Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490

CITATION: Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490 PARTIES: Crime and Misconduct Commission (Applicant) v J. P. SWINDELLS, Assistant Commissioner (First Respondent) P. B. GARDINER (Second Respondent) APPLICATION NUMBER: MSR005-07 MATTER TYPE: Occupational Regulation HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham (Deputy President) DELIVERED ON: 2 September 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. Upon review, the decision of Assistant Commissioner Swindells in relation to: a) the finding that charges 1 and 2 were unsubstantiated; and b) the sanction imposed upon Constable Gardiner in relation to the third misconduct charge admitted; is set aside. 2. The misconduct charges as particularised in these reasons are substantiated. 3. Constable Gardiner is dismissed from the Queensland Police Service. 4. His dismissal is suspended on the following conditions: a) The period of suspension is three years from the date of this order; b) During the suspension period, Constable Gardiner must attend Dr Lynagh for further assessment and undertake such counselling, treatment or training program he is reasonably directed to undertake by the prescribed officer of the Queensland Police Service, upon the recommendation of Dr Lynagh; -- 1 of 9 -- c) If Constable Gardiner is found to have committed an act of misconduct or to have contravened a condition during the suspension period, the suspension is revoked and the decision to dismiss Constable Gardiner from the Queensland Police Service has immediate effect. CATCHWORDS : MISCONDUCT – Police Officer – where officer used excessive force against persons in custody – where officer incited a person to fight him – where conduct admitted – where delay between conduct and resolution has been extensive – where officer has been of good conduct since – whether impact of the delay is relevant to the penalty in this case DISMISSAL – where joint submission by two parties that agreed orders are appropriate – where agreed that dismissal should be suspended – whether suspension of sanction is appropriate – whether conditions should be imposed on suspension Misconduct Tribunals Act 1997 ss 26(2), 28, 35 Police Service Administration Act 1990 s7.4 Queensland Civil and Administrative Tribunal Act 2009 ss 243, 259, 260, Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 followed Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597 applied Spencer v Baulch (2004) QCA 234 applied REASONS FOR DECISION [1] This matter has a lengthy and complex history. Disciplinary proceedings were brought against Constable Gardiner on allegations that he used excessive force against a number of people in police custody (charges 1 and 2) and enticed another to engage in a fight with him (charge 3).1 1 The proceedings were brought pursuant to the Police Service Administration Act 1990 s7.4 2 -- 2 of 9 -- [2] Assistant Commissioner Swindells conducted a disciplinary hearing in April 2007 and delivered his decision in November that year. He dismissed charges 1 and 2 and, on Constable Gardiner’s admission, found charge 3 proved but imposed no sanction. [3] The CMC appealed the decision to the Misconduct Tribunal, since abolished. The appeal was heard over 3 days in January and May of 2009. The decision, made on 31 July 2009, was to dismiss the first two charges. [4] The CMC sought judicial review of the decision of the Misconduct Tribunal. On 15 December 2009, his Honour Justice Applegarth set aside the decision and remitted the matter to QCAT, the successor to the Misconduct Tribunal. [5] The Misconduct Tribunals Act 1997 has been repealed.2 The effect of transitional provisions is that the Misconduct Tribunals Act continues to govern these proceedings.3 QCAT has only the functions and can make only the decisions the former Misconduct Tribunal could have made in relation to this matter under the Misconduct Tribunals Act.4 [6] During the protracted course of the proceedings, the parties have exhaustively examined the evidence gathered during the initial investigation. Its scale is imposing, running to 5,500 pages. [7] With a view to narrowing and, if possible, resolving at least the factual disputes, the parties were directed to attend a compulsory conference in QCAT. It is to the credit of the parties and their representatives that they actively embraced the opportunity the conference offered. Facilitated by QCAT members, the parties