Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564

CITATION: Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 PARTIES: Crime & Misconduct Commission (Applicant) V Deputy Commissioner, Queensland Police Service (First Respondent) Mr Damien Chapman (Second Respondent) APPLICATION NUMBER: OCR015-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 4 November 2010 HEARD AT: Brisbane DECISION OF: Hon James Thomas, Presiding Member Susan Booth, Senior Member DELIVERED ON: 19 November 2010 DELIVERED AT: Brisbane ORDERS MADE: [1] The Tribunal finds that on 18 May 2007 at Clontarf the respondent Sergeant Damien Chapman was guilty of improper conduct in that he used excessive force against Jamie Graham McCormac. [2] It is directed that the hearing resume on the issue of sanction on 8 December 2010 at 9:30am. CATCHWORDS : Police Discipline – Observations on disciplinary system – Nature of QCAT review in such matters – Crime and Misconduct Act 2001 Ss 219G and 219H – QCAT Act Ss17-20 – Police Service Administration Act 1990 S 7.4 APPEARANCES and REPRESENTATION (if any): APPLICANT : Crime & Misconduct Commission was represented by Mr J J Allen RESPONDENT: Deputy Commissioner, Queensland Police Service was represented by Ms M Dixon -- 1 of 18 -- OCR015-10 / Page 2 of 18 Damien Chapman was represented by Mr T Schmidt instructed by Queensland Police Union REASONS FOR DECISION Main Issue [1] On 18 May 2007 Jamie McCormac, a 15-year-old youth, was admitted to Redcliffe Hospital suffering a ruptured spleen. It is highly likely that the injury was sustained within two hours of his admission to hospital. For most of that period he had been in police custody. [2] The main issue is whether this injury was caused by an assault by Sgt Chapman in the course of the arrest and whether Sgt Chapman should be found guilty of misconduct. Present Proceedings and Jurisdiction [3] On 18 December 2009 Deputy Commissioner Rynders decided that disciplinary charges of misconduct against the second respondent Sergeant Chapman were unsubstantiated. [4] The first respondent, Deputy Commissioner Rynders, is the original decision maker, and in accordance with the Hardiman 1 principle, only limited submissions have been made on her behalf. The adversarial respondent is Sergeant Chapman. [5] The Deputy Commissioner’s decision is a “reviewable decision” as defined in section 219BA(1)(a) of the Crime and Misconduct Act 2001, and the CMC’s right to seek such a review is conferred by section 219G of that Act. [6] The CMC was not a party to the original disciplinary action against Sergeant Chapman which was conducted within the police service pursuant to section 7.4 of the Police Service Administration Act 1990. [7] Although two charges were brought, the present review is sought only in respect of the decision that the charge of improper conduct in using excessive force against Jamie McCormac (the complainant) was unsubstantiated. [8] The principal provisions conferring jurisdiction upon this tribunal to conduct such a review are sections 219G and 219H of the Crime and Misconduct Act 2001, and sections 17, 18, 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009. [9] The evidence before this Tribunal consists of the material originally placed before Deputy Commissioner Rynders (745 pages), a record of the proceedings as conducted before her (110 pages), and 5 exhibits supplying supplementary details which were tendered without objection. [10] At the request of Sergeant Chapman’s counsel the Tribunal intimated that in the event of determination that the charge is substantiated a further 1 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35, 36 -- 2 of 18 -- OCR015-10 / Page 3 of 18 opportunity would be afforded to the parties to make submissions on sanction. Principles to be observed in present proceedings [11] This is a proceeding in which the Tribunal is bound to make its own decision on the evidence before it, irrespective of whether or not new evidence is received. It is not an appeal such as one to which the principles of House v The King2 apply. [12] We understand all counsel to accept that Aldrich v Ross3 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. Aldrich decided that the “appeal” or “review” was not one to which the principles of House v The King applied, and that the review Tribunal should make its own fresh determination. 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 that the statutory changes since Aldrich have the effect of requiring a different approach to be taken. Accordingly, under section 20 of the latter Act it is our duty to hear and decide the matter by way of a fresh hearing on the merits. [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 Briginshaw4 and subsequent clarifications such as those in Rejfek5 and Neat Holdings v Karojan6 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. [14] It also seems well established that the Briginshaw civil standard applies generally to disciplinary proceedings such as the present7 . [15] It is also relevant to notice the peculiarities of the current system of determination of police misconduct. In the original proceeding before Deputy Commissioner Rynders there was no prosecutor, and no witnesses were seen or heard. The material was assembled by an investigator with power to require members of the police service to answer his questions; that material was sent to his superiors and in due course Sergeant Chapman was directed to appear before Deputy-Commissioner Rynders, which he did with counsel; she indicated that she would hear submissions in respect of these matters and would then adjourn the proceedings; he pleaded “not guilty” to the charges; his counsel thereupon proceeded to make multiple criticisms of the 2 (1996) 55 CLR 499 3 (2001) 2 Qd R 235 4 (1938) 60 CLR 336, 361-363 5 Rejfek v McElroy (1964-5) 112 CLR 517, 521 6 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170,171 7 Adamson v Queensland Law Society Incorporated (1991) 