan North Region than sent to Constable Arndt on 26 October 2012 a memorandum headed “advice to member where no disciplinary action is taken in respect of complaint”. In the memorandum it was noted that the complaint by Mr Rowe had been -- 2 of 11 -- 3 the subject of a disciplinary investigations, a number of Court matters and a number of reviews by the CMC. He said: In relation to [the alleged unlawful assault] the Assistant Commissioner, Ethical Standards Command had concluded there was sufficient evidence of misconduct having occurred to support the allegation [and] made the decision that [Constable Arndt] should be provided with managerial guidance in relation to the allegation. [7] On 22 February 2013 the QPS wrote to the CMC advising that managerial guidance had been provided to Constable Arndt. [8] In March 2013 the CMC filed an application to review Assistant Commissioner Doyle’s decision not to commence disciplinary action against Constable Arndt. It also made an application for an extension of time on the basis that the time for review commenced when Constable Arndt was advised of Assistant Commissioner Doyles’ determination. [9] Constable Arndt then brought an application to strike out the review application on the basis that QCAT had no jurisdiction to review Assistant Commissioner’s determination as it was not a reviewable decision under the enabling Act. [10] The Learned Member in refusing the strike out application determined that Assistant Commissioner Doyle’s determination was a reviewable decision and the application for review was not made out of time.1 Should leave to appeal be given [11] Leave is needed to appeal the decision as it was not the Tribunal’s final decision in the proceeding.2 [12] The appeal involves a question of whether or not a decision made by Assistant Commissioner Doyle was a reviewable decision within the terms of the Crime and Misconduct Act 2001 (Qld) (‘CMC Act’). This involves a question of law namely what constitutes a “reviewable decision” pursuant to s 219G of the CMC Act. It is in the Appeal Tribunal’s view a question of general importance and one for which leave should be given. The appeal [13] The Learned Member found that all of the elements of the definition of reviewable decision as provided for in s 219BA(1)(a) had been met in that the decision made by Assistant Commissioner Doyle was a “decision in relation to an allegation of misconduct”. [14] The Learned Member also found that the extension of time was not required as the time commenced to run from the date the QPS announced 1 Crime and Misconduct Commission v Assistant Commissioner, Queensland Police Service & Anor [2013] QCAT 231. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(3)(a)(ii). -- 3 of 11 -- 4 its decision to the CMC namely 22 February 2013 and as such the application was made within time. [15] Constable Arndt has indicated that he is not pursuing any appeal on the issue of extension of time. [16] Constable Arndt’s argument is essentially that the Learned Member erred in interpreting the words in s 219BA(1) literally. He says the words should have been interpreted within the context of the statutory structure of the police discipline regime and not in isolation. [17] It is useful to set out relevant the parts of the legislation. Police Service Administration Act 1990 (Qld) (‘PSAA’) [18] Part 7 of the PSAA deals with internal command and discipline. [19] Section 7.4 is headed “Disciplinary action” and provides relevantly as follows: (1) In this section – … prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question. … (2) An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations. (2A) If the prescribed officer – (a) decides an allegation of misconduct brought against the officer; or (b) when deciding an allegation of breach of discipline brought against the officer, finds that misconduct is proved against the officer: the commissioner must give a QCAT information notice to the officer and to the Crime and Misconduct Commission for the decision or finding within 14 days after the making of the decision or finding. (3) Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of - (a) dismissal; (b) demotion in rank; (c) reprimand; (d) reduction in an officer’s level of salary; (e) forfeiture or deferment of a salary increment or increase; (f) deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units. -- 4 of 11 -- 5 Crime and Misconduct Act 2001 (Qld) [20] Section 49 provides that if the CMC investigates a complaint involving misconduct and decides that prosecution proceedings or disciplinary action should be considered the Commission can report on the investigation to various entities, including to the CEO of a relevant unit of public administration, for the purpose of taking disciplinary action. [21] Section 50 empowers the CMC itself to commence disciplinary proceedings if the report to the CEO evidences official misconduct. [22] Section 219G provides for the review of reviewable decisions. (1) The commission or a prescribed person against whom a reviewable decision has been made may apply, within the