Crime and Misconduct Commission v Assistant Commissioner Barnett & Anor [2011] QCAT 161

CITATION: Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161 PARTIES: Crime and Misconduct Commission v Assistant Commissioner Ross Barnett Bryan Alan Eaton APPLICATION NUMBER: OCR079-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 20 April 2011 HEARD AT: Brisbane DECISION OF: Hon James Thomas AM QC, Member DELIVERED ON: 3 May 2011 DELIVERED AT: Brisbane ORDERS MADE: The decision of the first respondent dated 23 March 2010 imposing a sanction of reduction of one pay point for a period of twelve (12) months is set aside, and in its place it is determined that the second respondent’s level of salary be reduced by two pay points (Senior Sergeant 4.4 to 4.2) for a period of nine (9) months from 23 March 2010. CATCHWORDS: Police Disciplinary proceedings – Review – Whether formal application for review needed before a finding or a failure to find misconduct can be set aside Whether formal application for review needed before sanction may be increased or decreased Duty of Tribunal to conduct “fresh hearing” and to produce “the correct and preferable decision” – Suggested practice when police officer at risk of having a more severe sanction imposed in his or her own application – Hannigan v Richards and Ragh [2010] QSC 242 discussed – desirability of -- 1 of 12 -- 2 parties making formal applications for the relief they seek Paypoint reduction appropriate sanction for misconduct in risky police pursuit carried out by a senior sergeant contrary to Commissioner’s Direction APPEARANCES and REPRESENTATION (if any): APPLICANT: Crime and Misconduct Commission Represented by Mr J J Allen (Counsel) RESPONDENT: First Respondent: Acting Commissioner Ross Barnett Represented by Mr M D Nicholson (Counsel) Second Respondent: Bryan Alan Eaton Represented by Mr P E Smith (Counsel) REASONS FOR DECISION Jurisdiction and main issue [1] In March 2010 disciplinary proceedings under section 7.4 of the Police Service Administration Act 1990 were brought against Senior Sergeant Eaton which resulted in Assistant Commissioner Barnett finding him guilty of police misconduct. A sanction was imposed of reduction of his level of salary from pay point 4.4 to 4.3 for a period of twelve (12) months. [2] Effectively Assistant Commissioner Barnett found that Sergeant Eaton at specified places on 22 August 2009: a) Drove a police vehicle at excessive speeds (approximating 225 kilometres per hour in a 100 kilometre per hour speed zone, in 150 to 160 kilometres an hour in a 60 kilometre per hour speed zone); b) Contravened a direction of the Commissioner of the Queensland Police Service by commencing an unauthorised pursuit and failing to activate the emergency lights and sirens of the police vehicle; and c) In so doing, drove the police vehicle without care and attention.1 [3] The CMC took the view that the sanction was inadequate and that additional evidence ought in any event to have been placed before Assistant Commissioner Barnett showing that the misconduct was more serious than the limited evidence before him had suggested. It accordingly brought the present application for review under section 219G of the Crime 1 Statement of agreed facts, para 18. -- 2 of 12 -- 3 and Misconduct Act 2001 (“the C&M Act”) accompanied by an application to call fresh evidence. [4] The CMC’s preliminary application was for leave to adduce new evidence under section 219H of the C&M Act, including the findings of the State Coroner dated 14 October 2004 in an inquest into two deaths which occurred in the course of a police chase in North Queensland in which Sergeant Eaton had been involved. That application came on before me, and I ruled on 9 September 2010 that the evidence was receivable though on a restricted basis. [5] Assistant Commissioner Barnett’s finding and sanction were reviewable decisions under section 219BA(1)(a) of the C&M Act. QCAT’s jurisdiction to conduct such a review exists under section 219G of that Act. [6] The parties are the CMC (applicant), Assistant Commissioner Barnett (first Respondent) and Sergeant Eaton (second Respondent), who is the true adversarial respondent. The Acting Commissioner, in accordance with the Hardiman principle,2 has not played an active part in the proceedings. [7] No appeal or review was sought by Sergeant Eaton of either the finding of misconduct or the sanction. The only formal application before the Tribunal is the CMC’s application for a review of the sanction. [8] Notwithstanding this, counsel for Senior Sergeant Eaton submitted that the decision-maker’s finding of misconduct should be set aside, and that no separate application for review needed to be brought on his behalf. He further submitted