1 Qd R 498,504; Ooi v Medical Board of Queensland (1997) 2 Qd R 176 -- 3 of 18 -- OCR015-10 / Page 4 of 18 material, having previously supplied extensive written submissions to similar effect; he concluded his submissions by asking his client “Is there anything you want to add?” to which Sergeant Chapman replied “Not really, you’ve described everything”. Deputy Commissioner Rynders then said, “Thank you, Damien, is there anything further that you’d like to add?” to which he replied, “No not at all thanks”. The hearing was then adjourned. No witnesses were sworn or tested and Sergeant Chapman was not further interrogated. [16] This procedure is a relic of earlier armed service orderly room procedure. It may be satisfactory for dealing with minor disciplinary infringements, but it leaves much to be desired in more serious matters like the present. [17] The review in this Tribunal suffers from some similar limitations, in that we have been given essentially the same written material and have not seen or heard any witnesses. But at least we have had the benefit of an adversarial procedure and have received submissions from both sides. [18] We have mentioned these concerns because there are direct conflicts in the witness statements, and there has been no conventional trial to resolve them. Both of the proceedings (before Deputy Commissioner Rynders and before this Tribunal) are tantamount to decisions on the papers. [19] Of course questions of credibility can be properly addressed through such procedures, especially through assessments of inherent probabilities, but there appear to be serious limitations in the present system under which police misconduct matters are determined. These can only be addressed by the legislature. [20] 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. Facts and circumstances [21] In the following paragraphs we will attempt to summarise the evidence presented to the Tribunal during the present review, commencing with matters as to which there is little or no conflict. Along the way we will discuss some of the submissions concerning particular issues. [22] Jamie McCormac was a 15 year old illiterate youth of slight build weighing about 54 kg. He was adversely known to the police for drug and property offences. He will be referred to as the complainant. [23] Sergeant Chapman was at material times a member of the dog squad based in Redcliffe. [24] At about 10:45am on 18 May 2007 Redcliffe police received a complaint of an unlawful entry at a residence at 3 Henzell Street, Redcliffe. They attended and spoke with a witness who informed them that two male youths had been seen gaining entry to the residence and had left the area prior to the police arriving. The witness had been passed at close quarters by one of -- 4 of 18 -- OCR015-10 / Page 5 of 18 the offenders while the other offender was still in the house, and a description was provided of the relevant witness. Several items of property had been stolen. [25] At about 11:00am Sergeant Chapman was recalled to duty to assist with the search for the offenders. [26] At about midday plain clothes detective Constable Stephenson located a male youth, Reece Purtell, in Clontarf. Purtell admitted that he was one of the offenders. On further questioning he nominated Jamie McCormac (the present complainant) as his co offender. [27] The nomination of the complainant as the co-offender was false. It was designed to protect the real co-offender, Andrew Paynter. In the event, about 2 weeks later (on 2 June 2007) Paynter was located and confessed his guilt on this and other matters, and confirmed that McCormac had not been involved. The two offenders, Purtell and Paynter, eventually pleaded guilty to the relevant entry offences and were dealt with by the Court. [28] However on 18 May 2007 the police, including Sergeant Chapman, believed that the complainant was the co-offender and proceeded to his address at 192 King Street, Clontarf to arrest him. [29] Six policeman were involved in the visit to 192 King Street, mainly: ƒ Constable Stephenson ƒ Constable Boreham ƒ Sergeant Connie ƒ Sergeant Chapman ƒ Constable Angus ƒ Constable Dwaine Jones [30] They arrived at about 12:45pm expecting to locate the complainant and the items of property which had been reported stolen. The first three of these police officers took up a position at the front of the house and the last three at the rear where there was a paling fence 6 feet high. [31] The occupants of the house were James O’Connor, Ricci Barker (aged 17) his girlfriend Emma Davidson, Barker and Davidson’s baby, the complainant, and two dogs. The complainant was a temporary lodger, and was permitted to stay there while he was having trouble with his mother. [32] During the morning all the occupants of the house were watching television. At about midday Barker and Davidson left to purchase cigarettes at the shop and took their two dogs for a walk with them. They were returning to the house when the police arrived. They were detained and not permitted to go inside while the search proceeded. Thus, when the police arrived, the only occupants of the premises were O’Connor who was in the toilet, and the complainant who was in the backyard. [33] The first statement of Sergeant Chapman about the ensuing events, prepared by himself in reporting the incident, includes the following: -- 5 of 18 -- OCR015-10 / Page 6 of 18 “Approximately 1 minute after I was at the rear of the residence I saw a male person, the defendant Jamie McCORMAC come down the rear stairs of the residence and was looking under the house in a horizontal direction towards King Street. Although the rear of the residence has a six foot fence I had clear vision of the defendant McCORMAC. I saw then saw the police approaching the front of the residence. It was at this point I saw the defendant crawl under the house appearing to me to hide from police. It was at this point that I climbed the fence and landed on the other side making