period mentioned in subsection (2) and otherwise as provided under the QCAT Act, to QCAT for a review of the reviewable decision. [23] Constable Arndt says that the Tribunal erred in deciding that Assistant Commissioner Doyle’s determination not to commence disciplinary action against him but instead to take managerial action, was a reviewable decision in terms of s 219G. [24] Section 219BA defines “reviewable decision” as: (a) a decision made in relation to an allegation of misconduct against a prescribed person, other than a decision made by a court or QCAT; or (b) a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that misconduct is proved against an officer. [25] Constable Arndt says the decision was wrong for three reasons: 1. He is not a “prescribed person” [26] “Prescribed person” is defined in Schedule 2 of the CMC Act by reference to s 50(4). [27] Section 50(4) defines a prescribed person to mean: (a) a person (i) who is a member of the police service; or (ii) being a member of the police service, whose employment as a member of the police service ends after the official misconduct happens … (i.e. a former police officer) [28] Section 219BA itself modifies this definition of “prescribed person”. [29] The Learned Member found that the definition of “prescribed person” in s 219BA is not a different definition for the purposes of s 219BA: it is rather as she described a “refinement” of the s 50(4) definition but the amendments so far as they relate to police officers relate only to s 50(4)(a)(ii) which concern disciplinary declarations against former officers. -- 5 of 11 -- 6 [30] Constable Arndt took a different view and said that the prescribed person definition in s 219BA was the definition of prescribed person for the purposes of the meaning of that phrase in s 219BA(1)(a). This would have the consequence that only former officers against whom disciplinary declarations were made (or should have been made) were prescribed persons for the purposes of s 219BA(1)(a). He said that this is an appropriate interpretation because current officers were covered in alternative meaning of “reviewable decision” set out in s 219BA(1)(b) namely a finding mentioned in the PSAA that misconduct was proven against an officer. [31] We reject that interpretation. Section 219BA(1)(b) is a reference to circumstances where there is an allegation of breach of discipline and subsequently a finding of misconduct is made in relation to that conduct. [32] Section 219BA(2) does not modify s 50(4)(a)(i). [33] We find no error in the Tribunal’s decision that Constable Arndt was a prescribed person. 2. The determination by Assistant Commissioner Doyle is not “a decision” [34] The Learned Member found3 that an allegation has been made by the CMC of misconduct against Mr Arndt, namely unlawful assault. Assistant Commissioner Doyle, Ethical Standards Command considered the allegation substantiated, decided not to take disciplinary action, and instead to give managerial guidance to Mr Arndt. That is, he made a decision about the allegation. [35] The CMC says that this is correct. It submits as there is no definition of the term “decision” it should be given its ordinary meaning. It says the Assistant Commissioner made a number of decisions about the allegation of misconduct: he decided he agreed with the CMC that the allegation of unlawful assault was substantiated and he decided that managerial guidance was the appropriate way to address the officer’s conduct. [36] Constable Arndt says that if the word “decision” is given its literal meaning, every determination made in relation to an allegation of misconduct would be a “reviewable decision”. He gives the examples that the CMC could review a determination to postpone the making of a determination in a disciplinary action or an appointment under the regulations of a particular prescribed officer to consider the disciplinary matter. [37] Assistant Commissioner Doyle as the second respondent in the appeal elected not to make any submissions of his own on the legal issues raised in the appeal. He did however comment that there needed to be certainty around when a “reviewable” decision was made as 3 Ibid at [21]. -- 6 of 11 -- 7 given the complex legislative and operational framework for police discipline, determinations in relation to allegations of misconduct arise by necessity for consideration at various stages or steps along the way throughout the investigations, overview and hearing processes.4 [38] The Appeal Tribunal agrees that if a literal interpretation is given to the words in s 219BA then the concerns of Constable Arndt and the second respondent may be valid. When regard is had to s 219BA in the context of the police disciplinary regime provided for in the PSAA the words take on a narrower meaning. [39] The CMC accepted that s 219BA was reflective of the provisions of s 7.4(2A) of the PSAA which refer to a prescribed officer “deciding an allegation of misconduct against an officer”. That is, a reviewable decision (as defined in s 219BA(1)(a) is (for the purposes of a police officer) a decision made