Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16

CITATION: Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16 PARTIES: Damien Chapman (Applicant/Appellant) v Crime and Misconduct Commission (First Respondent) Deputy Commissioner Kathy Rynders, Queensland Police Service (Second Respondent) APPLICATION NUMBER: APL363-10 MATTER TYPE: Appeals HEARING DATE: 25 July 2011 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 6 February 2012 DELIVERED AT: Brisbane ORDERS MADE: Appeal dismissed. CATCHWORDS: APPEAL – QUESTION OF LAW – FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS – TAKING INTO ACCOUNT IRRELEVANT CONSIDERATIONS – DISCIPLINARY PROCEEDINGS – IMPROPER CONDUCT – where the Crime and Misconduct Commission sought a review of Internal Police Service disciplinary charges alleging misconduct – where QCAT Tribunal found the appellant guilty of improper conduct in the course of his work as a sergeant in the Queensland Police Service – whether the QCAT Tribunal took into account irrelevant considerations – whether the decision of the QCAT Tribunal was against the evidence – whether the QCAT Tribunal made errors of fact vitiating its conclusions Crime and Misconduct Act 2001, ss 219BA, 219G Police Service Administration Act 1990, s 7.4 Queensland Civil and Administrative Tribunal Act -- 1 of 10 -- 2 2009, ss 17-20 Aldrich v Ross [2001] Qd R 235 Briginshaw v Briginshaw (1938) 60 CLR 336 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Neat Holdings v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Rejfek v McElroy (1964-5) 112 CLR 517 Whitemore v O’Sullivan [2010] QCA 366 APPEARANCES and REPRESENTATION: APPELLANT: Mr Smith of Counsel representing Damien Chapman RESPONDENTS: Mr Allen of Counsel representing the Crime and Misconduct Commission Mr McLeod of Counsel representing Queensland Police Service REASONS FOR DECISION [1] Mr Chapman, formerly a sergeant in the Queensland Police Service, was found last year by a QCAT Tribunal to be guilty of improper conduct, in that he used excessive force while arresting a 15 year old youth at Clontarf on 18 May 2007. The youth suffered a ruptured spleen on that day, at a time when he was in police custody. [2] Internal Police Service disciplinary charges alleging misconduct were initially decided in Mr Chapman‟s favour by a Deputy Commissioner. The CMC sought a review before QCAT and, after a hearing, the Tribunal (comprised of the Hon James Thomas AM QC and Ms S Booth, Senior Member) found Mr Chapman guilty of improper conduct1. [3] Following that decision, Mr Chapman resigned from the police force. At a subsequent hearing about penalty the Tribunal indicated that, but for his resignation, it would have ordered that he be dismissed. This is an appeal from the decision in which he was found guilty of improper conduct. [4] The appeal contains numerous questions of law, but the primary ground argued is that the Tribunal‟s decision was contrary to and against the weight of evidence. Under s 142(3)(b) of the QCAT Act, the primary ground can only be argued and heard if the Appeal Tribunal‟s leave to do so is obtained. Leave was granted at the commencement of the appeal hearing before the Appeal Tribunal on 25 May 2011. [5] It is said, in particular, that the Tribunal fell into error in: failing to properly direct itself as to the effect of the youth‟s previous convictions; wrongly 1 Crime and Misconduct Commission v Deputy Commissioner Qld Police Service & Chapman [2010] QCAT 564. -- 2 of 10 -- 3 accepting his evidence and failing to find that his complaint was unreliable because he said different things about the alleged assault at different times; what is said to be the inherent improbability of his version of the alleged assault; and, generally, in its analysis of the evidence of a number of other witnesses. [6] Mr Chapman‟s other grounds are: that the Tribunal took into account an irrelevant consideration, namely, alleged deficiencies in the disciplinary process in the Queensland Police Service; that the Tribunal failed to properly apply principles laid down in the decision of the Queensland Court of Appeal in Aldrich v Ross2; and, that the Tribunal failed to have regard to the question whether the arrest of the youth, in the course of which the injury is alleged to have occurred, was a lawful one. [7] The QCAT hearing took place on 4 November 2010. On 19 November the Tribunal delivered an 18 page document containing the reasons for its decision. As those Reasons record, the matter began with disciplinary proceedings within the Police Service in which Deputy Commissioner Rynders determined, on 18 December 2009, that disciplinary charges of misconduct against Mr Chapman were unsubstantiated. That proceeding was brought and conducted within the Service under s 7.4 of the Police Service Administration Act 1990. [8] Although the