a noise. I then saw the defendant turn around and look at me. I then yelled, “Police stay still you are under arrest.” The defendant crawled out from under the residence and made movement to run from the rear of the residence in an easterly direction. I then moved quickly across the ground and yelled again, “Jamie stop you are under arrest.” The defendant continued to move away from until I placed hand on his shoulder in which he waived (Sic) it away with his arm and at this point I struggled with the defendant until he surrendered and laid on the ground. I then saw Constable JONES at my shoulder and asked him to handcuff the defendant.”8 [34] From this point on other police arrived in the back yard. All of them maintain that nothing untoward occurred thereafter. However the only persons present during the initial confrontation were Sergeant Chapman and the complainant. [35] The complainant’s account is that while he was close to the ground either under the house or coming out from under the house he was punched in the lower left hand side rib area by Sergeant Chapman, and that the police, particularly Sergeant Chapman, continued to subject him to indignities and maintained an aggressive attitude towards him. [36] There is no doubt that the complainant was handcuffed in an awkward and uncomfortable position with his hands behind his back, and was kept lying or seated for some time in the backyard while other police conducted a search of the premises. There is conflicting evidence as to whether he was complaining or in distress during this period. The occupants of the house say that at various stages they heard screaming or moaning, while the police deny this and say that apart from being dirty from having been on the ground nothing appeared to be amiss with the complainant. Eventually he was led out through the house by police, crying, with his hands elevated above his shoulders and taken to a squad car for conveyance to the watch house. [37] Police records show that they arrived at 192 King Street at 12:45pm; that the complainant was arrested at 12:50pm; that “transport commenced” at 1 pm; and that he arrived at the watch house at 1:10pm. [38] It was obvious by the time the complainant reached the watch-house he was in severe distress. At the charge-counter he claimed injury to his side and was physically sick. Watch-house notes record, “no visible marks but sore to 8 Exhibit 2 pages 103-105. -- 6 of 18 -- OCR015-10 / Page 7 of 18 touch”, while the custody index contains an entry “claimed injury to side at charge counter, physically sick, QAS called and transported to hospital” 9 . [39] Persons at the watch-house took the matter seriously and acted promptly. There is evidence that Sergeant Chapman saw fit to confront the complainant in the watch-house before he was taken away by ambulance, but Sergeant Chapman denies that this happened. [40] An ambulance took him from the watch-house at 1:45pm and he was delivered to the Redcliffe Hospital at 2:00pm. [41] The admission notes signed by Dr Andrew Merry state - alleged assault - punched (L) lower ribs - tender on palpation. Another entry by the same doctor on the same day, apparently after an ultrasound had shown free fluid around the spleen, contains the entry 15YO – assault victim. – punched three (L )ribs ---abdo pain -LOQ tenderness. 10 [42] Within 2 hours of his admission to hospital Sergeant Cheryl Mortensen interviewed him to “tie him down to a version” of the incident. 11 The complainant immediately complained of a number of acts of ill-treatment at the hands of Sergeant Chapman. So far as the major injury in the area of the ribs, when asked “what made the pain?” he responded “He hit me with his closed fist”. When asked “When did that happen?” he responded “I was under the house crawling - … and all I heard was just stop, don’t go nowhere and just stay. And I just started crawling back out… so he ran over, hit me and like when I’m crawling he must have hit me in the side of the ribs.. then I’ve got on the ground and he’s like rolled me over on my stomach and told me to put my hands on my back and stood on my head, put his… knee in my back… and put me in handcuffs… and they’re like real twisted like somehow. .. And then he’s just really hit me, he’s just saying don’t lie to me, where have you been. And I’m just like here and he’s just kicked me in the head saying I don’t fucking like liars.”12 [43] Sergeant Mortensen’s interview was terminated prematurely because of ongoing medical treatment of the complainant. [44] A more detailed interview 13 was conducted 10 days later, while the complainant was still an inpatient at the hospital, by Senior Sergeant Campbell of internal investigations. Again a complaint was elicited of having been punched in the area of the spleen. 9 Exhibit 2 page 34 10 Exhibit 2 pages 156, 158. 11 Exhibit 2 page 19, para 6.16.3 12 Exhibit 2 pages 232-240 13 Exhibit 2 pages 242-292 -- 7 of 18 -- OCR015-10 / Page 8 of 18 [45] Other details recounted by the complainant include that he initially told Sergeant Chapman that he hadn’t done anything wrong, and that while he was restrained on the ground Chapman said, “’I don’t want no lies from you” and that if he did not tell him he did it “Im gonna flog ya”. The complainant continues- “All I said was ‘fine then I done it’ because I didn’t want to get beaten”. 