under s 7.4(2A)(a) of the PSAA. [40] Section 7.4 of the PSSA is headed “disciplinary action”. This suggests that a decision made under s 7.4 is made in a context of disciplinary action having been taken. [41] In this case following receipt of the s 49 report the decision was made to give managerial guidance rather than take disciplinary action. [42] Assistant Commissioner Doyle himself in his report of 19 October 2012 distinguished between managerial guidance and disciplinary action. He said the independent review report and recent discussions with the CMC indicate support for the proposition that an appropriate response to such conduct is remedial intervention unless circumstances require disciplinary action.5 [43] Although the Police Service (Discipline) Regulations 1990 (Qld) (‘Regulations’) cannot be relied on to construe the legislation they are consistent with a view that managerial guidance is something other than disciplinary action. [44] The Regulations provide in reg 3 that one of the objects of the Regulations is to “provide for a system of guiding, correcting, chastising, and disciplining officers.” (our emphasis) [45] Regulation 6 relevantly provides that if an Assistant Commissioner forms the view that the officer should be disciplined the Assistant Commissioner can order the officer be disciplined in a manner that is warranted. [46] Regulation 10 sets out the “disciplines that may be imposed – ranging from a “caution” or “reprimand” to dismissal”. [47] Regulation 11 provides that the Regulations do not abrogate the right of a superior officer to “chastise or correct, by way of guidance inappropriate acts …” 4 Second respondent’s submissions dated 20 September 2013 at [8]. 5 Memorandum of Assistant Commissioner Doyle dated 19 October 2012 at [9]. -- 7 of 11 -- 8 [48] These provisions suggest that as an alternative to disciplining an officer, chastisement or guidance can be given if the prescribed officer considers it appropriate. [49] It would seem that in this case Assistant Commissioner Doyle made the decision that managerial guidance was more appropriate than disciplining Constable Arndt. He made a “decision” but it was not a decision in the context of disciplinary action having been taken as is contemplated by s 7.4. He made a decision to provide managerial guidance rather than take disciplinary action. This is different from deciding that managerial guidance is an appropriate sanction once disciplinary action is taken. [50] It is accepted that the PSAA does not provide for a formal procedure for taking disciplinary action against a serving police officer (c.f. the requirement for notice before making a disciplinary declaration against a former officer: s 7A.3) but when reference is had to the language used in the disciplinary regime in the PSAA and the CMC Act it is apparent that a decision in the context of s 7.4(2A)(a) and s 219BA(1)(a) involves something more than a decision to take managerial action following a s 49 report from the CMC. Instead it encompasses a decision taken in a more formal proceeding, notice of which has been given to the police officer. [51] Section 219H which deals with the conduct of the review proceedings in QCAT says:6 A review of a reviewable decision is by way of a rehearing on the evidence (original evidence) given in the proceeding before the original decision maker (original proceeding) (our emphasis). [52] This suggests that a more formal proceeding, with a hearing, will have occurred within the QPS when a reviewable decision is made. [53] This position is supported by another issue raised by Constable Arndt namely that a decision under s 7.4(2A)(a) is a decision by “a prescribed officer”. Constable Arndt says that Assistant Commissioner Doyle was not a “prescribed officer” for the purposes of making this decision. [54] “Prescribed officer” means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.7 [55] The relevant Regulation which authorises Assistant Commissioner Doyle to take disciplinary action is reg 6 which says: Where an assistant commissioner has formed the opinion that an officer should be disciplined … the assistant commissioner may order that the officer be disciplined … [56] In this case the Assistant Commissioner did not form the opinion that Constable Arndt should be disciplined; to the contrary he decided he shouldn’t. Constable Arndt says therefore, for the purposes of making this decision, the Assistant Commissioner was not a “prescribed officer”. 6 CMC Act, s 219H(1). 7 PSAA, s 7.4(1). -- 8 of 11 -- 9 [57] The CMC in its submissions on this issue suggest8 that Assistant Commissioner Doyle as an Assistant Commissioner was given the power under reg 6 to take disciplinary action and therefore he was a “prescribed officer.” This is correct but only in circumstances where he formed the opinion that the officer should be disciplined. [58] We conclude that in all of these circumstances “a decision” in s 219BA means something more than any decision about an allegation of misconduct. It is the decision taken in a disciplinary action against the officer where the decision maker has formed a view that the officer should be disciplined. This was not the case here. As such we find that the Tribunal erred in finding that a “decision” had been made in the terms of s 219BA(1)(a). 