Crime and Misconduct Commission v Flegg [2013] QCATA 29

CITATION: Crime and Misconduct Commission v Flegg and Anor [2013] QCATA 029 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Warren Flegg (First Respondent) Clement David O’Regan, Assistant Commissioner (Second Respondent) APPLICATION NUMBER: APL092-12 MATTER TYPE: Appeals HEARING DATE: 16 November 2012 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Dr Bridget Cullen, Member DELIVERED ON: 20 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. Further submissions in writing from the parties on sanction be filed and exchanged by 4:00 pm on 19 March 2013. 3. Liberty to each party to apply to make further oral submissions upon 7 days notice in writing to the Tribunal. CATCHWORDS: APPEAL – OCCUPATIONAL REGULATION – POLICE OFFICER – where first respondent failed to take appropriate and required action in his role as search and rescue mission coordinator in relation to a vessel that sank in the Torres Strait – where disciplinary proceedings were brought against first respondent – where the second respondent conducted disciplinary proceedings and determined sanction – where first respondent was demoted from Sergeant 3.5 to Senior Constable 2.9 – where second respondent -- 1 of 11 -- 2 ordered that the sanction be suspended subject to the first respondent completing training programs on proper professional practice – where that decision was reviewed by the Queensland Civil and Administrative Tribunal and second respondent’s decision was determined to be appropriate – where the applicant seeks to appeal that decision on the grounds that the sanction was unreasonably or plainly unjust – where appeal is on a question of law and Appeal Tribunal has power to set the original decision aside and substitute its own – whether the sanction was so obviously unreasonable and unjust that it should not be allowed to stand Aldrich v Ross [2001] 2 QdR 235, cited Crime and Misconduct Commission v Assistant Commissioner Barnett & Anor [2011] QCAT 161, cited Crime and Misconduct Commission v Flegg & Anor [2012] QCAT 74, cited House v The King (1936) 55 CLR 499, applied Police Service Board v Morris (1985) 156 CLR 397, cited Queensland Police Service v Compton [2011] QCATA 112, cited The Queen v Wilton (1981) 28 SASR 362, cited Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 27, 142(3), 146 APPEARANCES and REPRESENTATION (if any): APPLICANT: M J Copley of Senior Counsel instructed by Official Solicitor to the Crime and Misconduct Commission FIRST RESPONDENT: P E Smith of Counsel instructed by Gilshenan and Luton Solicitors SECOND RESPONDENT: C M Heffner -- 2 of 11 -- 3 REASONS FOR DECISION Justice Alan Wilson, President The loss of the Malu Sara [1] Five people perished when the vessel Malu Sara sank in the Torres Strait in October 2005. During the late afternoon of 14 October the vessel reported it was lost in fog and, from just after 7:00 pm, Sergeant Flegg was in control of the search and rescue operation. He remained on duty in that role during the night of 14/15 October, at times when the vessel was still afloat but in distress and, in particular, when it was reported to be taking water and sinking in the early hours of 15 October. [2] During the evening and early morning, Sergeant Flegg had several conversations with the vessel and with others who were in contact with it. Its location was never fixed, despite the use of satellite technology. Those conversations, the information imparted in them, and Sergeant Flegg’s response to that information were central to the matters arising in this appeal. [3] The body of only one of the five occupants of the Malu Sara was ever found. The State Coroner conducted an inquest into their deaths in 2007 and 2008 and delivered his findings in February 2009. [4] It is not in issue that, as the State Coroner found, the last contact with the vessel was shortly after 2:00 am on 15 October when one of its occupants reported that it was taking on water, and sinking. That information was conveyed to Sergeant Flegg but he did not pass it on to the Australian Maritime Safety Authority Rescue Coordination Centre (‘AusSAR’). Instead, he told the AusSAR officer that ‘…they’re starting to take a bit of water in and they’re bailing out’. [5] The State Coroner concluded that, within about an hour, the vessel became submersed or capsized.1 [6] The State Coroner’s summary of the information Sergeant Flegg had by 1.33 am, around 45 minutes before the last call from the vessel, was that he: …knew the open boat had been at sea for more than 12 hours, had been lost since before darkness fell, the sea was rough and they were in open, unprotected waters, there were women and a child on board, water had been coming into the boat for some hours, communication with the boat was difficult and unreliable and it no longer had means of propulsion.2 The State Coroner was critical of Sergeant Flegg’s actions in the face of these circumstances. 1 Inquest into the loss of the Malu Sara, unreported, State Coroner Barnes, Coroner’s Court at Thursday Island, Qld, 12 February 2009 at 68. 