reached an agreement about the charges and the orders QCAT might properly make. [8] As the original decision maker, Assistant Commissioner Swindells adopted a neutral position in the proceedings. His representative signed the agreement reached at conference but made no submissions either in support of or against the proposed orders. The parties agreed the evidence substantiated agreed particulars of the charges. The CMC and Constable Gardiner proposed QCAT impose the sanction of dismissal, but suspend it for 3 years. They both provided written submissions in support of that proposition. [9] For reasons explored below, I have resolved to make those orders, subject to a further condition canvassed with the parties. The conduct substantiated [10] Three charges of misconduct were laid against Constable Gardiner. In the course of the proceedings the particulars of those charges were amended. The particulars that the parties agree are substantiated by the evidence before QCAT are: 2 Queensland Civil and Administrative Tribunal Act 2009 s 243 3 Queensland Civil and Administrative Tribunal Act 2009 ss 259, 260(5) 4Queensland Civil and Administrative Tribunal Act 2009 s 260(4) 3 -- 3 of 9 -- Charge one: That between 29 June 2004 and 1 October 2004 at Brisbane the second respondent’s conduct was improper in that he: (a) used excessive force against diverse persons, whilst they were being held in police custody and restrained by handcuffs. [s 1.4 of the Police Service Administration Act 1990 and s 9(1)(f) of the Police Service (Discipline) Regulations 1990] Further and better particulars • On 30 June 2004 at the Brisbane Central Mall Beat office the second respondent slapped Matthew Francis in the face with the second respondent’s hand. • On 13 September 2004 the second respondent threw Cain Revell across the floor at the Brisbane City Beat Office. • On 28 September 2004 the second respondent kicked Barry Ludwig in the body at the Brisbane City Beat office. • On 28 September 2004 the second respondent slapped Barry Ludwig across the face with an open hand at the Brisbane City Beat office. • On 30 September 2004 the second respondent slapped Joseph Gracia across the face with an open hand at the Brisbane City Beat office. • On 30 September 2004 the second respondent punched Joseph Gracia in the head with the second respondent’s hand at the Brisbane City Beat office. Charge two: That between 2 July 2004 and 17 August 2004 at Brisbane the second respondent’s conduct was improper in that he: (a) used excessive force against diverse persons, whilst they were being held in police custody. [s 1.4 of the Police Service Administration Act 1990 and s 9(1)(f) of the Police Service (Discipline) Regulations 1990] Further and better particulars • On 3 July 2004 the second respondent punched Scott Douglas in the body at the Brisbane City Beat office. • On 16 August 2004 the second respondent forced Grant Alexander’s face onto a wall at the Brisbane City Beat office. 4 -- 4 of 9 -- • On 16 August 2004 the second respondent kicked Grant Alexander in the body at the Brisbane City Police Beat office. • On 16 August 2004 at Brisbane the second respondent punched Grant Alexander in the body at the Brisbane City Beat office. Charge three: That on 13 September 2004 at Brisbane the second respondent’s conduct was improper in that he: (a) removed handcuffs from Cain Revell, a person in police custody, and enticed him to engage in a fight with the second respondent. [s 1.4 of the Police Service Administration Act 1990 and s 9(1)(f) of the Police Service (Discipline) Regulations 1990] [11] Acting on the parties’ agreement, I have proceeded on the basis the material before QCAT establishes the charges as particularised.5 The orders proposed [12] The purposes of disciplinary proceedings are: to protect the public; to maintain standards of behaviour in the police service; and to maintain confidence in the service.6 The Misconduct Tribunals Act uses the term punishment. Nevertheless, the objectives of disciplinary proceedings import additional considerations. The objectives of protecting the public and maintaining confidence in the police service, broaden the scope of the exercise beyond deterring conduct that falls below expected standards. [13] The joint submission of the CMC and Constable Gardiner is that Constable Gardiner is dismissed from the Queensland Police Service, that sanction to be suspended for three years. [14] Dismissal is the most serious penalty that