CMC was not a party to that original disciplinary action, it applied to QCAT for review. The CMC has that right under ss 219BA and 219G of the Crime and Misconduct Act 2001. [9] The evidence before QCAT consisted of the 745 pages of material which had been considered by Deputy Commissioner Rynders, and the 110 page record of the proceedings conducted before her. As the Tribunal observed, it was bound to make its own decision on that material but with the disadvantage that, although there were direct conflicts in the evidence, the QCAT Members did not see or hear from any witnesses. [10] Notwithstanding those strictures the lengthy Reasons show the learned Members carefully considered and analysed the large amount of evidence presented to them and, ultimately, made findings about credit issues. The Reasons also explain, in considerable detail, how those findings came to be made. [11] Nevertheless Mr Chapman advances a strong and wide-ranging attack against the Tribunal‟s conclusions. Of his 33 pages of written submissions to this Appeal Tribunal, 25 are directed towards the argument that the Tribunal was wrong when it found that the complainant youth had been ‘generally truthful‟3, and that the evidence supporting findings adverse to Mr Chapman was ‘overwhelming‟4. 2 (2001) 2 Qd R 235. 3 [2010] QCAT 564 at [93]. 4 At [94]. -- 3 of 10 -- 4 [12] When the alleged assault took place, only two persons were present: the complainant youth and Mr Chapman. As the Reasons observe, they gave diametrically opposed versions of the relevant events.5 [13] In a case in which the livelihood and career of a police officer was in issue, a high degree of caution and restraint in the fact finding process was both required and appropriate.6 That was acknowledged by the learned Members, as was the need to apply the proper standard of proof. The Reasons observe7 that the principles referred to in Briginshaw v Briginshaw8 (and subsequent clarifications such as those in Rejfek v McElroy9 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd10) are to be applied; and, that because the proceeding was a disciplinary one capable of producing serious consequences for Mr Chapman, the necessary reasonable satisfaction was not to be reached lightly, or on flimsy evidence. [14] At para [21] the learned Members announced their intention to attempt to summarise all of the evidence presented to the Tribunal. That exercise occupies the ensuing 42 paragraphs of the decision, over eight pages. It is then followed by a section headed „Discussion‟ commencing at [64] and continuing through to [95] over another seven pages. [15] It is appropriate to observe that the presiding Member was a former judge of immense experience. The Reasons reflect, with respect, the advantage of that experience. They address every one of the evidentiary matters now challenged by the appellant – the criminal history of the complainant youth; the contents of the hospital file about his injuries; proceedings against him in the Magistrates Court; his recorded versions of the alleged assault and circumstances of it, and alleged inconsistencies in them; the evidence of his associates; the evidence of Mr Chapman; and, the evidence of seven other police officers. [16] In the appellant‟s written submissions, heavy emphasis is placed upon three particular aspects of the youth‟s evidence: what are said to be serious inconsistencies in his versions; an allegation that his „witnesses‟ talked about the matter before speaking to police internal investigators; and, the fact that he „accepted‟ that Mr Chapman had acted lawfully when he later pleaded guilty to a charge of obstructing police in Redcliffe Magistrates Court. [17] Each of these matters is addressed in the Reasons. The learned Members considered and weighed the evidence about them, but concluded that an assault of the kind alleged by the complainant was the „… only credible explanation for the undoubted infliction of a serious injury at a material time‟11. The critical finding about credit, in the face of the 5 At [92]. 6 E.g. Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 151-5. 7 At [14]. 8 (1938) 60 CLR 336, 361-363. 9 (1964-5) 112 CLR 517, 521. 10 (1992) 67 ALJR 170, 171. 