14 [46] The QP9 form prepared for the court brief for proceedings against the complainant, into which Sergeant Chapman may be inferred to have had some input, contains the statement “..the defendant child made full admissions to police in relation to this matter.” There were no subsequent interviews of the complainant in relation to this matter by any other policeman. Of course the complainant did not in fact commit the offence. If Sergeant Chapman obtained a confession from the complainant, as he appears to have initially claimed (and as the complainant concedes), it was a false confession, that is to say an admission of something that he had not done. These circumstances may make it easier to credit that some form of duress was applied to the complainant during his dealings with Sergeant Chapman along the lines of the complainant’s account in the previous paragraph. As opposed to this there are denials by Sergeant Chapman and other police of undue aggression or that anything untoward occurred. [47] A matter worthy of observation is the clarity of some of the conversations mentioned by the complainant, some of which might be thought to be difficult to fabricate. We will mention only two of these. [48] The complainant said that after being handcuffed he was inadvertently placed on an ants’ nest. His evidence includes, “They didn’t do it on purpose but I asked ‘em can I please move and they said no.. ants up my nose in my mouth and the dog squad fellow was actually flicking the ants off of my.. he said.. at least .. don’t say we’re not doing nothing for ya”15 . Interestingly Constable Jones confirms that there was indeed an incident involving ants, although it is not on all fours with the complainant’s version. Jones states “He was saying there was ants on the ground and they were.. trying to crawl all over his face so we lifted him up off the ground and he sat up.” No other police officer admitted that there had been any incident involving ants. Jones also said that the complainant wanted to know what was going on and, “why police were there and stuff”. He further stated that the complainant did not vomit, but “he was just spitting, spitting dirt and grass and stuff like that.”16 [49] The complainant also mentioned that a policeman told him to shut up when he was retching. “And when I was trying to spew I was just spewing.. and he goes mate if you’re not going to spew properly don’t spew at all because you’re making me spew, and I’ll spew all over you..”. 17 He does not allege that this was said by Sergeant Chapman, but it contradicts the saccharine image painted by the other police witnesses, and is a speech that might take some wit and imagination to fabricate. 14 Exhibit 2 page 261 15 Exhibit 2 pages 284, 285 16 Exhibit 2 pages 466, 488 17 Exhibit 2 page 262 -- 8 of 18 -- OCR015-10 / Page 9 of 18 [50] We appreciate that young illiterate people like the complainant might be capable of great deception, but consider that these accounts to be clear and credible and to contain detail that would require greater imagination and ingenuity in script-creation than the complainant possesses. [51] We also note that the investigatory interview of the complainant of 28 May 2007 was lengthy, repetitious and seemingly designed to open up any inconsistencies in the account. An example of the interviewing process appears in the following paragraph. [52] The complainant’s short initial account to Sergeant Campbell was, “I haven’t done nothing wrong and he jumped my fence where I was staying at and said I done a break and enter and he punched me straight in the spleen and I, I dropped..” 18 He had been under the house and that Sergeant Chapman had “accused him of trying to hide under the house and then he “just hit me in the spleen and said you’re under arrest for doing a break and enter..” Subsequently during the interview between Sergeant Campbell and the complainant the following questioning and answers took place. Campbell: Righteo now, you – where were you standing when they arrived? McCormac: I was not standing, I was under the house. … Campbell: Um is it a normal practise for you to go and smoke under there? McCormac: I wasn’t smoking, I was getting my smokes out of there – … Campbell: Ok. Now where did this officer, were’d he um – you said he tackled you? McCormac: No. He just hit me when I was on my fours crawling back out he just hit me straight to the spleen. 19 [53] Under questioning of this kind it would be difficult to maintain consistency, but despite being somewhat inarticulate the complainant has maintained a consistency in the essential details of his story. The interrogation was of a kind likely to lead a facile fabricator into greater inconsistency than that which emerged during the interview. [54] About seven months later Sergeant Campbell, who was the internal investigating officer, conducted a further extensive interview with the complainant.20 Once again in all matters of central relevance there was a consistent complaint. [55] In the interim, on 4 September 2007, the complainant was charged with and pleaded guilty to “obstructing police” in relation to the events of 18 May. At that time the police prosecutor intimated that a number of pending indictable charges would not be proceeded with, and they were struck out. The proceedings were very brief. The complainant’s counsel raised no issue of assault or injury21 . The “facts” recited to the Court by the prosecutor were- 18 Exhibit 2 page 244 19 Exhibit 2 pages 244-253 20 Exhibit 2 pages 653 - 745 21 Exhibit 2 pages 211 - 215 -- 9 of 18 -- OCR015-10 / Page 10 of 18 “At about 12:45pm on 18 May 2007 police attended the home address of the defendant. They knocked on the front door of the dwelling and the defendant has ran out the back door of the dwelling and attempted to climb underneath the house. At this time the defendant has struggled with Sergeant Chapman of the Redcliffe dog squad to avoid being arrested. The defendant was arrested in relation to this matter. He made full admissions to police in relation to his behaviour. He was.. then taken to the Redcliffe watch house.” (Emphasis ours) Submissions concerning the inferences that may be drawn from this episode are dealt with below at paragraph 87. Medical Evidence [56] The uncontradicted medical evidence is that the complainant suffered a grade 3 rupture of the spleen (such injuries are graded between 1 and 5). Multiple lacerations (tears) were present. Medical staff decided to avoid surgery, and investigations included x rays, serial CT scans, ultrasound, “expectant observation” and analgesia. There