2 Ibid. -- 3 of 11 -- 4 Internal Police Disciplinary proceedings against Sergeant Flegg [7] Disciplinary proceedings were brought against Sergeant Flegg under the Police Service Administration Act 1990 (Qld), conducted and determined by Assistant Commissioner O’Regan. [8] The particular charges were that Sergeant Flegg failed to take appropriate and required action in his role as search and rescue mission coordinator in relation to the Malu Sara; failed to take appropriate action as a result of information he received including considering the degree of danger for the people aboard the vessel, utilising appropriate assets particularly available aircraft, dispatching waterborne assets, and seeking greater assistance from AusSAR; and, failing to provide full and appropriate advice to AusSAR including, importantly, information he received that the vessel had reported it was sinking. [9] In March 2011, Assistant Commissioner O’Regan reported his finding that the charges were substantiated and ordered that Sergeant Flegg be demoted from Sergeant to Senior Constable for two years from 31 March 2011. Assistant Commissioner O’Regan also ordered that the sanction be suspended subject to Sergeant Flegg successfully completing certain training programs on proper professional practice within the Police Service on multicultural awareness and race relations with, and social issues for, Aboriginal and Torres Strait Islander peoples in Australian society. Review proceedings in QCAT [10] The Crime and Misconduct Commission (‘CMC’) applied to this Tribunal to have that decision reviewed. A QCAT Senior Member determined, in reasons published on 24 February 2012, that the sanction imposed by the Assistant Commissioner should not be interfered with and was appropriate. QCAT decision appealed [11] The CMC appeals that decision. It does so on the basis that no reasonable Tribunal could have confirmed Assistant Commissioner O’Regan’s decision on sanction which was, in the well known phrase taken from House v The King3 (‘House’), ‘unreasonable or plainly unjust’4. [12] In House, Dixon, Evatt and McTiernan JJ discuss two instances in which an appeal court might fairly interfere with the discretion involved in deciding an appropriate punishment, penalty or sanction for wrongdoing.5 The first is where there is some apparent or manifest error in the original decision – where it can plainly be seen, for example, that the decision maker has acted upon a wrong principle, or failed to take material matters into account (or allowing irrelevant matters to guide the process), or made a mistake about the facts. 3 (1936) 55 CLR 499. 4 Ibid 505 per Dixon, Evatt and McTiernan JJ. 5 Ibid. -- 4 of 11 -- 5 [13] The second is where an error of this kind is not readily apparent, or when it is not clear just how the primary decision-maker reached the result but, upon the facts, the sanction is unreasonable or plainly unjust. The appellate court may infer that, in some way, there has been a failure to properly exercise the discretion. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. [14] The CMC says this is what has happened here. The misconduct was, it says, so serious that the sanction is plainly inadequate and inappropriate. If this Appeal Tribunal takes that view, the CMC does not require leave to appeal.6 Was the sanction imposed on Sergeant Flegg unreasonable? [15] For the reasons which follow I am persuaded that the decision about sanction here should be properly categorised in that way. Sergeant Flegg’s misconduct cannot, as the learned Senior Member observed, be understated.7 [16] The State Coroner’s findings, accepted by Assistant Commissioner O’Regan as a ‘…clear demonstration of the degree of misconduct’,8 included the following:  That some time shortly before midnight on 14 October 2005 Sergeant Flegg was told by a person on the vessel that it was at anchor but out of oil, but this information did not prompt him to take any action despite the other troubling, prevailing circumstances mentioned in paragraph [6]; and  Information was relayed to Sergeant Flegg from the vessel, through another person, at around 2:15 am on 15 October 2005 that it was taking on water and sinking, but: Astoundingly he did not pass the information onto AusSAR when he spoke with one of its officers at 2:26 am. Nor did he tell the Thursday Island Volunteer Marine Rescue service this information when he called them at about 2:30 am.9 [17] Assistant Commissioner O’Regan found that Sergeant Flegg failed to keep an accurate log of the search and rescue incident; failed to adequately respond in a timely manner as the seriousness of the incident escalated through the evening and early morning; failed to take decisive, constructive action when he had sufficient information to indicate to a reasonable person that the boat was in distress and in need of direct 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3) (‘QCAT Act’); See also Queensland Police Service v Compton [2011] QCATA 112 at [10]. 7 CMC v Flegg & Anor [2012] QCAT 74 at [29]. 8 Report on Decision of Disciplinary Hearing, Assistant Commissioner CD O’Regan, 9 March 2011 at 20. 