11 At [88]. -- 4 of 10 -- 5 differing versions of the primary actors, was that, ‘[o]verall, we are satisfied to the required level that the complainant has been generally truthful‟12. [18] The fact that the alleged assault upon him by Mr Chapman was not raised on the occasion of the complainant‟s conviction is addressed, in detail, at [87]. The learned Members concluded that the failure of the lawyer who acted for him on the occasion of his appearance before a Magistrate to rely upon the injury or the circumstances in which it occurred, “… is readily explicable as a decision not to „rock the boat‟ and to avoid raising an issue likely to be strenuously contested by the police, and which could have resulted in a submission of lack of remorse and higher penalties. We do not see this occurrence as casting any real doubt upon the other evidence”.13 [19] As to the suggestion of collusion between the complaint‟s witnesses, the Reasons address the evidence of two of those witnesses and conclude that what one of them, O‟Connor, says should be regarded with caution14 and the other, Barker, was said to, ‘… not go very far in confirmation of the complainant’s account‟15. Later, the Reasons directly address the issue, stating, “irrespective of the likelihood or unlikelihood of such collusion there is, we think, a powerful circumstantial case that corroborates the most material particular of the complainant‟s evidence: namely the infliction of the injury at the time of his first contact on this occasion with Sergeant Chapman. It is the only credible explanation for the undoubted infliction of a serious injury at a material time”16. [20] That passage reflects, with respect, the Tribunal‟s proper focus upon the critical question, and the limited evidence of the two central witnesses touching it: was the injury to the youth caused by Mr Chapman; and in a way which involved the use of excessive force; and, therefore, misconduct? [21] The Reasons show that the learned Members were not convinced about the truthfulness of all of the evidence of the complainant (or other witnesses who were friends or acquaintances of his) about „subsequent events‟17; but, in their view, the evidence about that critical question was „overwhelming’18. The reasons for that conclusion are apparent, and explained. [22] Firstly, no other witness claimed to have actually observed the alleged incident which involved only Mr Chapman, and the complainant. [23] Secondly, the medical evidence was to the plain effect that the youth‟s injury was a significant one which was „highly likely‟ to have occurred during the two hours prior to hospitalisation. The time between the occurrence of the alleged incident, and admission to hospital, was only one hour 10 minutes. 12 At [93]. 13 At [87]. 14 At [76]. 15 At [78]. 16 At [88]. 17 At [94]. 18 Ibid. -- 5 of 10 -- 6 [24] Thirdly, whatever other inconsistencies there might have been in the complainant‟s evidence, he maintained from an early point that he suffered his injury when he was punched by Mr Chapman. That officer gave evidence that he believed the complainant was attempting to escape from him, and said he, ‘has taken him to the ground‟19. He described an incident of a kind which would not, ordinarily, be expected to cause a ruptured spleen. His version of the event did not, otherwise however, raise any issue or possibility of accidental mishap. [25] As the Reasons observe, this was a ‘simple initial event’ at which only two persons were present. Their versions were diametrically opposed. There was medical evidence consistent with the complainant‟s version. That a very serious injury occurred as a result of something that happened between the complainant and Mr Chapman was, it might be said, a compelling conclusion. [26] But, Mr Chapman contends, the complainant‟s accounts contained inconsistencies which were highly material, and should have told against accepting him as a truthful witness. He was, for example, uncertain whether he was punched by Mr Chapman when he was close to the ground under the house, or when he was coming out from underneath it.20 At para [75] there is a lengthy analysis of the reasons for the complainant going under the house with an additional, telling observation that Mr Chapman agreed he did so, and that physical contact between them occurred immediately thereafter. As the Reasons observe, ‘[s]uch an issue might be relevant to the question of credit if it were clear that the complainant lied about that detail, but it is by no means clear that he did‟21. [27] Then it is said that the Tribunal did not adequately address the issue of the improbability of the event occurring, if the complainant was indeed under the house. Again, that submission evaporates in the face of what is said at [75]. All the evidence was to the effect that he did go under the house, and that the confrontation between Mr Chapman and him occurred immediately after. [28] At para [42] the Tribunal referred to the complainant‟s first full interview with the police, about two hours after his admission to hospital, which records that he said he was „crawling back out’ from under the house. The Reasons conclude that22, whether or not the assault occurred when he was under the house or crawling out from under it, or after he crawled out, any uncertainty on his part about the matter is not of particular significance. [29] It is submitted that it would have been impossible for the event to occur if the complainant was actually underneath the house, and the Tribunal‟s apparent refusal to find that this was a serious inconsistency was an error. There is, with respect, an element of desperation in the submission. The point is hardly critical. As the Reasons observe at [69], the complainant 19 At [58]. 