3. The report of the CMC is not “an allegation of misconduct” [59] Constable Arndt also submits that the Assistant Commissioner’s determination was not made “in relation to an allegation of misconduct” as required by s 219BA(1)(a). [60] The CMC say the words “allegation of misconduct” are not defined and therefore recourse should be had to the ordinary meaning of the words. Turning to the Macquarie dictionary it says it means “a mere assertion made without proof, an assertion made in a legal proceeding which a party undertakes to prove”. [61] It submits that provided there is an assertion by someone that a prescribed person engaged in conduct that could constitute misconduct and then there is, for the purposes of s 219BA(1)(a), an “allegation of misconduct”. [62] The CMC report, they say, contained the allegation of misconduct that Constable Arndt unlawfully assaulted Mr Rowe. Assistant Commissioner Doyle then made a decision in relation to that allegation. [63] As with the word “decision” if regard is had to the term in isolation then there can be no doubt Mr Rowe made an allegation or assertion that Constable Arndt unlawfully assaulted him which would on any view if substantiated amount to misconduct. [64] The CMC also point out that in the s 49 report reference was made to the “allegations”: The CMC identified and investigated the following allegations … Arndt unlawfully assaulted Rowe during his arrest … Pursuant to section 49(2)(f) of the Crime and Misconduct Act 2011, I now provide a report on our investigation to you for the purposes of taking disciplinary action in relation to the allegation of misconduct … 8 CMC Submissions at [22] – [24]. -- 9 of 11 -- 10 [65] The Assistant Commissioner in his memorandum of 19 October 2012 also makes reference to the “allegations” against Constable Arndt and says with respect to Constable Arndt “I concur with your view that allegation four is substantiated.” [66] Constable Arndt submits and the Tribunal accepts that how Assistant Commissioner Doyle or the CMC view these “allegations” are not determinative of their status in the context of s 219BA or s 7.4(2A). [67] Constable Arndt says in this instance, the report of the CMC under s 49 did not constitute an “allegation”. The report, he says, does no more than record the CMC’s conclusion that “prosecution proceedings or disciplinary action should be considered.” [68] He says a s 49 report is not accusatory. It is apparent that it is intended that the report contain all the material (in support or otherwise) of the opinion that disciplinary action be considered. It is then for the recipient to commence disciplinary action in which an allegation and decision in relation to the allegation will be made. In those circumstances the decision becomes a “reviewable decision.” [69] The legislative history as submitted by Constable Arndt also supports the argument that “allegation of misconduct” means a formal charge of misconduct. [70] The PSAA and the CMC Act were amended in 2009. [71] Prior to the amendments s 7.4(2)(a) and (b) referred to deciding a “charge” of misconduct. Counsel for Constable Arndt in making this submission referred the Appeal Tribunal to the explanatory notes in relation to this change. The notes indicate that the change was not one of substance: it was not designed to change the law but to change the terminology because the term “charge” had a criminal connotation. [72] This would suggest that “allegation” in the context of s 7.4(2A) and therefore s 219BA means something more formal than a mere assertion. [73] Support for this view can also be gleaned from the current language in the legislation “allegation … brought against”9 and “allegation … against”10 which has a connotation of formal proceedings notified to the subject officer. Here the officer was not given the s 49 report. Subsequently when the Assistant Commissioner decided not to take disciplinary action a notice to that effect was given to the officer. In this regard it is noted that the memorandum is headed “advice to Member when no disciplinary action is taken in respect of a complaint”. [74] The appeal Tribunal accepts that an allegation about a police officer only becomes a “allegation of misconduct brought against a [police officer]” for 9 PSAA, s 2A(a). 10 CMC Act, 219BA(1)(a). -- 10 of 11 -- 11 the purposes of s 219BA once disciplinary action with respect to the allegation is taken. This did not occur in this case. Conclusion [75] The Appeal Tribunal finds that the Learned Member erred in finding that the decision of Assistant Commissioner Doyle was a “reviewable decision”. [76] Pursuant to s 146 of the QCAT Act the Appeal Tribunal sets aside the decision of the Tribunal and finds that the application for review should be struck out under s 47(1)(b) of the QCAT Act on the basis that the Tribunal has no jurisdiction to hear the application. -- 11 of 11 --