was internal bleeding and evidence of blood loss for up to 6 days later. He remained an inpatient until 31 May. The report of doctor Hoskins includes: “This was a significant injury that would have been accompanied by pain.. [I]t is highly likely that the injury occurred during the 2 hours (and possibly less) prior to hospitalisation. It cannot be ruled out that it occurred earlier. .. A blow of the type described, regardless of the causative object, is the single most plausible explanation for an injury of this type.”22 [57] It may be observed that the time between the incident complained of and the admission to hospital was 1 hour and 10 minutes, comfortably within the 2 hour period mentioned by Dr Hoskins. Sergeant Chapman’s version [58] Sergeant Chapman’s counsel summarised his client’s version of the critical moment in this way: “McCormac has moved in what [Sergeant Chapman] believed was an attempt to escape, so [Sergeant Chapman] has taken him to the ground by placing [Sergeant Chapman’s] left knee into contact with his right knee and applying pressure. This has caused McCormac to be lowered gently to the ground where, after a period of about 10 seconds, he was handcuffed with the assistance of Jones.” [59] We have earlier summarised the initial statement prepared by Sergeant Chapman. 23 His final version, given to Senior Sergeant Campbell on 9 January 2008 asserts even less physical contact between him and the complainant than the earlier version suggests. It was to the effect that he saw the complainant moving under the house, come out, stand up and move 22 Exhibit 2 page 192 23 Above paragraph 33 -- 10 of 18 -- OCR015-10 / Page 11 of 18 towards the fence. Chapman called out, “Jamie stay still, you’re under arrest,” following which “McCormac started to pick up the pace”. Chapman then moved 3, 4 or 5 steps and “I’ve just put my hand on him and I said Jamie you’re under arrest for the break and enter at Henzell street” He then described the conduct attributed to the complainant to ground the “obstruct police” charge as follows- “He’s just sort of, it wasn’t like a direct assault it was more a, a push like, like don’t touch me type of thing, bit of an attitude type thing. I’ve kept my left hand on him and ah I’ve, with my I suppose chin come knee just put pressure on to his perineal if that’s the way we say it which just bends him down, I said get on the ground. Which he did so with his own 2 hands. So he took his own weight and everything. He wasn’t dropped to the ground, his legs weren’t sweeped from underneath him or anything and he’s gone to the ground.”24 [60] Sergeant Chapman’s answers are to the effect that he applied his left knee, without any percussion, to the complainant’s right knee to ease him down. The reference to “perineal” is difficult to fathom and may be an error in transcription or in anatomical description. In the event he asserted that there was no leg sweep or hip throw used and there was no other significant bodily contact than the initial contact with the leg. In this respect there are a number of inconsistencies with his account as noted by Acting-Superintendent Jones who obtained an account from him on the day of the occurrence. [61] Having heard the complainant had been taken from custody to hospital, Acting-Superintendent Jones telephoned Sergeant Chapman to “find out what the circumstances were. I wanted to.. get his version of events.. as soon as possible in case it.. required further investigation.” He made diary notes a few hours later which he has used to refresh his memory. They are to the effect that Sergeant Chapman told him that the complainant tried to climb the fence to make his escape, saw Chapman and ran back to the house and hid underneath it. It continues, “Chapman jumped the fence and.. was able to.. control McCormac after a slight struggle and said.. at one stage.. he swept McCormac’s legs out from underneath him and McCormac went to the ground.. Chapman said that he went down fairly softly.. in actual fact I think he said he might have lowered him down.. to break his fall.” Chapman’s account to Acting Superintendent Jones continues that at the watch house he challenged McCormac about the injury. When advised by the watch-house keeper that McCormac needed to go for medical treatment Acting-Superintendent Jones was “sixty or seventy per cent certain that Chapman had told him that he went across to McCormac and asked him “what’s the go?” and accused him of making up a false injury to try to avoid charging process” 25 [62] Sergeant Chapman’s counsel complains that the internal investigator failed to put that conversation to his client and that he was thereby disadvantaged. Sergeant Chapman had in fact been questioned about that interview by the internal investigator. When asked what he had told Inspector Jones, he had 24 Exhibit 2 page 693 25 Exhibit pages 638, 640 -- 11 of 18 -- OCR015-10 / Page 12 of 18 responded, “just basically what went on which is what I’ve passed on to you without going through it from start to finish.” He indicated that he did not have any notes about his conversation with Inspector Jones. Counsel’s point is that the specifics of that conversation were not put to his client one by one. There may have been some force in that submission had matters stopped there. But prior to the matter coming on before Deputy Commissioner Rynders, his counsel supplied the police department and in due course Commissioner Rynders with his client’s instructions about that conversation point by point. That response, diplomatically worded, was that Sergeant Chapman doubted that he used the words “leg sweep” and that he was at pains to inform the acting Superintendent that he did not punch, kick or otherwise apply force with a striking momentum to the complainant. The submission further proceeded that he “maintains, with the greatest respect to the acting Superintendent, he did not say he swept McCormac’s leg” and that Sergeant Chapman was prepared