DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162

CITATION: DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162 PARTIES: DA (Appellant) v Deputy Commissioner Ian Stewart (Respondent) APPLICATION NUMBER: APL047-11 MATTER TYPE: Appeals HEARING DATE: 22 May 2013 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham Joanne Browne, Member DELIVERED ON: 25 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision made by the respondent on 2 February 2010 in relation to matters 1, 2 and 4 that those charges are substantiated is confirmed. 2. DA is suspended from the Queensland Police Service for 18 months effective from 2 February 2010. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where decision of the appeal tribunal contained in paragraphs 3(iv) and 3(iii) were set aside – where matter remitted to the appeal tribunal to determine sanction – where fresh evidence relates to credibility and circumstances of conduct – where evidence of rehabilitation and credit – where appropriate sanction to be determined. DISCIPLINARY PROCEEDINGS – POLICE OFFICER – MISCONDUCT – whether matters relevant to determine sanction. Crime and Misconduct Act 2000 (Qld), ss 219A, 219B, 219BA, 219C & Schedule 2. -- 1 of 11 -- 2 Police Service Administration Act 1990 (Qld), ss 1.3, 1.4, 7.2(1), (2A)(b) & 7A.5(1)(b). Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 146,147 & 194A. Aldrich v Ross [2001] 2 Qd R 235, cited. DA v Deputy Commissioner Stewart [2011] QCAT 102, cited. DA v Deputy Commissioner Stewart [2011] QCATA 359, cited. Deputy Commissioner Stewart v Dark [2012] QCA 228, applied. Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 066, cited. McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, cited. Ottaway v Commissioner of Police (Unreported, Queensland Civil and Administrative Tribunal, Mr P Richards (Member) 15 March 2013) cited. Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, cited. APPEARANCES and REPRESENTATION: APPLICANT: Mr P Flanagan QC, of Counsel, instructed by Gilshenan & Luton. RESPONDENT: Mr S McLeod, of Counsel, instructed by the Office of the Queensland Police Service Solicitor. REASONS FOR DECISION Background [1] DA was subject to disciplinary proceedings regarding conduct when he was a police constable. This Appeal Tribunal published its decision on an appeal from a member of QCAT on 9 December 2011.1 On 24 August 2012, the Court of Appeal set aside the Appeal Tribunal’s finding on one 1 DA v Deputy Commissioner Stewart [2011] QCATA 359. -- 2 of 11 -- 3 allegation of misconduct and remitted the matter to the Appeal Tribunal for reconsideration of sanction.2 [2] The Appeal Tribunal has resumed these proceedings, constituted for this stage as it was for the original hearing, although one of its members, Judge Kingham, is no longer a member of QCAT. The parties were consulted on the constitution of the panel and did not object to this course. As they have not yet concluded, Judge Kingham is deemed to continue as a member of QCAT for the purpose of these proceedings.3 [3] The Court of Appeal set aside the sanction of 6 months suspension originally imposed by the Appeal Tribunal. It now falls to the Appeal Tribunal to sanction DA for the following misconduct: a) Matter 1: DA breached a protection order issued under the Domestic Violence and Family Protection Act 1989; b) Matter 2: DA lied when he told a supervising officer that he had not accessed his estranged wife’s email account; c) Matter 4: DA provided false and misleading information in a statutory declaration to his estranged wife. [4] The parties are not agreed either on the approach the Appeal Tribunal should take to determining sanction or what sanction should be imposed. The conduct to be sanctioned Matter 1 – DA breached a protection order issued under the Domestic Violence and Family Protection Act 1989 [5] The Appeal Tribunal previously made the following findings about this conduct: [115] There were three breaches of domestic and family violence protection orders that JK had taken out against DA. The first was a request that JK tell the three children of the marriage that he loved them. The second was that he told JK to get fucked. The third was sending some text messages, at least some of which seem to have been in response to messages from her. [116] There was no actual or threatened violence. The breaches occurred shortly after his separation from JK when he was distressed by the breakdown of a lengthy marriage. He then suffered from an adjustment disorder with depressed mood, and underwent treatment for that condition. The prosecution supported the submission that no conviction should be recorded and a good behaviour bond imposed. That indicates the view taken by both prosecutor and Magistrate about where his conduct fitted on the scale of seriousness. [117] There is an extra element to a breach of such an order by a police officer. Although, in general terms, a police officer has a role at large to enforce the law, 2 Deputy Commissioner Stewart v Dark [2012] QCA 228. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s194A. -- 3 of 11 -- 4 there is a more direct involvement by police in enforcing compliance with these orders. They are at the front line of regulating behaviour in circumstances of domestic conflict. If police officers fail to comply with them, this undermines their effectiveness to deter unacceptable behaviour by others. In my view, a member of the public would reasonably consider that repeated breaches of an order, even without actual or threatened violence, is morally or socially blameworthy of the officer, as a police officer, and warrants more than a nominal sanction.4 [6] The findings were not disturbed on appeal and Justice Muir endorsed the views expressed in [117].5 Matter 2: DA was untruthful when he told a supervising officer that he had not accessed his estranged wife’s email account [7] DA lied in a conversation with a superior officer on 13 September 2007 when he said he had not accessed the email account of his, then, estranged wife. [8] The Appeal Tribunal previously made the following finding: Although it might be considered a marginal case, I am satisfied it is misconduct because it undermines his authority as a police officer that, during a police investigation, he would lie to protect himself. His motivation for lying is a relevant factor for sanction but, in this case, does not mean the lie was not misconduct. 6 Matter 4: DA provided false and misleading information in a statutory declaration to his estranged wife. [9] DA made a false statement, in a document in the form of a statutory declaration provided to his wife, that he would forfeit all rights in the matrimonial home. The Court of Appeal overturned the Appeal Tribunal’s finding that this did not constitute misconduct. [10] In discussing the conduct, Justice Muir addressed both DA’s intention to mislead, which was admitted, and his purpose for doing so. His Honour appeared to conclude that DA had misled his wife in order to gain a material advantage: Plainly, the formal assertion of a relinquishment of an interest in the matrimonial home was one of substance and involved the misleading by the respondent of his then spouse in order to gain a material advantage. The fact that the conduct occurred against the background of a bitter matrimonial dispute may serve to explain the behaviour, but can hardly excuse it.7 [11] Earlier in his reasons, Justice Muir said: 4 DA v Deputy Commissioner Stewart [2011] QCATA 359 [115] – [117]. 5 Deputy Commissioner Stewart v Dark [2012] QCA 228 [42]. 6 DA v Deputy Commissioner Stewart [2011] QCATA 359 [102]. 7 Deputy Commissioner Stewart v Dark [2012] QCA 228 [34]. -- 4 of 11 -- 5 It is not entirely clear what advantage the respondent sought to gain from the use of the document.8 [12] He went on to summarise the Appeal Tribunal’s findings about the circumstances in which DA gave his wife the document. Specifically, he referred to DA’s admission that he intended to mislead his wife about his intentions with respect to the home, in order to shut her up.9 [13] When the hearing resumed before the Appeal Tribunal, Mr McLeod confirmed he had advanced no submissions before the Court of Appeal that DA sought any particular material advantage. Although there were subsequent proceedings in the Family Court, it was accepted by both parties that DA did not prepare the document for that purpose. He gave it to his wife at an earlier time, when he and his wife were still co-habiting and his wife was pressing him to transfer their home to her. [14] The Commissioner does not assert DA did gain a material advantage. There is no evidence before the Appeal Tribunal to suggest that his intention was to gain a material advantage. The Court of Appeal has not made a specific finding about any material advantage DA sought to obtain. In those circumstances, the Appeal Tribunal has determined sanction on the basis that DA created the document with the intention to mislead. [15] The Court of Appeal accepted that not every act of dishonestly in a police officer’s private life will constitute misconduct. Justice Muir said: The nature of the act and the circumstances in which it took place must be considered with a view to determining whether the conduct reveals such a lack of integrity or want of character as to substantially erode the trust and confidence that the officer’s colleagues and/or the members of the public are entitled to repose in him or her.10 [16] Justice Muir concluded the behaviour constituted misconduct because it was such as to engender a lack of trust on the part of other police officers and members of the public.11 The approach to determining sanction Should the Appeal Tribunal approach sanction adopting a global approach to matters 1, 2 and 4? [17] During oral submissions, Mr Flanagan QC, for DA, submitted there was no criticism by the Court of Appeal of the sanction of 6 months suspension imposed for matters 1 and 2. He invited the Appeal Tribunal to approach sanction by determining what greater sanction was warranted by matter 4. 