Chapman v Crime and Misconduct Commission [2012] QCATA 272

CITATION: Chapman v Crime and Misconduct Commission and Anor [2012] QCATA 272 PARTIES: Stephen Chapman (Applicant/Appellant) v Crime and Misconduct Commission Assistant Commissioner Paul Wilson (Respondents) APPLICATION NUMBER: APL437-11 MATTER TYPE: Appeals HEARING DATE: 24 August 2012 HEARD AT: Brisbane DECISION OF: Charles Brabazon QC, Member William LeMass, Member DELIVERED ON: 9 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is dismissed. 2. Affirm the order of 20 October 2011, that Senior Constable1 Chapman’s level of salary entitlements be reduced by two pay points for a period of two years. CATCHWORDS: Police Misconduct – Sanction – Pursuit Policy directions discussed – where respondent failed to follow pursuit policy contained in the Human Resources Management Manual 14.23.5-14.23.7 – where failure to notify local communications centre of the commencement of the pursuit – where failure to abandon pursuit where unacceptable risk to safety – where pursuit resulted in death and serious injury – was sanction imposed justified by officers’ conduct – the impact of delay Hardcastle v Commissioner of Police (1984) 53 ALR 593 1 Amended 5 February 2013. -- 1 of 7 -- 2 Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161 Aldrich v Ross (2001) 2 Qd R 235 APPEARANCES and REPRESENTATION: APPELLANT: Senior Constable Chapman represented by Mr P Smith of counsel, instructed by Queensland Police Union of Employees RESPONDENT: Crime & Misconduct Commission represented by Mr T D Gardiner of counsel instructed by Ms Wood (First Respondent) Assistant Commissioner Paul Wilson represented by Mr S A McLeod of counsel REASONS FOR DECISION The Pursuit [1] On 16 June 2006 at 11:42pm a young man, Craig Shepherd, was riding a powerful Triumph motorcycle along Beechmont Road. The brochure for the machine says that “the Rocket III is a whirling mechanized cycle of power … it may be the largest capacity production motor cycle in the world”. His girlfriend was a pillion passenger. They were some 660 metres past the Nerang-Murwillumbah Road, on a straight section of road. The road then turned sharply, following a cutting in the hillside. [2] Shepherd braked before the corner. It was not enough. They crashed into the rock wall of the cutting. He died instantly. His girlfriend was seriously injured. [3] It seems clear that Shepherd was determined to avoid interception by the police following him. He had a significant record of traffic offences. He had no license. He had been disqualified from holding a driver’s license. He was a patched member of a motorcycle gang, Odin’s Warriors. While he was an experienced and confident motor cycle rider he had owned the Triumph for just one week. He enjoyed riding at high speeds. His blood alcohol level was .0142 percent. It has to be accepted, that he was aware that he was being pursued by police. [4] Police car 792 carried two officers. Senior Constable Chapman was in the passenger seat. Constable Buckley was the driver. They had followed Shepherd and his girlfriend for 40km. The average speed was 160kph. They wanted Shepherd to pull over, but he kept ahead of them. He was a confident rider, and earlier had driven at up to 200km/h on the motorway. On this night he was guilty of speeding, dangerous driving, 2 Amended 5 February 2013. Counsel’s submissions and parts of the material provided to the Tribunal referred to a blood alcohol level of .14%. That was incorrect. The correct BAC was .014%. -- 2 of 7 -- 3 and going through a red light. It is common ground that the chase was “urgent duty driving” up to the point when the motorcycle reached the Mobil Service Station at Nerang. [5] After that, it is accepted, the chase became a pursuit. Flashing lights and the siren were activated. The police officers were subject to special rules which had then been recently published in the Human Resources Management Manual. [6] The pursuit was over 7.6kms to the crash site. Senior Constable Chapman is accused of two failures – to notify the radio operator as soon as possible, and to terminate the pursuit in accordance with the pursuit policy. He admitted his failure to immediately contact “Comms”. Notification was mandatory at the beginning of the pursuit, so that he might have supervision from an independent officer. He attempted contact at a point near the Beechmont turnoff – probably several kilometres after the start of the pursuit. He “cut into” a call from another police vehicle. He asked Comms to call him on his mobile phone. Those efforts failed. He used his phone, to call to car 973. He used the radio to ask for urgent assistance at the crash scene. [7] The more important charge against him is the failure to call off the pursuit before the motorcycle crashed. It is said that, after turning into Beechmont Road, he should have terminated the pursuit – by turning the flashing lights and siren off and pulling the police car over, and stopping. That stretch of Beechmont Road, up to the site of the crash, was 660 