20 At [35]. 21 Supra, [75] and also see, in particular, [71]. 22 At [71]. -- 6 of 10 -- 7 himself seems to be uncertain about the precise location of the event, but consistently said that he was „crawling‟. [30] Reference is then made to the medical evidence and hospital admission notes, which are set out at [41]. It is said, as I understand the submission, that the Tribunal failed to mention a matter in the notes – an allegation, by the complainant, that he was „kneed’ in the ribs, and not that he was punched. In view of the seriousness of the injury and the complainant‟s condition at the time of admission, it is unsurprising that the learned Members would not have attached any great weight to what was said at that time. [31] There was, it is apparent, some inconsistency in the complainant‟s evidence about whether he was punched, or kicked, in the ribs by Mr Chapman (see [69] and [72]) but, as the Reasons also observe, the complainant was asked to describe the event on many occasions, and some degree of uncertainty is unsurprising.23 [32] Then it is submitted that the learned Members were in error when they said, at [48], that only the complainant and another police officer (Constable Jones) referred to an incident in which the complainant claimed that he was handcuffed and inadvertently placed on an ants‟ nest. The error, it is said, is that Mr Chapman‟s statement also referred to ants. [33] As the preceding para [47] makes clear, the point being made at [48] is that the incident itself is unlikely to have been concocted by the complainant – not whether it was corroborated, or by how many other witnesses. The same comment applies to a submission concerning para [49], in which the Reasons record that the incident with the ants might take, on the complainant‟s part, „… some wit and imagination to fabricate‟ but, the appellant‟s submissions say, there is not ‘… much wit at all in such a statement‟. The point being made in the Reasons is that some elements of the complainant‟s version are inherently plausible. [34] It is then asserted that, at [51], the Tribunal wrongly concluded that a subsequent interview of the complainant by a police investigator was, ‘… designed to open up any inconsistencies in (his) account‟. The passage is, however, preceded by the words „seemingly‟, followed by a recitation of part of the interview itself and then, at [53], the learned Members make what was, with respect, an important point about that interview, namely, that it had apparent value as a process which was ‘… likely to lead a facile fabricator into greater inconsistency than that which emerged during the interview‟. [35] The next assertion is that, at [72], the Reasons wrongly conclude that on a close examination of the evidence the complainant never suggested that he was kicked in the relevant rib area. It is true that, in the medical notes and the evidence of one other witness there is a record of an assertion of this kind by the complainant but, as observed at [42], he is also recorded as asserting that Mr Chapman ‘… kicked me in the head‟. 23 See, e.g. [53]. -- 7 of 10 -- 8 [36] In the face of the very large amount of evidence confronting the Tribunal the oversight is explicable. It is not, however, material. Rather, inconsistencies in the complainant‟s version are traversed in the Reasons at length – e.g. at [69], he is recorded as saying that Mr Chapman put his foot on the complainant‟s head and that he ‘… must have hit me on the side of the ribs‟. The learned Members did not find that the complainant had been entirely consistent, or always truthful. Rather, their conclusion was that he had been „generally truthful’24 about the occurrence of a „primary event’25, which resulted in a ruptured spleen. [37] The appellant says, however, that although the Reasons advert to the complainant‟s previous drug and property offences, the Members failed to properly direct themselves about the effect of such convictions. The assertion is wrong. Rather, the Reasons record at [22] that the youth was „adversely known to the police for drug and property offences‟ and, at [50], contain an observation that: ‘… young illiterate people like the complainant might be capable of great deception‟ – and, go on to consider whether those factors might affect both the clarity, and credibility, of the complainant‟s evidence. [38] It is apparent from this analysis that none of the alleged errors of fact are made out, or shown to warrant any interference with the decision. [39] The first question of law advanced on the appellant‟s behalf is that the Tribunal