Disley v Assistant Commissioner Wilson Queensland Police Service [2011] QCAT 426

CITATION: Disley v Assistant Commissioner Wilson Queensland Police Service [2011] QCAT 426 PARTIES: Stephen Disley (Applicant) V Assistant Commissioner Paul Wilson Queensland Police Service (Respondent) APPLICATION NUMBER: OCR179-10 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr J Allen, Member DELIVERED ON: 12 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Respondent in relation to the finding that the charge of misconduct was substantiated be set aside. 2. The charge of misconduct is dismissed. 3. The Respondent is to pay the Applicant’s costs of filing fees in the amount of $255.00 within 14 days. CATCHWORDS: Police officers – Discipline – retaining and sale of seller’s chattels following purchase of dwelling – acting on legal advice that goods abandoned Police Service Administration Act 1990, ss 1.4, 7.4 Police Service (Discipline) Regulation 1990 Aldrich v Ross (2000) QCA 501 Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 O’Keefe v Richards and Anor (2010) QSC 386 -- 1 of 7 -- 2 APPEARANCES and REPRESENTATION (if any): The application was determined on the papers in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] This is an application by Senior Constable Stephen Disley to review a decision by an Assistant Commissioner of Police, Assistant Commissioner Paul Wilson made on 13 July 2010 that a disciplinary charge of misconduct was substantiated against Disley and ordered he be fined an amount equivalent to two (2) penalty units. [2] The charge of misconduct was as follows: That between the 21st day of August 2006 and the 1st day of December 2006 at Kingston your conduct was improper in that you: (a) failed to meet the standard of conduct the community reasonably expects of a police officer. (section 1.4 of the Police Service Administration Act 1990 and s.9(1)(f) of the Police Service (Discipline) Regulations 1990.) Further and better particulars: Investigation of this incident identified that on or about the 21st August 2006 you purchased a residential property from Antionetta Holcroft and: . following settlement for the property you entered into an agreement to allow Holcroft at a later date to retrieve some of her property, including a spa bath; . After this arranged date you improperly retained the spa bath and refused to return it to her stating you had obtained legal advice it was considered ‘abandoned’; . on the 12th November 2006 you sold the spa bath to an associate, Damon Winter for $3,500; and . on the 1st December 2006 Antoinetta Holcroft made a complaint of stealing to the police which remained outstanding during this investigation. [3] The proceeding is heard in the review jurisdiction of the Tribunal under sections 17-24 of the Queensland Civil and Administrative Tribunal Act 2009. Jurisdiction for the review proceeding is conferred under section 219G of the Crime and Misconduct Act 2001. The Tribunal, when exercising its review jurisdiction in misconduct matters does so in accordance with the principles set by Thomas JA, as he then was, in the decision of Aldrich v Ross1 at para 45: The first duty of a Misconduct Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the 1 (2000) QCA 501. -- 2 of 7 -- 3 opinion of the original decision-maker. .. if there is no serious contest as to the primary facts (as was essentially the position here), it is still necessary for the Misconduct Tribunal to make up its own mind on the facts and on the inferences to be drawn from them, though it might well see them the same way as the original decision maker if that person’s view of the facts is ascertainable. The exercise is quite different from that which takes place in this court in sentence appeals against the exercise of a judicial discretion, where the principles of House and Cranseen apply, and where the essential issue is often compendiously reduced to whether the sentence is manifestly excessive. If the Misconduct Tribunal has the same view of the facts and inferences as the original tribunal, it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the misconduct tribunal. [4] The applicability of those principles to this Tribunal has been confirmed in the decision of Mr Thomas AM QC in Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman2 at para 12: We understand all counsel to accept that Aldrich v Ross states the principles and approach to be taken by this Tribunal notwithstanding the statutory changes that have occurred since the former misconduct Tribunal exercised jurisdiction in such matters. There is no relevant inconsistency between the present empowering Act (the Crime and Misconduct Act 2001, sections 219G and 219H) and sections 17-20 of the Queensland Civil and Administrative Tribunal Act, and we do not think the statutory changes since Aldrich have the effect of requiring a different approach to be taken. Accordingly, under section 