that it was open upon the present review to impose a lesser sanction than that imposed by Assistant Commissioner Barnett. [9] These submissions raise the nature of the review that is to be conducted, and the extent to which it may be limited by the “pleadings” or terms of the application for review. Issues for Review and QCAT’s Power to “substitute its own decision” [10] QCAT’s powers on a review of this kind are set out in section 24 of the QCAT Act. 24 Functions for review jurisdiction (1) In a proceeding for a review of a reviewable decision, the Tribunal may— (a) Confirm or amend the decision; or (b) Set aside the decision and substitute its own decision; or (c) Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. 2 R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13, 35 and 36. -- 3 of 12 -- 4 [11] Obviously every original decision remains in force unless and until it is set aside, amended or replaced by a substituted decision. [12] In the context of police discipline there are two separate decisions involved in every case in which a sanction is imposed. Firstly there is the finding that the charge is substantiated, and secondly (if the charge is established) a sanction. Each of these decisions is subject to a right on the part of both the serving officer and the CMC to seek a review. But neither right is activated unless a party brings it to QCAT by means of an appropriate application. [13] Under the system in force until 2009, the Misconduct Tribunal was the vehicle for a similar review, but the Misconduct Tribunals Act 1997 referred to it as an “appeal”, the character of which was considered in Aldrich v Ross [2001] 2 Qd R 235. Its replacement under the C&M Act and the QCAT Act was simply described as “a review”.3 [14] The parties who may seek such a review are the CMC and the officer against whom a reviewable decision has been made.4 [15] Such a right must be exercised within fourteen (14) days5 but QCAT may extend the time in certain circumstances.6 [16] On ordinary principles of adversarial procedure, one might expect that a review brought by a police officer to reduce a sanction could not result in an order increasing it, and conversely, that on a review brought by the CMC to increase a sanction an order could not be made reducing it. The first of these propositions was affirmed by Mullins J in Hannigan v Richards and Ragh [2010] QSC 242, which was a decision under the Misconduct Tribunals Act 1997. Her Honour’s reasoning (especially paragraphs 29–39) suggests that the appellate jurisdiction of the Misconduct Tribunal would only be engaged by the filing of notice of appeal by the relevant aggrieved party.7 It was submitted by counsel for the CMC that the same principle would apply to QCAT, and that it should apply irrespective of whether the appellant's objective is to raise or lower a sanction. If that is so, on a review brought by the CMC challenging the inadequacy of a sanction (as in the present case) there would be no jurisdiction in QCAT either to interfere with the finding of misconduct or to impose a lower sanction than that originally imposed. [17] There is however some tension between this and the requirements of the QCAT Act which were not in force when Hannigan's case was decided, and accordingly were not considered. In particular, upon a review, QCAT has all the rights and functions of the decision-maker for the reviewable 3 C&M Act, s 219G; QCAT Act ss 17-20, 24. 4 C&M Act, s 219G(1). 5 C&M Act, s 219G(2). 6 QCAT Act, s 61. 7 Hannigan’s Case (above) para 34. -- 4 of 12 -- 5 decision being reviewed,8 and the purpose of the review is expressly stated as “to produce the correct and preferable decision”.9 Furthermore “the tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits”.10 The Misconduct Tribunals Act 1997, reviewed in Aldrich v Ross (above), contains only some of these features. The provisions of the QCAT Act explicitly emphasise the fresh and independent nature of the review that is to be conducted. [18] The present proceeding before me is a fresh hearing on the merits, and is to be decided on both the original material and fresh evidence that was not before the original decision-maker. This seems to underline the fact that this is a fresh proceeding in which an entirely different factual perspective may be opened up which may call for an order more or less severe than the original one. [19] In the ordinary course it is unlikely that a Tribunal member would come to a conclusion on a CMC appeal that the sanction already imposed was too high, but it is by no means impossible that after a complete fresh review the case might wear a different aspect, and that such a conclusion could be reached. Moreover, 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. In