to concede that, as he has limited recollection of the conversation, “he may have said something which gave the Acting Superintendent the incorrect impression a leg sweep had occurred. He makes this concession because he personally knows the acting Superintendent is a man of great integrity and would be providing his honest recollection of the conversation also.” [63] But at the end of the day it remains apparent that on several isues there are significant discrepancies between the recollections of Sergeant Chapman and his superior officer. Discussion [64] The complainant was under the surveillance of other police continuously after the initial contact between him and Sergeant Chapman alone. There is no suggestion by the complainant or by anyone else of any other subsequent incident capable of causing injury to the relevant area and neither is there any suggestion of any further incident while he was conveyed from King Street and the watch-house in a police car. [65] Furthermore, Sergeant Chapman’s own evidence has the complainant moving freely without any apparent physical limitation during the events immediately preceding their bodily contact. [66] The submissions on behalf of Sergeant Chapman are to the effect that there are so many inconsistencies in the complainant’s statements and inconsistencies with the police witnesses that he cannot be accepted. These submissions run to 44 pages, and we do not propose to set them all out, but will discuss some of them. [67] The critical issue in this case is whether Sergeant Chapman assaulted the complainant in the left lower rib area during or immediately before the arrest. [68] Counsel for Sergeant Chapman pointed out that the complainant is a 15 year old youth with extensive criminal history who has had extensive interaction with police, and suggested that he came from an “anti-police” family. -- 12 of 18 -- OCR015-10 / Page 13 of 18 [69] Reference was made to the fact that during his initial interview with Sergeant Mortensen at the hospital, his statement included - “the police officer’s jumped the fence and hit me and then put me to the ground then just put his foot on my head and brought my arms around my back to arrest me”. In short, early in his interview with Sergeant Mortensen he complained of supervening events rather than the initial punch which caused the injury. In our view these statements, and further statements that Sergeant Chapman kicked him in the side of the head when he was already on the ground, are by no means inconsistent with his principal complaint. The supervening details were repeated and adhered to by the complainant under repetitive questioning from police officers. As soon as Sergeant Mortensen asked him the question about the cause of his sore ribs, he responded “he hit me with his closed fist” and “he’s ran over, hit me and like when I’m crawling he’s hit, must have hit me on the side of the ribs.”26 [70] The statements upon which counsel relies for inconsistencies are in our view descriptions of additional matters that he says happened during his dealings with Sergeant Chapman. [71] Another submission is that the complainant vacillated as to whether the assault occurred while he was still under the house and crawling out, or after he crawled out. We do not think uncertainty on this particular detail is of any particular significance. [72] Counsel also submitted that there was inconsistency between allegations that he was punched in the ribs and kicked in the ribs. However close examination of the evidence does not suggest that the complainant ever suggested that he was kicked in the relevant rib area. [73] Counsel also referred to the fact that Sergeant Chapman has lost the index finger of his right hand. It is asserted that he cannot form a fist, although there is no medical evidence on this point. It was suggested by counsel that it could be assumed that he was a right handed man. However during one of his interviews with senior Sergeant Campbell, while describing his own agile left knee action by which he allegedly brought the complainant to the ground, he claimed “I’m actually left footed.”27 There is no alleged disability in his left hand. We do not think it can fairly be inferred that it was impossible for Sergeant Chapman to have punched the complainant as alleged. The complainant at the relevant time was on all fours and there is no clear evidence whether Sergeant Chapman approached him from the front or the rear. Dr Hoskins’s report states that he was instructed that “the arresting officer has asserted that he cannot form a fist as he has lost a finger” and went on to conclude “a blow of the type described, regardless of the causative object is the single most plausible explanation for an injury of this type.” [74] Reliance was then placed upon the measurement of 56cm as the height of the house from the ground, as making it physically impossible for him to have been punched as alleged. We do not accept that submission, and observe 26 See exhibit 2 pages 234, 237-239 27 Exhibit 2 page 698 -- 13 of 18 -- OCR015-10 / Page 14 of 18 that the complainant’s allegation is in any event that he was punched either when he was under the house or in its near vicinity. [75] It was further submitted that the complainant’s excuse for going under the house (that he was looking for dumpers which had been thrown out the window) is inherently incredible. As to this, the statement of Ricci Barker suggests that searching for dumpers was indeed something that the complainant was sometimes reduced to doing. He states, “His mother didn’t give him any money while he was staying here. You know we could shout him a few cigarettes but you know we only have a certain amount of money ourselves. Like if he needed dumpers he’d always go through the ashtray..”28 Ultimately the complainant’s reason for going under the house does not really matter. The fact is that he did go there, and everyone (Sergeant Chapman included) agrees that he