8 Deputy Commissioner Stewart v Dark [2012] QCA 228 [31]. 9 Deputy Commissioner Stewart v Dark [2012] QCA 228 [31]. 10 Deputy Commissioner Stewart v Dark [2012] QCA [33]; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 286 (Dixon CJ). 11 Deputy Commissioner Stewart v Dark [2012] QCA [36]. -- 5 of 11 -- 6 [18] Mr McLeod, for the Commissioner, argued sanction should be approached globally. That submission is consistent with the following observations of Justice Muir in the Court of Appeal: The Appeal Tribunal has not had the opportunity of considering the appropriate penalty in this matter in light of the findings as to misconduct in respect of matter 4. The conduct in respect of matter 4 must be looked at together with the conduct in respect of matters 1 and 2 and, for that matter, 3 in order to arrive at the appropriate sanction.12 Should the Appeal Tribunal consider matter 3 in determining sanction? [19] Although Justice Muir referred to matter 3, both counsel argued that conduct could not be considered in determining sanction for matters 1, 2 and 4. Matter 3 involved a lie DA told to a supervising officer about his whereabouts during sick leave. The Appeal Tribunal found that conduct constituted a breach of discipline, not misconduct. As such the Appeal Tribunal’s power to impose sanction is not enlivened.13 Those findings were not disturbed on appeal. [20] The Appeal Tribunal has approached sanction by considering only the conduct charged as matters 1, 2 and 4. How should the Appeal Tribunal view the sanction imposed by the original decision maker? [21] Mr McLeod, for the Commissioner, submitted the appropriate sanction is that DA should be dismissed from the Queensland Police Service. That is the sanction imposed by the then Deputy Commissioner. Mr McLeod relied on Aldrich v Ross14 to argue the Appeal Tribunal should pay due regard to the views of the original decision maker. That principle is well established. The way in which the Appeal Tribunal applies the principle, in this case, is affected by the fact that it is determining sanction for different allegations, viewed globally, and on a different factual matrix. [22] When determining sanction, the Commissioner said: …I do acknowledge that these incidents if considered separately may, may not warrant the ultimate sanction of dismissal however your actions clearly show your propensity to conduct yourself in a course of behaviour that is totally unacceptable for any member of the community let alone a sworn police officer. Consequently when considering your actions in totality and the complete lack of remorse and unacceptance of your actions together with your manifestation to provide untruths and further your propensity to blame others I have no hesitation in ordering your dismissal from the Queensland Police Service…15 12 Deputy Commissioner Stewart v Dark [2012] QCA 228 [48]. 13 Crime and Misconduct Act 2001 (Qld) s219J. 14 [2001] 2 Qd R 235. 15 Transcript No 1 of 1: Reasons for Decision of Deputy Commissioner Stewart - Section 21 material, Vol 1, p 94. -- 6 of 11 -- 7 [23] The Commissioner determined the sanction of dismissal was justified on the totality of the conduct he found was substantiated. That included an allegation of very serious misconduct charged as matter 5. [24] Matter 5 was an allegation that DA had forged the signature of a Commissioner for Declarations on the document he gave to his estranged wife. It is unarguable that misconduct constituted by forgery calls for a condign penalty. However, the Appeal Tribunal found matter 5 was not substantiated. The Commissioner did not appeal that finding. [25] The Appeal Tribunal must also determine sanction on the evidence now before it. This includes two categories of evidence not before the original decision maker or, for that matter, before the Tribunal at first instance. The first relates to the context in which the conduct occurred; the second category relates to DA’s rehabilitation. Those matters are addressed later in these reasons. [26] Given the more restricted conduct to be sanctioned and the different evidence before the Appeal Tribunal, it falls to the Appeal Tribunal to consider, afresh, whether the conduct to be sanctioned warrants dismissal from the force.16 Is dismissal the appropriate sanction? [27] Dismissal is the most serious sanction that may be imposed. It indicates the officer does not have the requisite character and personal qualities to serve in the police force. Dishonesty, whether in the officer’s personal or private life, calls the officer’s suitability for police service into question, because the reputation of the Police Service, and public confidence in it, depends upon the integrity of its officers. [28] It does not follow, however, that misconduct