took irrelevant considerations into account – namely, alleged deficiencies in the disciplinary process in the Queensland Police Service. At [16] the learned Members described the proceedings before the Deputy Commissioner as a ‘... relic of earlier armed service orderly room procedure‟ and said it ‘… leaves much to be desired in more serious matters like the present‟. As they go on to say at [18] these concerns are raised because, in the present case, there were direct conflicts in witness statements and no conventional adversarial hearing which might have resolved them. Indeed, the proceedings before the Deputy Commissioner were ‘… tantamount to decisions on the papers‟26. [40] At [19], however, the learned Members go on to observe that questions of credibility can nevertheless be addressed through procedures of the kind adopted within the Service, and at [20] the Reasons observe that, ‘… it is our duty to do the best we can with the material that has been supplied, and we will now attempt to do this‟. These passages make it clear the learned Members were not diverted from their task by their concerns about the original process. Rather, they were addressing two of the objects of the QCAT Act which look, in ss 3(d) and (e), to enhance the quality and consistency of decisions made by decision makers and to enhance the openness and accountability of public administration. As the learned Members made clear at [19], the problems they raised, ‘… can only be addressed by the legislature‟. 24 At [93]. 25 Ibid. 26 At [18]. -- 8 of 10 -- 9 [41] The second allegation is that the Tribunal failed to apply, in a real way, the decision in Aldrich v Ross27. The appellant‟s submissions cite what the presiding QCAT Member had himself said in that case, sitting as a Judge in the Queensland Court of Appeal: that, in police disciplinary proceedings, considerable respect should be paid, ‘… to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline‟; and, that in any review of a decision of an internal Police Misconduct Tribunal the reviewing authority ought to, ‘… give considerable weight to the view of the original decision maker who might be thought to have particular expertise in the management requirements of the police force‟28. [42] At para [12] of their Reasons, the learned Members specifically referred to the decision. While the relevance of the principles to be extracted from it to the question whether misconduct has actually been proved might be queried, there is in any event nothing in the Reasons to suggest the learned Members did not give the original decision of the Deputy Commissioner the weight it deserved. Section 20 of the QCAT Act specifically required, in any event, that the learned Members hear and decide the matter by way of a fresh hearing on the merits. Undertaking that process in a way which involved anything greater than due acknowledgement of the original decision might be thought to be inimical to that process. Paragraph [20] of the Reasons, mentioned above, makes it clear the learned Members approached their task in a way which properly observed the requirements of the statute. [43] Finally, the appellant‟s submissions raised an additional ground: that the Tribunal failed to have regard to the question whether the arrest of the complainant youth, during which the injury was suffered, was a lawful one. Reference is made to the decision in Whitemore v O’Sullivan29 in which it was held that a District Court Judge acted in error in failing to consider the provisions of s 651 of the Police Powers and Responsibilities Act 2000. It is said the same error occurred here and the Tribunal was obliged to determine whether of not there had been a lawful arrest, as a matter relevant to the question of guilt or innocence of the charge of improper conduct. [44] The question for the Tribunal was whether or not Mr Chapman had engaged in improper conduct, in that he used excessive force against the complainant. That finding was open whether or not the arrest was lawful, or unlawful. At [95] (c), the Tribunal made a specific finding that the application of force – by striking a complainant in his lower left back area in the vicinity of his ribs – was not authorised, justified or excused by law. That, it seems to me, disposes of the matter. [45] None of the grounds of appeal are made out. In particular, the appellant has not been able to show that the decision of the Tribunal was against the evidence, and the weight of evidence; or, that the Tribunal made errors of fact vitiating its conclusions. The learned Members undertook, with 27 [2001] Qd R 235. 28 Aldrich v Ross [2001] Qd R 235 at 257. 29 [2010] QCA 366. -- 9 of 10 -- 10 respect, an exhaustive analysis of the large body of evidence presented to them and were entitled to find as they did. [46] The appeal must be dismissed. -- 10 of 10 --