did, and the relevant confrontation occurred immediately after. Such an issue might be relevant on 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. [76] Counsel further submitted that the evidence of O’Connor, which supports the complainant in a few respects such as hearing his screams, and of similar violence being shown by Sergeant Chapman to him (O’Connor) also should be entirely disregarded. O’Connor described the manner in which the complainant was treated after his arrest, describing his passage through the house as “the police officers were holding his arms up behind his back and pulling them up above his shoulders like.. pulling his elbows above his shoulders and he looked like he was in a bit of pain the way they were taking him out.” There was a deal of supporting evidence, including that of Emma Davidson as to the handcuffs having been placed in an awkward or painful position and of his being led out in this way. O’Connor is however the only witness who claims to have observed blood on the complainant’s lips or chin area. It is appropriate that O’Connor’s evidence be regarded with caution, but it is not to be entirely disregarded. [77] Counsel also sought to have Barker’s evidence disregarded. His statement however reads as a more candid one than O’Connor’s. Barker was detained in the street outside the house, and says that he “heard Jamie moaning.” 29 He says, “That police officer had his arm around through the back like this and pulled his arm up like yeah like real hectic. Like it, it wasn’t just a simple like handcuff and like walking to the car.. you could.. tell that he was in pain.” He thought that Jamie was in pain from the handcuffs and confirmed that apart from the time when he and Emma Davidson had been to the shop they were all (including the complainant) in the house together all morning. One of the things that happened during the morning was that they had brought in a laundry cupboard and a cupboard for the kitchen. He and Davidson told police that the complainant had been with them all morning but were contradicted by the policeman who told them that he had been out doing a break and enter. 28 Exhibit 2 page 331 29 Exhibit 2 page 328 -- 14 of 18 -- OCR015-10 / Page 15 of 18 “We’re like we’re tell you officer he has not been out, he’s – there’s been someone at the house all day. And they’re like no well I’m telling you right now he’s been out doing break and enters this morning. We’re just like ‘alright then’.. we didn’t want to argue with him.” 30 Barker admitted that the police found a bong, an electric coffee grinder and a ceramic bowl. He told Sergeant Campbell “I admitted using them, they were in the house, like I knew they were here. I had used them myself you know.” He pleaded guilty to possession of those objects. [78] Barker’s evidence does not go very far in confirmation of the complainant’s account, but it reads as a candid presentation without elaboration. We see no good reason to disregard his evidence. The fact that he and his colleagues assumed that the complainant’s pain was from the handcuffs rather than from internal injuries hardly counts against any of them. [79] Counsel placed reliance upon the fact that all police officers at the scene on that day denied that anything untoward occurred in their presence. This however does not get over the period when Sergeant Chapman and the complainant were alone. Nor does it help to explain how the injury occurred, other than excluding the possibility that it occurred after the complainant had been arrested. It is noted however that there are some inconsistencies of detail between some of the police witnesses and Sergeant Chapman. [80] Constable Jones confirms that there was an incident in which the complainant complained about ants on the ground. Jones came over the rear fence of a neighbours yard and then over the side fence. By the time he arrived Chapman had the complainant lying on the ground, “with his hands at the back of him.” 31 Jones then applied handcuffs. Jones expressed uncertainty about the details of Sergeant Chapman’s movements and observed that the complainant was “whinging” about what was going on and “why we were there”. He also said that one of the plain clothes officer’s “may have” come out and had a chat to McCormac about the break at Henzell Street. At some stage Sergeant Chapman went inside. [81] The submissions proceed that the investigator “hung his hat” on the fact that the complainant suffered a serious injury. He complains that what would constitute moderate force is not discussed in the evidence. We do not think that this is particularly compelling. Neither is the submission that possibly such an injury could have been caused to a person of the complainant’s slight build with lesser than moderate force. 32 [82] Reference was also made to the fact that a drug screen test was conducted on the complainant while he was an inpatient 5 days after his admission, on 23 May 2007 and that benzodiazepines, cannabinoides and opiates were found. From this counsel proceeded to suggest that these drugs might have masked the effects of pain for a period of time and that he might therefore have suffered a spleen injury at some stage before the police arrived. This 30 Exhibit 2 pages 332, 333 31 Exhibit 2 page 459 32 -- 15 of 18 -- OCR015-10 / Page 16 of 18 draws a rather long bow. As the evidence stands, it would be difficult to exclude the possibility that the benzodiazepines and opiates were the result of medical treatment. The fact that there was a residue of cannabinoides is neither surprising nor significant. Furthermore the submission does not address the apparent physical fitness and activity of the complainant prior to his confrontation with Sergeant Chapman or the undoubted fact that he suffered a serious injury from which a nominated event during the relevant 2 hour period before admission into hospital is the only viable explanation. [83] Counsel submitted that it would seem likely that