bearing on an officer’s integrity should necessarily lead to dismissal. There are varying degrees of dishonesty.17 It is not, in my opinion, every proved act of dishonesty on the part of a practitioner which justifies a substantial penalty; dishonesty, like other forms of misbehaviour, has grades of seriousness… momentary or at least temporary lapse from proper standards of honest behaviour is one thing; persistence in such conduct over a substantial period is another.18 [29] Every case must be assessed on its own merits. However, as the appellate body, the Tribunal has a role to play in promoting consistency within the police disciplinary system. To that end, the Appeal Tribunal has had regard to the cases referred to during argument, in determining sanction for DA’s misconduct. 16 Crime and Misconduct Commission v Assistant Commissioner Barnett & Eaton [2011] QCAT 161 [19]. 17 Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66 [14]. 18 Attorney-General v Bax [1999] 2 Qd R 9, 20. (Pincus JA). -- 7 of 11 -- 8 [30] In Kennedy v Deputy Commissioner Ian Stewart the Tribunal considered a number of cases involving dishonesty and noted that the officer was dismissed in only one of them.19 In that case, Wadham v Deputy Commissioner Ian Stewart , much more serious acts of dishonesty were involved: misappropriation of police funds; unauthorised use of police resources for non-policing purposes; and providing false and misleading information in support of the officer’s progression within the workforce. That case is clearly distinguishable from the present one. [31] In Kennedy, the police officer used a portable camping fridge that was the property of the Mount Isa Police Citizens Youth Club for more than 6 months.20 The Tribunal considered the conduct, while not at the most serious level, occurred over a substantial period. It set aside the sanction of dismissal and imposed a sanction of 6 months suspension. This case involved a material gain, albeit one that was at the lower end of the range of misappropriation cases. [32] In Ottaway v Commissioner of Police, the Senior Sergeant succeeded, after several attempts, to warn a Sergeant that a complaint of sexual assault had been made against the Sergeant and, also, of the identity of the complainant. Deputy Commissioner Stewart found the disclosure of this information impacted on the integrity of the investigation of the complaint. The Senior Sergeant was demoted to Sergeant and the Deputy Commissioner imposed time and performance conditions upon his return to his former rank and upon his further progress up the pay point scale.21 [33] The officer appealed the sanction to the Tribunal. The learned Member who heard the matter, Mr Richards, observed that a higher sanction was open, given the police officer’s conduct “was in direct contravention of that progress that the Queensland Police Service had made” in regard to the “trust reposed” in the service.22 Having expressed that view, Mr Richards granted the applicant leave to withdraw his appeal. [34] Otttaway’s case is a more serious example of unethical conduct than the present one. It involved a senior officer using information gained in his official capacity to inform the subject of an active police investigation, and, thereby, undermined the integrity of the investigation. The context of the offending 19 Pegg v O’Gorman Misconduct Tribunal 4 of 1991; Crawford v Bowen Misconduct Tribunal OJ 4 of 1994; Re Bowen (1996) 2 Qd R 8; CJC v Quilter Misconduct Tribunal MT 3 of 1998; CMC v Stretton Misconduct Tribunal OJ 2 of 2002; Morier v Conder Misconduct Tribunal TA 1 of 2003; Vann v McGibbon Misconduct Tribunal TA 4 of 2001; CMC v Conder and Thomsen Misconduct Tribunal TA 6 of 2006;CMC v McLennan and Ors (2008) QSC 12; Wadham v Deputy Commissioner Ian Stewart [2010] QCAT 578 20 Kennedy at [15] 21 Notice of Formal Finding 19 March 2012 22 Ottaway v Commissioner of Police (Unreported, Queensland Civil and Administrative Tribunal, Member Richards, 15 March 2013) p 4. -- 8 of 11 -- 9 [35] In determining sanction, the context in which the conduct has occurred must be considered. This includes any motivation for the dishonesty or any benefit to be gained. In respect of matter 4, DA was motivated to resist pressure from his wife. He deliberately misled her about his intentions regarding their home. However, he received no financial or material benefit by his dishonesty. [36] The Appeal Tribunal received fresh evidence when the matter first came on for hearing which put a different complexion on the context in which DA’s misconduct occurred. That evidence and the view the Appeal Tribunal took of it is canvassed in some detail in its previous decision and it is unnecessary to revisit it at length. [37] Suffice it to say that the Appeal Tribunal took a very different view to the relations between DA and his wife than did the Commissioner or the learned QCAT Member, who concluded there was “no evidence that [DA] was harassed by his ex wife but there is evidence that he made failed attempts to accuse her of harassment”.23 [38] On the fresh evidence before the Appeal Tribunal it expressed the view: It is hard to avoid drawing the conclusion that JK [DA’s former wife] was intent upon a campaign to attack DA.24 [39] The Court of Appeal did not disturb the Appeal Tribunal’s findings about the context of DA’s offending. Justice Muir said: Counsel for the respondent argued that there was no error revealed in the subject finding when read in context. The context was identified as that contained in paragraphs [54]-[57] of the deputy president’s reasons, namely “an extraordinarily bitter marriage breakdown” in which [JK] made numerous and persistent complaints leading police officers to become “enmeshed in the demise of this marriage”.25 [40] The Appeal Tribunal also takes into account that, at the time DA breached the protection orders, he was suicidal and was treated for an adjustment reaction with depressed mood.26 DA’s personal circumstances do not excuse his conduct, but they are relevant to what sanction is called for. Evidence of rehabilitation [41] Mr McLeod submitted the Appeal Tribunal should take into account, as did the learned QCAT Member at first instance,27 a statement made by a supervising officer when he was questioned about DA’s suitability to remain as a police officer. He said: 23 DA v Deputy Commissioner Stewart [2011] QCAT 102 [34]. 24 DA v Deputy Commissioner Stewart [2011] QCATA 359 [60] 25 Deputy Commissioner Stewart v Dark [2012] QCA 228 [28]. 26 DA v Deputy Commissioner Stewart [2011] QCATA 359, Appendix “A”, chronology, p 27. 27 DA v Deputy Commissioner Stewart [2011] QCAT 102 [16] – [17]. -- 9 of 11 -- 10 Fairly directly I don’t think he displays the characteristics required, the ethical [sic] decision making or the ability to remain in the job…but I’ve seen a deterioration in his conduct to the point that he can lie point blank ah to enquiries both conducted by myself and by the Inspector... . 28 [42] It seems the learned QCAT Member took into account the officer’s observations when considering, in relation to matter 1, whether there was evidence of his rehabilitation. The supervising officer’s observations were made in a statement he gave in October 2007. They do not say anything about DA’s current state of rehabilitation. [43] The Appeal Tribunal has evidence of DA’s subsequent good conduct over the more than 5 years since the most recent misconduct occurred (in January 2008). Some of this information was not available to the original decision maker, who made his decision more than 3 years ago. [44] DA breached the protection order on three occasions between November 2007 and January 2008; he lied to his superior officer on 13 September 2007; and he gave his wife the document containing the false statement of intention on 28 March 2007. [45] Since that time he has remarried and helps his wife with her business. He has provided the Appeal Tribunal with strong references from persons who are aware of these proceedings and who hold him in high regard. There is no evidence of further misconduct before he was dismissed or any discreditable conduct since then. Other factors [46] DA has not been paid since he was dismissed from the QPS on 2 February 2010. Although the Appeal Tribunal set aside the dismissal, DA elected not to request reinstatement while the appeal process ran its course. While that may reflect realistic advice about the prospects of a stay being granted pending appeal, his decision not to seek reinstatement obviated the need for public funds to be incurred in maintaining the status quo. Regrettably, that has taken a further 18 months. [47] The Appeal Tribunal does not consider dismissal is the appropriate sanction. While the misconduct reflects poorly on DA’s character, it was, in the main, conduct in his private life and when he was under enormous stress from a protracted and bitter matrimonial dispute during which his wife enmeshed his colleagues in their affairs. These are extraordinary circumstances. [48] Given the period that DA has been off the force, it would be unfair to impose a sanction resulting in a deduction of paypoint, which would impact on his salary upon his return to the QPS. [49] The Appeal Tribunal will impose the sanction of 18 months suspension from the date DA was dismissed from the QPS. That period adequately 28 Vol 1 Part B: Interview with IS - 19 October 2007, page 79. -- 10 of 11 -- 11 reflects the extended period over which these incidents of misconduct occurred (between March 2007 and January 2008); the two distinct acts of dishonesty; and the three instances of non-compliance with domestic violence and family protection orders. [50] It is a lengthy period of suspension and should serve as a deterrent to others. Given the time that has passed since DA was dismissed from the QPS, he has served the sanction in full. -- 11 of 11 --