many cases, having regard to the variety of orders that may be made in combination, there will be no clear line between what amounts to a less severe or a more severe sanction. [20] What then should the Tribunal do if it comes to the view that an entirely different remedy or sanction is the appropriate one? [21] Under section 24 of the QCAT Act the tribunal has power “to set aside the decision and substitute its own decision”. In my view if the Tribunal upon a review reaches a conclusion that a different sanction is the appropriate one, or in the terms of section 20(1), is “the correct and preferable decision”, it would be failing in its duty if it reinstated the original decision with which it disagreed or which was no longer appropriate. A reinstatement of the original decision in such circumstances would be a failure to substitute its own decision under section 24(1)(b), or indeed to act pursuant to any other part of section 24(1) of the QCAT Act. [22] Having regard to the above statutory provisions, to the objective of disciplinary proceedings, and their overriding aim of protecting the public, it is strongly arguable that upon a review of this kind the Tribunal’s duty is to impose the sanction that best fits the case, whether it be lighter or heavier than that originally imposed. I acknowledge that the notion involved in exposing an appellant police officer to a more serious sanction is problematical, but think that this possibility is opened up whenever a party requests a review by way of fresh hearing. If this is so I would expect a 8 QCAT Act, s 19(c). 9 QCAT Act, s 20(1). 10 QCAT Act, s 20(2). -- 5 of 12 -- 6 Tribunal member who was disposed to increase a sanction to so inform the appellant police officer and give him or her the opportunity of withdrawing the application. This would accord with a now well established practice in the superior courts. However, unless and until a more authoritative and direct ruling is obtained from a court, Hannigan's case will make it prudent for any party that wishes to challenge a finding of misconduct or a failure to find misconduct, or to increase or reduce a sanction, to bring a specific application to do so. It is generally desirable that parties make formal application for the relief they seek. Rulings [23] a) The finding of misconduct has not been challenged by application and has not been placed in issue here. However the true effect of the evidence of misconduct is in issue on the question of sanction. b) The CMC application in this particular matter simply asks QCAT “to conduct a review of the sanction imposed...”. It does not confine the review to any ground such as inadequacy. Accordingly the question of increase or decrease of the sanction is at large, and I should impose whatever sanction I consider to be appropriate on the evidence. The Facts [24] At the relevant time Senior Sergeant Eaton was stationed at the Pine Rivers District Traffic Branch and was the officer in charge of that operational unit. [25] On the afternoon of 21 August 2009 he undertook traffic enforcement duty in the district. Prior to 1 am on 22 August 2009, while performing stationary radar duty on the Bruce Highway at Narangba (near the Boundary Road entry to the highway) he detected a motorcycle travelling north along the Bruce Highway at 208 kilometres per hour. The speed limit along that highway was 100 kilometres per hour. [26] He chose to follow the motorcycle in his police car north along the highway. [27] A few minutes later a fixed speed camera (located about five (5) kilometres north of where Sergeant Eaton had observed the motorcycle) recorded the motorcycle travelling north at a speed of 222 kilometres per hour. [28] Eighteen seconds later the same camera recorded the police vehicle travelling in the same direction at a speed of 225 kilometres per hour. At this point the motorcyclist must have been more than a kilometre ahead of the police vehicle. [29] Unobserved by Senior Sergeant Eaton, the motorcycle left the Bruce Highway at the Morayfield exit. The police vehicle continued north along the highway and exited at a point further north at the Buchanan Road exit. -- 6 of 12 -- 7 [30] About three minutes later Sergeant Eaton radioed the Police Service Communication Centre at Redcliffe to advise that he had detected a motorcycle travelling at a high speed north bound on the Bruce Highway, and advised that he had lost it, that he believed it had gone down Morayfield Road, and that the attempted interception had been discontinued. [31] Buchanan Road leads to the settled suburban area of Morayfield. [32] While approaching the intersection of Graham Street and Buchanan Road at Morayfield, Senior Sergeant Eaton saw the motorcycle turn from Graham