the injury was suffered during transport rather than at the house as the expert believes it would have caused him to seek treatment. We think this submission is contrary to the evidence that nothing unusual happened during transportation. [84] The next submission was that a possible explanation for the injury is that, “McCormac was injured during the break and enter.” Such a suggestion was advanced by Sergeant Chapman during the interview and also by his counsel before us. It is fatuous. It ignores the evidence that the complainant did not do the break and enter, and was present in the house at King Street all morning. [85] A further submission is that the complainant may have been injured by participating in moving furniture at the King Street house earlier in the morning when two items of furniture were brought in. Once again this submission appears to clutch at straws, and takes no account of the time factor or of the complainant’s obvious physical fitness right up to the time of the confrontation with Sergeant Chapman. [86] Counsel also relied upon the character and reputation of Sergeant Chapman as deposed to in references which he tendered. These should be read along with other evidence of his service history. This includes an ESC Complaint History (attachment 4.1 to Sergeant Chapman’s report)33 which details disciplinary or misconduct complaints from more than 60 persons with whom he had contact during his service. However we do not think it appropriate to attach any significance to this in the absence of further evidence or submission. We note however that evidence of good character is of little avail if the other evidence shows that he committed the charged misconduct. [87] Finally, counsel submitted it was inconceivable that the lawyer who acted for the complainant on 4 September 2007 when he pleaded guilty to “obstruct police” would have failed to raise Sergeant Chapman’s assault as a factor to be taken into account in the sentencing process, if the complainant had told her about it. The inference was that if he did not tell her about it then it did not happen. It is not known whether he mentioned it to his counsel or not, but if he did her failure to rely on it 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 penalty. We do not see this occurrence as casting any real doubt upon the other evidence. 33 Exhibit 2 pages 219-231 -- 16 of 18 -- OCR015-10 / Page 17 of 18 [88] The submissions on behalf of Sergeant Chapman allege discrepancies in the evidence of the complainant, O’Connor and Barker, in contrast to a virtual complete consistency in the police denials, and the unlikelihood that police from different areas and different ranks have colluded. 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. [89] We shall only briefly note the submissions of Mr Allen, counsel for the CMC. Many of these have been covered already in our discussion of the submissions on behalf of Sergeant Chapman. [90] It is noteworthy that Sergeant Chapman’s version does not raise any issue of accidental mishap. It is that nothing happened that could have caused the injury. [91] Mr Allen drew attention to the inconsistency in Sergeant Chapman’s versions in that his initial version was that he and the complainant “struggled”. This is confirmed not only in Sergeant Chapman’s original statement but also in Acting-Superintendent Jones’s written note prepared on 18 May 2007 of his conversation with Sergeant Chapman. Sergeant Chapman leter retreated from his earlier account. There are further discrepancies on the issue whether Sergeant Chapman confronted the complainant at the watch-house after he complained of injury. Sergeant Chapman now denies that he did so, but in our view he admitted to Superintendent Jones that he had, and that admission is further supported by the evidence of the actual primary offender, Reece Purtell, who had been taken into custody and was in the watch-house at material times. In his statement he said that he had seen Sergeant Chapman talking to the complainant at the watch-house. This particular issue is one of the many circumstances from which some inference on credit may be drawn. [92] There are two diametrically opposed versions of the relevant events. But for the simple initial event only two persons were present. [93] In our view, there has been a consistency of complaint, from at least the time of the complainant’s admission to hospital. One hour after his arrest, at about 2pm that day the complainant told the doctor he was assaulted and punched in the lower ribs. By 4pm the complainant had told a told the QPS investigator, in a testing interview with Sergeant Mortensen, of a range of ill- treatment. When pressed on the major injury, the complainant stated that he had been hit with a closed fist. Ten days later, the complainant, in a further testing interview with Sergeant Campbell, again complained that he was punched in the spleen. Overall we are satisfied to the required level that the complainant has been generally truthful. [94] Corroboration to confirm the complainant’s version as to the subsequent events is only slight, although arguments are available both ways on this aspect of the case. But the corroboration and supporting evidence of the primary event is overwhelming. -- 17 of 18 -- OCR015-10 / Page 18 of 18 [95] We find - a) On 18 May 2007, in the course of arresting Mr McCormac, Sergeant Chapman applied force to him by striking his lower left back area in the vicinity of his ribs; b) The application of force by Sergeant Chapman to Mr McCormac caused an injury, mainly a ruptured spleen; c) The application of such force was not authorised justified or excused by law. Orders [1] The Tribunal finds that on 18 May 2007 at Clontarf the respondent Sergeant Damien Chapman was guilty of improper conduct in that he used excessive force against Jamie Graham McCormac. [2] It is directed that the hearing resume on the issue of sanction on 8 December 2010 at 9:30am. -- 18 of 18 --