9 Inquest into the loss of the Malu Sara, unreported, State Coroner Barnes, Coroner’s Court at Thursday Island, Qld, 12 February 2009 at 68. -- 5 of 11 -- 6 assistance; and, failed to pass onto the relevant authorities vitally important information, crucial to their assessment of and response to the incident – namely, that the vessel was sinking. [18] Sergeant Flegg was a very experienced and knowledgeable water police officer.10 Assistant Commissioner O’Regan concluded that Sergeant Flegg’s misconduct was the product of two entirely unjustified assumptions. They were, first, that because the Malu Sara was a brand new Commonwealth Patrol vessel with an experienced crew, it was seaworthy. Assistant Commissioner O’Regan also concluded that, in light of the information Sergeant Flegg received during the time he was on duty, this assumption provided neither a defence nor a satisfactory explanation for the his conduct.11 [19] That conclusion is compelling. Continuing reports of increasing problems with the boat ought, by themselves, have persuaded Sergeant Flegg that the assumption was wrong, or irrelevant. Even if it was maintained, the increasingly worrying circumstances piling up during the night, summarised by the State Coroner, dictated something more than a ‘passive’12 response. To ignore them was, whatever the strengths or weaknesses of the vessel itself, an unsustainable conclusion. [20] Secondly, Assistant Commissioner O’Regan concluded that Sergeant Flegg had wrongly assumed from the outset that the very nature of this search ‘… was one of the convenience of the vessel’s crew and not one of real urgency’13 and that the Sergeant, as a result, ‘…took this matter too lightly’.14 This conclusion arose, the Assistant Commissioner determined, because the officer’s previous experience had left him wary, or dubious, about claims of distress from vessels in the Torres Strait.15 [21] In light of these matters, the sentence here can only be described as surprising. The nature and degree of the misconduct raises immediate and compelling concerns about the calibre of the officer’s response to a dangerous situation, of increasing urgency. Mitigating factors [22] The Assistant Commissioner also accepted, however, that there were mitigating factors. They were, first, that Sergeant Flegg did not have adequate support as the lone officer in charge of the rescue mission, and could not properly perform all the functions of coordinating and managing a search and rescue operation without at least one other properly trained officer to assist – assistance he did not have. 10 Report on Decision of Disciplinary Hearing, Assistant Commissioner CD O’Regan, 9 March 2011 at 24. 11 Ibid 33. 12 Ibid 24. 13 Ibid 15. 14 Ibid 25. 15 Ibid 24. -- 6 of 11 -- 7 [23] Secondly, Sergeant Flegg did not have proper supervision because he could not properly liaise and discuss his decisions and assumptions with his Regional Duty Officer. [24] Thirdly, he was suffering from fatigue. He had completed his ordinary shift from 8:00 am to 4:00 pm on 14 October 2005, was recalled to duty at 7:15 pm that evening and had therefore been awake and on duty for over 14 hours in the early hours of 15 October 2005. Weighing the nature of the misconduct, and the mitigating factors [25] It is the weight to be attached to these mitigating factors in the context of the nature of the misconduct and, in particular, the conclusion both by the Assistant Commissioner and the learned Senior Member that they warranted suspension of the penalty which brings this matter within the ambit of the principle discussed in House. It is not clear how they can be seen to warrant the decision to suspend which, while it does not obviate the sanction, plainly has a major mitigating effect upon its force and effect. [26] The Assistant Commissioner’s reasons for suspension are, with respect, less than apparent. After reciting what are described as mitigating factors, his Report says not more than that, ‘…[g]iven the various mitigating factors in this matter I have accepted this course…’. [27] The learned Senior Member’s Reasons record that ‘…[t]he sanction imposed was carefully considered by the Assistant Commissioner taking into account not only the conduct of Sgt Flegg in the performance of his duty that night but also the mitigating factors.’16 [28] On review, the Tribunal’s duty is to impose sanctions that, in the words of the Honourable James Thomas AM QC, ‘best fits the case, whether it be lighter or heavier than that originally imposed.’17 [29] Sergeant Flegg was charged with an important duty, involving the lives of others who were in peril at sea. He had been on duty throughout the previous day, and he was unsupported. But his misconduct cannot be explained by those things. He failed to keep a proper log. He failed to take steps to identify and use rescue assets in the area, or to keep AusSAR informed and seek timely and appropriate assistance from it. His response was, as the Assistant Commissioner found, ‘passive’18 when the information he was receiving plainly justified urgent, active steps. [30] Critically, he failed to pass on information that the vessel was sinking and, even an hour later, was speaking to AusSAR in terms that the vessel’s occupants ‘…were sick of being out there and want to get home.’19 It is 16 CMC v Flegg & Anor [2012] QCAT 74 at [48]. 