Road into Buchanan Road some distance in front of him. He then activated the police vehicle’s emergency lights and siren and pursued the motorcycle west along Buchanan Road. [33] In doing so he later admitted that his police vehicle had reached speeds “in the high 150 kilometres per hour” in a sixty kilometres per hour speed zone. [34] During the pursuit along Buchanan Road at Morayfield, the motorcycle slowed to turn left into Visentin Road. At that point Senior Sergeant Eaton noted the motorcycle’s registration number and then abandoned the pursuit. Soon after this he radioed the Communication Centre and reported the registration number. His stated reason for the attempted interception that it was a “dangerous op” and “category three pursuit”. He stated he was discontinuing the pursuit as the motorcycle speed was too high and he was not stopping. [35] The “new evidence” which has been received on the present review shows that this was not the first occasion in which Senior Sergeant Eaton has been involved in a dangerous pursuit. [36] The written findings of the State Coroner on 14 October 2004 into the deaths of Alan Toohey and Andrew Hill were received into evidence here, but pursuant to a ruling made on 9 September 2010 it was decided that they should be received on a strictly limited basis. [37] Various findings were made by the Coroner concerning the speed and nature of the chase, and adverse comments were made concerning Senior Sergeant Eaton’s driving. However the Coroner's report was not received here as evidence of the facts stated, or of the Coroner's opinions as such. The limited basis on which it was received was that it demonstrates that on the evening of 24 April 2003 Senior Sergeant Eaton was involved in a pursuit of a vehicle containing three persons, two of whom were killed in the course of the chase. Senior Sergeant Eaton was represented at the inquest, and it may be inferred that he was aware of the serious view that the Coroner took of his conduct. [38] The relevance of this evidence is that it shows that in 2003 there was a Coronial Inquiry into the death of two persons in the course of a police chase in which Senior Sergeant Eaton was involved. He was represented -- 7 of 12 -- 8 at that inquiry and I am prepared to infer that he knew that his conduct was the subject of adverse comment by the Coroner in his public findings. The evidence shows that Senior Sergeant Eaton had had a serious warning of which he might have been expected to have taken heed. The evidence is relevant to demonstrate the background knowledge and state of mind of Sergeant Eaton when he chose to drive in the manner he did in 2009. The Charge [39] The Charge brought against him was: That on 22 August 2009 at Burpengary and elsewhere your conduct did not meet the standards of conduct the community reasonably expects of a police officer in that you drove a police vehicle in such a manner that failed to demonstrate that care and attention was being exercised at all times as required by Queensland Police Service Policy and Procedure. [40] Further particulars were supplied including that: Whilst attempting to intercept the motorcycle at night time he: Drove the police vehicle at excessive speeds namely: approximately 225 km/h in a 100 km/h area; and at approximately 150km/h to 160 km/h in a 60 km/h area. [41] It was also particularised that he had commenced an unauthorised pursuit and failed to activate the lights and sirens of the police vehicle. Submissions on behalf of Senior Sergeant Eaton [42] It was submitted, and I accept, that Senior Sergeant Eaton at all times acted in a forthright manner during the investigation, and at no stage tried to conceal or obfuscate what had happened. Further he has an excellent service record. [43] Counsel drew attention to the terms of the relevant “Safe Driving Policy”11 which is a Commissioner’s Direction by which all serving police officers are bound. [44] In particular he drew attention to the definition of “pursuit” in that policy. Pursuit means continued attempts to intercept a vehicle that has failed to comply with a direction to stop and where it is believed on reasonable grounds the driver of the vehicle is attempting to evade police. [45] Senior Sergeant Eaton’s conduct falls into two distinct episodes. The first episode was on the Bruce Highway, and the second along Buchanan Road. Counsel submits that the first episode did not constitute a “pursuit” as defined. It certainly meets the ordinary meaning of the word “pursuit”, but counsel’s submission is correct, as Senior Sergeant Eaton was initially unable to give any signal to the driver to stop, and his driving along the Bruce Highway was obviously a rash attempt to catch up with the other 11 Exhibit 