metres long. The allegation against him is confined to that part of the pursuit. [8] It is possible to set out the most favourable view of the evidence involving Senior Constable Chapman. After turning into Beechmont Road, the two officers discussed calling off the pursuit. The driver, Constable Buckley, reduced speed. The siren was turned off. The flashing lights stayed on. They were 200-300 metres from the bike when they saw its light spin around – the crash. They were still travelling at around 60kph. [9] The QCAT Members, Mr Thomas and Mr Oliver, found that the pursuit only ended when the motorcycle crashed, and that the police car stayed the same distance from it, while travelling along Beechmont Road. They do not mention any slowing down, or the turning off of the siren. [10] In either case, it is clear that the pursuit had not ended at the time of the crash. It is very likely that any slowing down, and turning off the siren, had no impact on Shepherd. [11] The car’s headlights and flashing lights were still on, and it had not stopped. It is not possible to upset their finding that their pursuit ended only with the fatal crash. The Pursuit Policy -- 3 of 7 -- 4 [12] At the time the relevant parts of the Commissioner’s circular were paras 14.23.5-14.23.7. There is no issue about starting the pursuit. Should it have been abandoned earlier? Para 14.23.7 deals with abandoning a pursuit: A pursuit must be abandoned immediately if it creates an unacceptable risk to the safety of any person. The criteria … of this manual, under the heading “Justification for initiating or continuing a pursuit” must be continually assessed by all officers involved in a dispute and must be considered when deciding whether to abandon the pursuit. Officers are to abandon a pursuit when: i) The known circumstances do not justify the risk ii) The pursuit exposes the public or police to unjustifiable risk iii) Continuing the pursuit is futile The criteria in the manual include: i) The safety of all persons (i.e. police officers … and offenders is paramount) ii) The known circumstances that initiate the pursuit. iii) The possible consequences. iv) The manner in which the pursued vehicle is being driven, including the speed of both vehicles. … The mandatory operating principle is “the safety of police, … and offenders is paramount”. The pursuit must be abandoned if the risk outweighs the necessity for, and known circumstances, of pursuit. The Appeal [13] In this case, it has to be accepted that the pursuit should have been abandoned, as soon as Beechmont Road was reached. It was obviously dangerous. The “known circumstances” that started the pursuit were driving offences – that is, not offences in a very serous category. [14] The Members’ judgment found that, “clearly the continuation of the police pursuit until the motorcycle ran into the rock wall was a contributing cause of the disaster”. That was an inevitable finding, supported by the evidence. [15] The real issue in this appeal is about the appropriate sanction. Several things have to be considered: (a) Acting Commissioner Wilson found that Mr Chapman failed to comply with the pursuit policy. He fined him $200 – that was the limit of his power to impose a fine. (b) Mr Chapman had been a sworn officer since 1991. He served four years in the Victorian police force, and then ten years in the QPS. He had been promoted to senior constable in 2000. He had done relieving work as an acting sergeant. His discipline record was exemplary – this is the only complaint substantiated against him. At the time of these events, he was 43 years old. He is now 48, and on pay point 2.9. -- 4 of 7 -- 5 (c) In substance, the Tribunal members found that Mr Chapman’s conduct was the product of faulty judgment in a tense situation – or over-zealousness in the performance of police duties. He pleaded guilty to the failure to contact “Comms” immediately. (d) The object of disciplinary proceedings is to protect the police and public, to maintain proper standards of conduct by members of the police force, and to protect the reputation of the force. An object is to correct the conduct of an officer, rather than to punish: see Hardcastle v Commissioner of Police (1984) 53 ALR 593. (e) The Tribunal members found that the fine of $200 was manifestly inadequate. They imposed a sanction of the loss of two pay points for two years. That amounts to a pay reduction of some $14,000, spread over two years. (f) The Tribunal members said that they took into account the stress of five years delay before their judgment. They did not explain the extent to which that delay affected their final decision. (g) The CMC asks that he be dismissed from the force. However, it seems to us that such a severe penalty would be quite outside the range of possible punishments. He did not deserve that. Delay [16] We are concerned about the impact of delay. Mr Chapman was interviewed twice, up to September 2006. A disciplinary hearing was postponed, in August 2009 – perhaps because of the inquest. The Coroner