Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595

CITATION: Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595 PARTIES: Mr Damien Belz v Assistant Commissioner Paul Wilson APPLICATION NUMBER: OCR288-10 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Joanne Browne, Member DELIVERED ON: 16 November 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for stay is dismissed. CATCHWORDS : Application for stay Queensland Civil and Administrative Tribunal Act 2009 section 22; public interest considered; and interests of the applicant considered APPEARANCES and REPRESENTATION (if any): Decision on the papers. -- 1 of 5 -- OCR288-10 / Page 2 of 5 REASONS FOR DECISION The Application [1] An application has been made by the applicant to review a decision made on 29 October 2010 by a assistant commissioner of police, Assistant Commissioner Paul Wilson (“the respondent”) in relation to a disciplinary hearing conducted under the Police Service Administration Act 1990 and the Queensland Police Human Resource Management Manual (“HRMM”) held on 19 October 2010. [2] The respondent delivered his findings and reasons on 29 October 2010 that the following disciplinary charge of misconduct against Sergeant Damien Anthony Belz (“the applicant”) was substantiated: Matter 1 That on the 29 th day of November 2009 at Surfers Paradise your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you: a) Used excessive force against Rebecca Maree Pitt, whist she was in custody; and b) Used excessive force against Rebecca Maree Pitt, whilst she was in custody. [Section 1.4 and 7.4 of the Police Service Administration Act 1990 and s. 9(1) (f) of the Police Service (Discipline) Regulations 1990.] Further and better particulars Investigations have identified that: ƒ On 29 November 2009 you held the position of Sergeant at the Surfers Paradise Police Station, within the South Eastern Region; ƒ You performed duty as a shift supervisor from 11:00pm in the prisoner processing area at Surfers Paradise Station; ƒ At about 11:40pm on 29 November 2009 Rebecca Maree Pitt was in custody and placed in a holding cell; and ƒ While in the holding cell the prisoner attempted to self harm by hitting her head against fixed objects within the holding cell. In relation to 1 a): ƒ At about 11:50pm on 29 November 2009 you entered the holding cell, took hold of Rebecca Maree Pitt’s hair and moved her from the cell floor to the cell bench seat. -- 2 of 5 -- OCR288-10 / Page 3 of 5 In relation to 1 b): ƒ At about 11:52pm on 29 November 2009 you re-entered the holding cell, took hold of Rebecca Maree Pitt’s hair and moved her from the cell bench seat to an area outside that holding cell. [3] The respondent having found the charge to be substantiated ordered that the applicant be demoted in rank from Sergeant 3.3 to Senior Constable 2.9 for a period of twelve (12) months from [29 October 2010] and further ordered that: “At the end of the twelve month period and dependant upon your successful completion of your Performance Planning and Assessment (PPA), I order you be eligible to apply for the rank of Sergeant”. [4] The applicant has filed a further application seeking a stay of the decision under review the respondent having ordered that the sanction take effect immediately. The Issues and the Legislation [5] The tribunal has jurisdiction to review the decision made by the respondent by virtue of section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) and section 219G of the Crime and Misconduct Act 2001. [6] The tribunal in exercising its review jurisdiction “must decide the review in accordance with [the QCAT Act] and the enabling Act under which the reviewable decision being reviewed was made”.1 The nature of the review is by way of a rehearing on the evidence (original evidence) that was before the original decision maker, the respondent.2 The tribunal is “bound to make its own decision on the evidence before it, whether or not new evidence is received”.3 [7] Under section 22 of the QCAT Act, the tribunal can make an order to stay a decision only if it considers “the order is desirable” after having regard to the interests of any person whose interests may be affected by the making of the order or the order not being made; having regard to any submissions made to the tribunal by the decision-maker for the reviewable decision; and having regard to the public interest. [8] The applicant sets out the reasons in support of the application for a stay of the decision as follows: “The effect of the Respondent’s decision to demote reducing the Applicant’s standing and authority within the Queensland Police Service. It prevents him from enrolling in courses applicable for promotion to the next rank, and should the Tribunal overturn the Respondent’s decision on review, the 1 s19(a). 