1 in these proceedings. -- 8 of 12 -- 9 driver. His conduct however meets the definition of “intercept” within the policy namely- Intercept means the period when deciding to direct the driver of a vehicle to stop until either the driver obeys the direction or fails to stop. The term includes … the period when the police vehicle closes with the subject vehicle in order to give the driver of the vehicle a direction to stop; or … [46] The prescribed procedure12 in relation to interception includes the following: Officers intending to intercept motor vehicles should ensure I. They do not unnecessarily expose themselves or any other persons to danger; and II. Appropriate safety precautions are taken. [47] Senior Sergeant Eaton’s driving along the Bruce Highway contravened that direction. This meets the specified particular, namely that "whilst attempting to intercept the vehicle at night time you drove the police vehicle at excessive speed, namely .. approximately 225 km/h in a 100 km/h area; ..”. [48] The second episode (by which time he had activated his siren and emergency lights, and the motorcyclist clearly knew that he was being pursued) amply satisfies the definition of a pursuit, and his counsel concedes this. I do not consider that the second episode was a pursuit authorised by the terms of the pursuit policy. The allegation that he “commenced an unauthorised pursuit” is made out. But I agree with counsel that the allegation that he “failed to activate the lights and sirens of the police vehicle” is not made out with respect to the second episode. [49] The overall conduct in question was driving a police vehicle at extremely high speeds and creating unnecessary risk, firstly on the highway and secondly in a 60 km/h zone. The first episode offended the intercept policy, and the second episode offended the pursuit policy. [50] Counsel referred to the circumstance that this occurred during the early hours of the morning and that police officers are not bound by the same requirements as other citizens when they are engaged upon certain duties. I do not need to consider the question whether he would have been immune from prosecution for traffic violations, as my concern is with the inherent quality of Senior Sergeant Eaton’s conduct in the context of a disciplinary charge. [51] Counsel also drew attention to the fact that Senior Sergeant Eaton ultimately complied with the relevant policy by desisting from the chase, contending that he obviously must have learnt something from the 2003 episode. [52] Various decisions were referred to showing the level of response by various decision-making police officers in the disciplinary jurisdiction in 12 Exhibit 1, para 14.33.2. -- 9 of 12 -- 10 matters involving a range of conduct including inappropriate driving. They are relevant for consideration, but counsel concedes that they do not fix a range that binds this Tribunal. CMC Submissions [53] Counsel relied upon the following findings of Assistant Commissioner Barnett namely I believe that the actions of yourself on the night of question necessarily endangered your own safety and the safety of other road users. I accept that you are an experienced traffic officer and applied your own risk assessment to the situation. Notwithstanding that assessment the task of following and catching the speeding motorcyclist would have required you to do speeds of extreme risk over a protracted period of at least 20 kilometres. The risks posed by misconduct to yourself and other road users are unacceptable and contrary to the Safe Driving Policy. Further the subsequent high speed pursuit of the motorcyclist was unjustified and contrary to the pursuit policy. Both of these driving episodes, I believe, failed to meet the community expectations of the officer. The element of care and attention was also canvassed. I consider that the driving of a vehicle at such high speeds and the failure to activate the lights and siren lacked the requisite standards of care and attention required and expected. [54] The final statement of the Assistant Commissioner was obviously justified by the first episode but not by the second. I am of the view that whether or not the written policy demanded that lights and siren be activated during episode one, common prudence demanded that every possible warning be available for other users of the highway, and that the Acting Commissioner was correct in regarding that failure as showing a lack of the requisite standard of care. [55] Counsel for the CMC drew attention to the substantial distance over which the chase took place, contending that it was at least 20 kilometres, although on my calculations it was closer to 15 kilometres. In respect of this, an unacceptable risk was taken. [56] Attention