20 of the later Act it is our duty to hear and decide the matter by way of a fresh hearings on the merits. [5] The standard of proof applicable in this case was also considered in that case. Mr Thomas AM QC stated at para 13: Counsel are also agreed on the relevant principles concerning the standard of proof and level of satisfaction necessary in reaching a determination on such a review. Shortly stated the principles referred to in Briginshaw v Briginshaw and subsequent clarifications such as those in Refjek and Neat Holdings v Karojan are to be applied. Plainly this is civil litigation and the standard of proof is on the balance of probabilities. It is however a disciplinary proceeding capable of producing serious consequences for Sergeant Chapman, and accordingly the necessary “reasonable satisfaction” is not to be reached lightly or on flimsy evidence. [6] In an application such as this due weight must also be put on any agreement reached between the parties as to any agreed facts. This is clear from the decision of McMurdo J in O’Keefe v Richards and Anor3. In that case the parties had prepared a statement of agreed facts, McMurdo J 2 [2010] QCAT 564. 3 [2010] QSC 386. -- 3 of 7 -- 4 held that the first respondent was required to treat the agreed facts as proved and to reason upon those premises. [7] The parties in this proceeding prepared a joint submission to the Tribunal which set out a summary of the circumstances surrounding the transaction taken from Disley’s counsels oral and written submissions for the disciplinary hearing as follows: a. Disley purchased a property at Kingston on 21 August 2006; b. The purchase was made for investment purposes; c. The seller and Disley entered into a standard REIQ contract for the sale and purchase of a dwelling; d. The contract contains a clause which expressly states it is a whole of contract; this means any other agreements or arrangements made prior to executing the REIQ contract are null and void and can not be relied upon or enforced as a matter of law; e. The contract also contained a clause which required any amendment of the contract to be in writing; this is constant (sic) with the property law Act 1974 which requires contracts relating to the sale of land to be written; f. On 21 August 2006, the property settled and ownership was passed to Disley; g. An additional clause of the contract provided that any chattels left on the property after settlement was deemed to be abandoned by the seller and in effect became the property for a period of four days; this occurred due to problems with the seller’s removalist company; h. Disley agreed to this request, requiring the remaining property to be removed by 25 August 2006; i. On 31 August 2006, Disley’s real estate agent visited the property with a view to appraising the property for leasing purposes. She advised Disley the spa bath was still present and that she could not lease the property with the spa bath being there; j. On 31 August 2006, Disley contacted his solicitor about the property and his legal rights. He was advised by his solicitor that the spa bath was abandoned property pursuant to the REIQ contract and that it could be disposed of by Disley; k. On 31 August 2006, Disley attempted to contact the seller and left a message for her with a female person who answered the seller’s telephone number and who Disley believed to be the seller’s daughter; l. Disley subsequently moved the spa bath and transported it to his residence for storage; m. On 3 October 2006, the seller contacted Disley about the spa bath, who in turn advised her he had removed the property as they were abandoned and referred her to his solicitor; n. The seller contacted Disley on two more occasions about the spa bath and was referred to this solicitor on each occasion; -- 4 of 7 -- 5 o. On 12 November 2006, Disley sold the spa bath to a third party. the actions of Mr Disley would not affect his fitness to discharge his duties as a police officer. Mr Disley’s conduct was based on legal advice he sought and relied upon. Mr Disley’s conduct does not warrant a finding of misconduct. [8] There is some inadequacy in this summary in relation to events in regard to the spa bath which are set out in items g and h. When regard is had to the original written submissions of Disley’s counsel for the disciplinary hearing they are better set out as follows: An additional clause of the contract provided that any chattels left on the property after settlement was deemed to be abandoned to be abandoned by the seller and in effect became the property of the buyer; On 21 August 2006, the seller contacted Disley and sought his approval to leave some property, including the spa bath subject to the charge at the property for a period of four days; this occurred due to problems with the seller’s removalist company; Disley agreed to this request, requiring the remaining property to be removed by 25 August 