suggested that Mr Chapman might be guilty of a breach of discipline. He and Constable Buckley gave evidence. There was a delay of 13 months before he was again interviewed. There was a further delay of another year, before he was asked to attend a disciplinary hearing, in January 2011. The fine was imposed on 2 February 2011 – four and a half years after the pursuit. The Tribunal proceedings have added another year and a half to the delay – now some six years. [17] At the end of the hearing of the appeal, we raised the issue of information about the possible impact of delay on Mr Chapman. His counsel said that some information would be provided. There was no objection to that course. [18] Not surprisingly, the delay has had an impact on Mr Chapman. He has provided a statement dated 12 October 2012. There has been some concern about the accuracy and relevance of that statement. However, because of the view which we reach about the ultimate result of this appeal, we see no point in prolonging debate about the precise impacts on Mr Chapman. [19] It is not surprising that he refers to the delay after the inquest, until charges were brought against him, as “the worst period of my life.” He describes impacts on his confidence and on his home and family life. He -- 5 of 7 -- 6 has recently applied for a transfer to north Queensland, so that he might make a fresh start there. [20] It must be said that such delays are most unfortunate. They should not be allowed to happen again. [21] (It may be of assistance to the parties, to make an observation that has no impact on the question of delay, and the merits of this appeal. He says that he has worked unsupervised for 12 years, and has felt a bitter blow, as a senior police officer has said that he is not suitable to work unsupervised, and that he is, “an unacceptable risk because of his integrity” – that is, relating to these QCAT matters. It might be noted, if that was said, that he has been acquitted of any dishonesty. The Assistant Commissioner’s findings, to that effect were set aside. On appeal, the conclusive QCAT finding was that he had no dishonest purpose or intention to mislead.) Comparable Cases [22] It seems that there is little helpful guidance in comparable cases. Mention was made of Eaton’s case [2011] QCAT 161. That officer drove at high speeds (225km/h) on the highway, when pursuing another vehicle, and at high speeds (150km/h) in a 60kph zone. There was no crash. It was also found that he contravened the pursuit directions by commencing an unauthorised pursuit and “failed to turn on his flashing lights and siren, and drove without the care and attention.” If that comment was made, then it was unfair to him. [23] Senior Sergeant Eaton had been in an earlier pursuit, which resulted in death. In the above case, he discontinued the pursuit, after driving very fast, at up to 225km/h on the highway, and up to 160km/h in a 60km/h zone. [24] He suffered a reduction of two pay points over nine months. The present case is more serious, because of the death. [25] It was submitted for Mr Chapman that no mention was made of the decision in Aldrich v Ross (2001) 2 Qd R 235. That omission, it was said, amounted to an error of law. Conclusion [26] Aldrich v Ross applies two general principles. First, a senior police officer brings much experience of police operations when considering a breach of discipline – how serious is a particular breach when considered with the benefit of “service knowledge”? Secondly, the imposition of a penalty is the exercise of a discretionary power. That discretion should not be interfered with, unless it is shown to be outside the permissible range of disciplinary orders. [27] In this case, the Tribunal found that the $200 fine was “manifestly inadequate” – that is, so lenient as to be below the range of acceptable -- 6 of 7 -- 7 sanctions. It should be accepted that the Tribunal was well aware of these principles. One member, Mr Thomas QC, had sat as a member on the Court of Appeal which decided Aldrich v Ross. [28] We have to agree with the Members’ decision that the fine of $200 was “manifestly inadequate”. When due weight is given to the death, and that the cause of the pursuit was traffic offences, it can be seen that the officer made a considerable error of judgment. A more severe sanction had to be imposed. [29] The Members’ judgment resulted in the loss of two pay points for two years – on a yearly salary of approximately $90,000, that meant a total loss of $14,000 over a two year period. [30] In the result, no error of law or fact in the reasons has been established. Their judgment was the result of the exercise of their discretion. The question here is, did they reach a decision which went beyond the limits of a proper exercise of that discretion? If they did, then we would be entitled to substitute our own judgment for theirs. In this case, it has to be said that their conclusion, and order, were within those limits. It follows that the appeal should be dismissed. [31] The appeal is dismissed. -- 7 of 7 --