was drawn to the pursuit policy and the fact that it is now a police requirement, and that the Acting Commissioner would have known of its importance to police administration. The issue of the police pursuit has been a matter of public concern, especially since incidents like that in Coen in 2003 in which Senior Sergeant Eaton was involved. Public concern has been sufficient for the police to develop and implement protective polices. The breaching of such a policy is an aggravating circumstance, especially in a senior officer. [57] Counsel for the CMC further referred to the new evidence received concerning Senior Sergeant Eaton’s involvement in the previous fatalities, and submitted that his awareness of this makes his conduct more serious and introduces elements of personal insensitivity and recklessness. He -- 10 of 12 -- 11 submitted that the conduct was a bad example to junior officers, and that an appropriate sanction would be dismissal or demotion to Sergeant. Discussion [58] On the evidence that was before Acting Commissioner Barnett I consider his response of imposing a pay point reduction of one point to have been reasonable. I respect the Acting Commissioner’s obvious awareness of the change of police culture and the importance of maintaining compliance with Commissioner’s Directions, especially when they are directed to aspects of public safety and the reputation of the police in the eyes of the public. [59] However the fresh evidence before me renders Senior Sergeant Eaton’s conduct somewhat more serious than that considered by the Acting Commissioner. [60] Senior Sergeant Eaton’s conduct must be seen in the broader prospective that in essence he had to make a quick decision and was guilty of overzealousness in the performance of duties. This is not at the more serious end of the spectrum of police misconduct and I must be careful not to over-react. [61] The submission of the CMC that he should be dismissed is unrealistic, but so too is the submission of his counsel that he should merely have been reprimanded. [62] Chases of this kind put the public at risk and at regular intervals cause extreme distress from collateral damage. It is important that this policy, designed to enhance relations between the police and the public, be observed, especially by its senior officers. The need for restraint in chase situations is very clear from the Commissioner’s Direction, though of course personal judgment is involved in every such decision. [63] The conduct was not dishonest or indicative of bad character, although an element of recklessness has been shown to have been present. [64] Counsel for Senior Sergeant Eaton submitted that the reduction of one pay point is equivalent to a fine of approximately $1,600, and that submission is acceptable. [65] I have decided by reason of the additional evidence that the appropriate sanction needs to be more severe than that imposed by Assistant Commissioner Barnett. [66] The difficulty in the present matter is to determine the most appropriate way of increasing the initial penalty. I do not have a general discretion to fine, and my power in that respect is limited to a fine of $200. The aggravating circumstance revealed by the new evidence calls for a greater increase than this, and I do not think that the addition of a reprimand would suffice. -- 11 of 12 -- 12 [67] On the other hand I consider that simply to double the pay point reduction would be too severe. It is not possible to order the deduction of half a pay point, but it is possible to reduce the period over which the pay point reduction applies. [68] In these circumstances I propose to order that Senior Sergeant Eaton’s salary be reduced by two pay points (Senior Sergeant 4.4 to 4.2) for a period of nine (9) months. Orders [69] So far as the finding of misconduct is concerned, the original finding has not been formally challenged. It subsists and it is unnecessary to make any order of confirmation. I should indicate that even if I were to treat an application for review of the finding of misconduct as having been made, I would have found misconduct in any event. [70] So far as the sanction is concerned, which is the only issue here, although I agree with the response of the original decision-maker on the material before him, the additional evidence makes it necessary to set aside that order and replace it with a fresh one. [71] It is ordered that: The decision of the first respondent of 23 March 2010 imposing a sanction of reduction of one pay point for a period of twelve (12) months is set aside, and in its place it is determined that the second respondent’s level of salary be reduced by two pay points (Senior Sergeant 4.4 to 4.2) for a period of nine (9) months. -- 12 of 12 --