17 CMC v Assistant Commissioner Barnett & Anor [2011] QCAT 161 at [22]. 18 Report on Decision of Disciplinary Hearing, Assistant Commissioner CD O’Regan, 9 March 2011 at 24. 19 Inquest into the loss of the Malu Sara, unreported, State Coroner Barnes, Coroner’s Court at Thursday Island, Qld, 12 February 2009 at 74. -- 7 of 11 -- 8 vital that the community have confidence that police officers will assiduously and effectively perform their duties, especially when lives are in danger. To speak in terms like these after being told the vessel was sinking is inexplicable. [31] As the learned Senior Member observed, the misconduct is not susceptible to being understated. The imposition of a suspended sentence cannot, on any view, be seen as a satisfactory sanction in light of the seriousness of the matter. The prevailing circumstances compelled a much better and more effective response from the officer, and the degree to which his conduct fell short can only be described as major. [32] Nor do the mitigating factors, by themselves, abate that level of misconduct to a degree which justified the suspension. They were to be weighed against the level of the misconduct, but it does not appear that exercise was undertaken. When it is, they may justify something less than a penalty within the most serious range of sanctions, like dismissal. However, they do not warrant further reduction of a penalty that is already some way short of the very serious consequences which the misconduct called into consideration. The CMC case before QCAT [33] There is another aspect to this matter: the learned Senior Member’s decision was made in the face of submissions from the CMC that Sergeant Flegg’s misconduct was so serious that it warranted dismissal from the Police Force. [34] In this appeal it has changed its position. The CMC now contends that Sergeant Flegg should have been reduced in rank and classification from Sergeant 3.5 to Senior Constable 2.9, without the benefit of suspension of that sentence. [35] The effect, as I understand it, of the unsuspended sanction imposed by the Assistant Commissioner would have reduced Sergeant Flegg to that rank for two years from 31 March 2011, where after he would have been eligible to apply for the position of Sergeant upon being of good conduct during that period. [36] As a matter of principle, contentions which are not put to a sentencing judge may only, usually, be advanced on appeal in exceptional circumstances justifying that course.20 In disciplinary proceedings of this kind and in review proceedings in this Tribunal, the circumstances are different. [37] First, the task confronting the learned Senior Member was to produce the correct and preferable decision by hearing and deciding the review application, by way of a fresh hearing on the merits.21 As the Queensland 20 The Queen v Wilton (1981) 28 SASR 362 at 368 per King CJ. 21 QCAT Act, s 27. -- 8 of 11 -- 9 Court of Appeal identified in Aldrich v Ross [2001] 2 QdR 235, an appeal from a Tribunal decision of this kind is not limited by the principles of House or by the need to identify some error that the original decision maker had committed. [38] Secondly, the Tribunal was not constrained to consider only the sanction for which the applicant contended. In particular, the Honourable James Thomas AM QC held: In the ordinary course, that a Tribunal member would come to a conclusion on a CMC appeal that the sanction already imposed was too high, it is by no means impossible that after a complete fresh review the case might wear a different aspect, and that such a conclusion should be reached.22 [39] The Honourable Member went on to observe: … the Tribunal might reach the view that a sanction of a different kind might be more appropriate, such as any combination of demotion, reduction in pay point, reprimand, fine, dismissal, and whether any part of the order should be suspended.23 [40] These were all, as he recognised, findings that were open because the proceeding in the Tribunal was a fresh hearing on the merits to be decided on both the original material and any fresh evidence; and, an ‘…entirely different factual perspective maybe opened up which may call for an order more or less severe than the original one.’24 [41] It is not clear, from the learned Senior Member’s reasons, whether he felt himself so constrained by the CMC’s submissions to him. In those Reasons he observed, that the CMC had not suggested any alternate penalty having regarding to the various mitigating factors that he felt he should properly take into account, and neither was he referred to any comparable decisions.25 He then, however, went on to say: Even accepting dismissal as the starting point given his admitted misconduct, the significant mitigating factors including, his good service record, financial penalty, delay and those matters associated with the search and rescue, must all militate to the imposition of a lesser sanction. I am not persuaded that Sgt Flegg should be dismissed from the Police Service nor am I persuaded that he should be dismissed and the dismissal be suspended.26 [42] It is compelling, with respect, that the learned Senior Member felt some constraint upon the discretion open to him by reason, on the one hand, of the Assistant Commissioner’s conclusions – to which, as he properly observed, he should give proper weight, and regard – and the CMC’s only 22 CMC v Assistant Commissioner Barnett & Anor [2011] QCAT 161 at [19]. 