Chapman v Wilson & Anor [2011] QCAT 400

CITATION: Chapman v Wilson and Anor [2011] QCAT 400 PARTIES: Stephen Wayne Chapman (Applicant) v Assistant Commissioner Paul Wilson Crime and Misconduct Commission (Respondents) APPLICATION NUMBER: OCR029-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon James Thomas AM QC, Member DELIVERED ON: 24 August 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. It is ordered that the Crime and Misconduct Commission be joined as a respondent to the present application. CATCHWORDS: Police Discipline – Police Officer seeking review of finding of misconduct – Whether CMC may be added as a party Crime and Misconduct Act 2001, s 35, 219A Queensland Civil and Administrative Tribunal Act 2009, s 42 APPEARANCES and REPRESENTATION (if any): APPLICANT: Stephen Wayne Chapman was represented by Mr Gnech RESPONDENTS: Assistant Commissioner Paul Wilson was represented by Ms C Heffner & CMC was represented by Mr T Gardiner REASONS FOR DECISION -- 1 of 4 -- 2 [1] There are five interconnected disciplinary reviews pending, arising out of an incident in the Nerang district on 16 June 2006 which involved a police pursuit of a motorcycle and which ended in a death. [2] The matters are: CMC v Buckley and Wilson OCR025-11 Chapman v Wilson OCR029-11 CMC v Chapman and Wilson OCR030-11 CMC v Webley and Wilson OCR032-11 CMC v McLoughlin and Wilson OCR033-11 [3] Following investigation of the incident, proceedings were brought against Constable Buckley, Constable Chapman, Constable Webley and Sergeant McLoughlin. Various charges were brought, including failure to observe police policy concerning pursuits, and the giving of untruthful statements to investigators. [4] In the result, the decision maker (Assistant Commissioner Wilson): a) Found that misconduct was not established against Sergeant McLoughlin; b) Found that misconduct was not substantiated against Constable Webley; c) Found that misconduct was not substantiated against Senior Constable Buckley; d) Found that two particulars of misconduct were substantiated against Constable Chapman, and imposed a sanction of two penalty units for each matter. [5] The CMC, upon examining the cases, decided to seek a review of all matters. In the matters concerning Buckley, Webster and McLoughlin it sought review of the decision maker’s failure to find that the charges were substantiated. It could not to do so in Chapman's matter (OCR029-11) because there was already a finding of substantiation. Accordingly the proceedings it has brought in Chapman's case are confined to the inadequacy of the sanction. However Chapman has brought an application to review that finding of substantiation, and if that finding were set aside upon review, the CMC would not be able to challenge the result because it was not a party to those proceedings. [6] This is a procedural application by the CMC, seeking to be joined as a respondent in Chapman’s application for review OCR029-11, and alternatively that it be permitted to appear as an intervener. The application is opposed both by Constable Chapman and by the decision maker. [7] This Tribunal has power to add a party under section 42 of the Queensland Civil and Administrative Tribunal Act (“the QCAT Act”). The questions here are whether the CMC’s interests may be affected by the proceeding; and whether for any other reason it is desirable that it be joined as a party to the proceeding (see QCAT Act s 42(1)(b) and 42(1)(c)). [8] The Crime and Misconduct Commission has the important function of independent monitoring and review in relation to police misconduct. This is -- 2 of 4 -- 3 made clear by the Crime and Misconduct Act 2001 (“the CMC Act”) sections 35(1)(c), 35(1)(g), 35(1)(h) and section 219A, subparagraphs (a), (b) and (c). [9] The police disciplinary system is largely administered within the police force itself, and the CMC is the independent watchdog to prevent any perception of favouritism or laxness within the police department in the prosecution of errant police. Its functions and purpose are described in Kitching v Queensland Commissioner of Police [2010] QSC 303, paras 40-47, and Crime and Misconduct Commission v Eaton [2011] QCAT 161. [10] The present matter involves conduct by four police officers said to have been in breach of police pursuit policy, and to have covered up by making untruthful statements. It is common ground that there was a pursuit that ended in a death. The end result of the investigation at this stage is a complete acquittal of responsibility on the part of three of the officers charged, and a relatively low level penalty imposed on the only officer against whom any finding of misconduct was made. [11] Without entering in any way upon the merits of the matter, it is clear that the CMC is concerned about the outcome, and that it wants the whole incident reviewed in respect of all four police officers. [12] It cannot bring any proceedings to put Constable Chapman’s misconduct in issue, because at present there is a finding that it has been substantiated. It is however possible that upon the review sought by Constable Chapman, to which the CMC is not a party, this finding could be set aside. In that event it is quite possible that the Police Commissioner might decide that no appeal should be brought. [13] In that event, the CMC would wish to have the right to appeal against the decision if it thought it appropriate to do so. But it would have no right of appeal unless it was an actual party to the review. [14] In my view the CMC may properly seek to be joined as a party if its perception of a particular matter is that the internal system has been too soft, or too favourable to the police officer, either through acquittal or imposition of too light a sanction, or, if it perceived that the internal police process may have miscarried. This would be an appropriate exercise of its functions described in paragraphs [8] and [9] above. [15] The adversarial conduct of Chapman’s review currently rests with the police department which represents the decision maker. [16] Just as the CMC may have a legitimate concern about the original decision, it may also have a legitimate concern about a Tribunal decision following a review in which the adversarial party was the police department. The police department might decide against appealing from such a decision, but the CMC might take a different view and wish it to be further tested. [17] The CMC therefore wishes to protect its position to enable it to proceed further in the event that an appeal is arguable. It has expressly indicated that it does not wish to act as a second or duplicate contradictor to the applicant’s -- 3 of 4 -- 4 review. It has not been suggested that the representatives of the decision maker have not conducted or will not conduct these proceedings with due vigour. I understand the CMC’s concern is to maintain its interest in seeing that a satisfactory outcome is eventually reached. [18] That I think is an appropriate concern. [19] Convenience also favours the presence of all parties in all matters arising out of this single incident. Plainly OCR029-11 and OCR030-11 should proceed together. Indeed I am of the view that not only the two proceedings involving Chapman but all of the current reviews should be heard together. The current matters are already set down for hearing on 5 and 6 September 2011. [20] I acknowledge the submissions on behalf of Constable Chapman and on behalf of the decision maker, both of which oppose the joinder. The point is made that the purpose of “securing their position as a party to protect their right in the event of an arguable appeal” is insufficient to constitute an interest under section 42(1)(d) of the QCAT Act. However, having regard to the statutory role and purpose of the CMC I think it has a sufficient interest, and I therefore reject the submission. [21] It was also submitted that QCAT has no jurisdiction to order such a joinder because s 219G of the CMC Act deals with the parties to misconduct reviews. This submission is that this excludes the operation of s 42 of the QCAT Act. However I do not think that section 219G is exclusive or that it negates the possibility of joinder of other parties to the framework described in that section. [22] In my view it is desirable that the CMC be joined as a party to the proceeding, and unless the Tribunal directs otherwise, that the CMC should remain a passive party during the review. [23] This ruling should not be taken as justifying joinder of the CMC whenever it seeks such an order. It is granted in the present matter because it is one of public interest, and, having regard to the present situation in the litigation, it is important that the CMC as the public’s monitor should exercise close surveillance and protect its capacity to see the matter through. Order [24] It is ordered that the Crime and Misconduct Commission be joined as a respondent to the present application. -- 4 of 4 --