20064. [9] The conduct of Disley which is in question has occurred while he was been off duty and is in relation to a contractual arrangement between him and Mrs Holcroft. [10] The fact that the conduct occurred while Disley was off-duty does not mean that it cannot be considered under the disciplinary provisions. This is clear from the definition of conduct in section 7.2 of the Police Service Administration Act 1990, which is as follows: Conduct means any conduct of an officer, wherever and whenever it occurring, whether the officer whose conduct is in question is on or off duty at the time the conduct occurs. [11] Disciplinary action may be taken against an officer such as Disley where the prescribed officer, in this case Assistant Commissioner Paul Wilson, considers the officer’s conduct to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations5. Misconduct is defined as follows: Misconduct means conduct that- (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expect of a police officer6. [12] The regulations provide the following relevant grounds for disciplinary action: 4 SOR page 22. 5 Section 7.4(2) of Police Service Administration Act 1990. 6 Section 1.4 Police Service Administration Act 1990. -- 5 of 7 -- 6 a contravention of, or failure to comply with a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner; misconduct7 [13] Assistant Commissioner Wilson in his reasons for decision noted section 10.8 of the Code of Conduct (Personal Conduct ) as being relevant in this case8. That section is as follows: At all times, members are to act and to be seen to act properly and in accordance with both the letter and the spirit of the law and in the terms of this code of conduct. Members are not to act in a manner which will adversely reflect on the Service generally or on themselves as members of the service. [14] The joint submission acknowledges that conduct of a police officer in a private capacity may warrant the bringing of disciplinary proceedings for misconduct citing relevant cases and in particular Burbury CJ in Henry v Ryan9 where he stated: Discipline in this sense involves more than mere obedience to lawful order. It is a wide concept and I have no doubt extends to conduct of a police officer when off duty so far as that conduct may affect his fitness to discharge his duties as a police officer.. Discreditable conduct in his private life may .. clearly affect his status and authority as a police officer in the discharge of his duty and in his relations with the public. Misconduct in his private life by a person discharging public or professional duties may be destructive of his authority and influence and thus unfit him to continue his office or profession. [15] It is clear from the agreed statement of facts that Disley at all times acted in accordance with legal advice and waited a considerable time before dealing with the spa bath. While he may have been in a position to enable Mrs Holcroft to regain possession of the spa bath he was not under any legal obligation to do so based on the legal advice he had obtained. He choose to exercise his legal rights. There is no indication that he has acted dishonestly and it is clear that he was put to some trouble by having to remove the spa bath from the house. It was not for a considerable period of time after settlement of the sale that he was contacted by Mrs Holcroft. [16] Were the actions of Disley misconduct in the terms mentioned above? The joint submissions of the parties was that Disley’s actions would not affect his fitness to discharge his duties as a police officer. That his conduct was based on legal advice he sought and relied upon and does not warrant a finding of misconduct. In accordance with the Aldrich v Ross principles due weight should be given to the view of the Department. 7 Regulation 9(1) of the Police Service (Discipline) Regulations 1990. 8 SOR page 10. 9 [1963] Tas SR 90. -- 6 of 7 -- 7 [17] The agreed facts establish that Disley acted in accordance with legal advice that following the 25 August 2006 the spa bath was abandoned goods in accordance with the REIQ contract and he could deal with as he wished. The Tribunal accepts that Disley acted in accordance with his honestly held belief in regard to his contractual rights at all times and cannot be blameworthy in that regard. While he may have chosen to act otherwise there was nothing which required him to do so in law or in the spirit of the law. [18] There are no grounds to substantiate a finding of misconduct. The decision of Assistant Commissioner Wilson is set aside. [19] The Tribunal in accordance with the joint submissions of the parties makes the following orders: a) The decision of the respondent in relation to the finding that the charge of misconduct be set aside. b) The charge of misconduct is dismissed. c) The respondent is to pay the Applicant’s cost of filing fees in the amount of $255.00. -- 7 of 7 --