23 Ibid. 24 Ibid. 25 CMC v Flegg & Anor [2012] QCAT 74 at [52]. 26 Ibid [52]-[53]. -- 9 of 11 -- 10 submission on penalty: that Sergeant Flegg ought to be dismissed from the Police force. Whether or not that perception affected his decision is not, of course, the test to be applied here. The question is whether the sanction was so obviously unreasonable and unjust that it should not be allowed to stand. Conclusion [43] The recitation of the relevant circumstances and Sergeant Flegg’s misconduct compels the conclusion that a suspended sentence, notwithstanding an attached requirement that the officer undergo some particular training programs, cannot reasonably be said to reflect the seriousness of that misconduct. [44] That requirement – to undergo training programs on cultural sensitivity and understanding – was apparently motivated by an observation that while the officer had significant experience with indigenous people and indigenous communities, he would benefit from training which would enhance his understanding of indigenous people and how they communicate, particularly with those in authority positions.27 [45] That conclusion and the imposition of a requirement for these programs do not properly address the nature of the misconduct: in particular, the failure to communicate information that the vessel was sinking cannot reasonably be addressed by programs designed to achieve better cultural understanding. [46] That misconduct goes to the heart of the role the officer was undertaking in the course of part of his duties – protecting the community. The communities’ confidence in the effectiveness of the police rests upon officers assiduously performing their duties.28 [47] Sergeant Flegg’s duty here was to provide services and render help reasonably sought in an emergency. His failure to pass on critical information as soon as practicable was a very serious omission, particularly when he was a trained search and rescue coordinator. The failure to discharge that duty persisted for some hours, compounding its seriousness. As the learned Senior Member observed, it was not susceptible of understatement.29 [48] It is inescapable that no reasonable Tribunal could have concluded that the Assistant Commissioner’s decision would be effective in promoting and maintaining public confidence in the Queensland Police Service, or proper standards of conduct within it. The misconduct called for the imposition of a sanction commensurate with the seriousness of it. 27 Report on Decision of Disciplinary Hearing, Assistant Commissioner CD O’Regan, 9 March 2011 at 34. 28 Police Service Board v Morris (1985) 156 CLR 397 at 412 per Brennan J. 29 CMC v Flegg & Anor [2012] QCAT 74 at [29]. -- 10 of 11 -- 11 [49] On appeal on a question of law – which this is, once it is accepted that the original sanction is exposed to being altered because it falls within the House principles – this Appeal Tribunal has wide powers including the power to set the original decision aside, and substitute its own.30 [50] The CMC now argues that the proper sanction was a reduction in rank, but without the benefit of a suspension of that reduction. I agree that a sanction of that kind would properly reflect the nature of the misconduct and the mitigating factors, and constitute an appropriate sanction. [51] Because the circumstances of Sergeant Flegg’s employment may have changed, it is appropriate to hear from the parties about the correct form of wording which will achieve an order imposing a sanction on these lines. [52] In my view the sentence should be altered to remove the provision for suspension and it should be ordered that the officer should, in the phrases used in the order of the Assistant Commissioner of 9 March 2011, be demoted from the rank of Sergeant 3.5 to the rank of Senior Constable 2.9 for a period of two years from a date to be decided after further submissions; and, that the officer be eligible after two years to apply for the position of Sergeant, also upon conditions which should, again, be the subject of further consideration. [53] The appropriate orders are that the appeal be allowed, and that further submissions in writing from the parties on sanction be filed and exchanged by 4:00 pm on 19 March 2013. In case any party also wishes to make further oral submissions, there will be liberty to apply on seven days notice in writing. Dr Bridget Cullen, Member [54] I have had the advantage of reading the reasons of Justice Alan Wilson in draft. I agree with them, and with the conclusions he has reached and the orders he proposes. 30 QCAT Act, s 146. -- 11 of 11 --