2 Crime and Misconduct Act 2001 s 219H. 3 Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 at 6. -- 3 of 5 -- OCR288-10 / Page 4 of 5 inability to undertake these courses would not be curable by order of the Tribunal. Further there is no order the Tribunal could make which would remove the embarrassment, or loss of prestige arising from an actual demotion in the event the Tribunal overturns the Respondent’s decision. A stay of the Respondent’s order would not prevent the order being given full force, and having the same effect, at a later date should the Tribunal uphold the Respondent’s decision.” [9] The respondent opposes the application for a stay and has provided written submissions in support. The respondent in written submissions, refers to the decision of Elliott v Queensland Building Services Authority [2010] QCAT 180 and that the tribunal in considering a stay order does not have an unfettered discretion and is required to form a positive view that the order is “desirable”. The tribunal, in the decision of Elliott accepted submissions made by the party opposing the order for a stay, that “desirable” in the context of section 22 of the QCAT Act “denotes a positive aspiration or something worthy of achievement”.4 [10] The tribunal is also referred to HRMM by the respondent, in particular the “purpose of discipline” at 18.1.1: ƒ Maintain public confidence in the Service ƒ Maintain the self esteem of members of the Service ƒ Maintain confidence in the ability of the Service to fulfil its statutory functions ƒ Maintain proper standards of conduct for members of the Service (by specific and general deterrence principles) ƒ Maintain the efficiency of the Service; and ƒ Protect the reputation of the Serivce [11] The respondent in written submissions argues that the misconduct found to be substantiated is “of a serious nature and one which does not display proper standards of conduct expected of police officers and one which could be referred to as disgraceful, improper or unbecoming of a police officer”. The respondent refers to the findings made by the respondent decision maker and the evidence relied upon in particular a video footage of the incident which was “determined to be excessive and inappropriate”. The respondent decision maker in his Disciplinary Findings and Reasons states: “The video footage for this matter [1(a)] shows you removing the prisoner from the floor whilst holding her hair. It also shows you did not immediately release the hair once the potential for self harm had been affected and the force shown was excessive”.5 4 Elliott v Queensland Building Services Authority [2010] QCAT 180 at 7. 5 p 8. -- 4 of 5 -- OCR288-10 / Page 5 of 5 [12] The respondent further argues that the applicant’s actions placed him and other officers at risk of being assaulted by the female prisoner in failing to remove the prisoner by other methods consistent with the police service’s Police Operational Skills Training. [13] In relation to the applicant’s argument that the effect of the respondent’s decision prevents him from enrolling in relevant courses for promotion to the next rank, the respondent submits that the applicant has completed various “modules” which make him “eligible to apply for a Senior Sergeant position”. Conclusion [14] The applicant has failed to provide sufficient grounds to establish how his interests are to be affected for the purposes of considering the application for a stay having regard to the principles set out in Elliott. The applicant’s submission that he is prevented from enrolling in courses available for promotion is not accepted having regard to the submissions made by the respondent in particular that the applicant has already completed various modules which enable him to apply for a Senior Sergeant position. [15] The tribunal accepts the respondent’s submissions that in considering the public interest the applicant’s conduct would be viewed as unacceptable by the community and this outweighs any personal interests argued by the applicant. [16] Furthermore the applicant’s submission that he has personally been affected by the decision by way of embarrassment, or loss of prestige arising from the sanction is outweighed by the respondent’s submission in relation to the public interest principles being community perceptions of the alleged conduct. [17] The tribunal is not satisfied having regard to all of the issues raised by the applicant and the submissions made by the respondent that it is desirable to make an order to stay the operation of the decision under review and the application for a stay is therefore dismissed. -- 5 of 5 --