may be imposed upon an officer against whom disciplinary charges are proven. Although Assistant Commissioner Swindells did not have authority to dismiss Constable Gardiner, QCAT is not limited by the restrictions on his power.7 [15] I was referred to a number of decisions involving the use of force by officers, resulting in a range of penalties from fine to dismissal, suspended or otherwise. While they are useful illustrations of the range open to QCAT, it is 5 Misconduct Tribunals Act 1997 s 28(2) 6 Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597 7 Misconduct Tribunals Act 1997 s 26(2) 5 -- 5 of 9 -- not surprising that none of them is directly comparable to this case.8 In at least one case a sanction of dismissal was suspended.9 [16] Constable Gardiner used excessive force against 6 individuals. In some cases he responded improperly to provocative conduct. On others he used excessive force when some level of force was, arguably, justified. He incited one person to fight him, even though that complainant was smaller than he and heavily intoxicated. The conduct occurred on six separate occasions over a 3 month period. [17] There was a similarity about the nature of each incident which revealed a concerning pattern of conduct. The offences occurred when each complainant was in police custody. Some were handcuffed at the time. In the main, the complainants were relatively young men. One was so intoxicated he could not recollect the event. [18] Constable Gardiner abused the intrusive powers conferred on police for protective purposes. He revealed his contempt for those who complained to him about his conduct. He was arrogant in his disregard for the reputation of the police service, by asserting complaints against him would be futile. Constable Gardiner denied allegations, now not contested, in the face of the evidence of observers, including fellow police officers. [19] These features justify imposing this most serious sanction. [20] I have been asked to suspend the order to dismiss Constable Gardiner from the Queensland Police Service. QCAT has the power to do so if it considers it appropriate.10 Although QCAT’s power to suspend is unfettered, it ought not be used to avoid an unpleasant duty.11 I am persuaded I should suspend the order in this case. [21] It is a little over six years ago that the first charged incident occurred. It may be the number of complaints that extended the usual timeframes. There was a significant delay between the incidents and the first hearing. This was exacerbated by proceedings in the Misconduct Tribunal and the Supreme Court. [22] Constable Gardiner does not criticise any party for the delay but asks that I have regard to its impact on him. Since the investigations commenced, Constable Gardiner has been ineligible for promotion to a higher pay point or to relieve in any position other than general duties. He has been unable to 8 Anderson v McGibbon TA No 4 of 2002; McPaul v McGibbon TA 4 of 1999; CJC v Scanlan & Macedo TA 4/98; Bull v Eicens OJ No 1 of 1996; Crawford v Beikoff & Laretive OJ No 6 of 1994; Crawford v Madden OJ No 5 of 1994; Abel v Aldrich Appeal No 8 of 1993; Vann v McGibbon TA 4 of 2001; CJC v Thomson MT 6/98; CJC v Harting MT2 of 1998; Crawford v Squassoni OJ No 5 of 1993; Simpson v Conder TA No 7 of 2005 9 CJC v Thomson MT 6/98 10 Misconduct Tribunals Act 1997 s 28(2) 11 Spencer v Baulch (2004) QCA 234; Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 6 -- 6 of 9 -- undertake courses that might advance him in the force. Effectively his career has been put on hold. [23] Given dismissal is accepted as the appropriate sanction for his conduct, I find that argument unpersuasive. An earlier conclusion, resulting in dismissal, would have terminated not stalled his career in the force. [24] A far more cogent consideration is Constable Gardiner’s conduct since the investigation commenced. The delay affords the opportunity to assess what the officer has learned from the salutary experience of these disciplinary proceedings. There are strong positive signs in Constable Gardiner’s favour. [25] Since October 2004, Constable Gardiner has remained in the service and has not been the subject of any complaint. A further three years is proposed as the operational period for the suspended sentence. If he commits an act of misconduct during that period, the dismissal will take immediate effect.12 On the other hand, if he does not and he complies with the conditions of the suspension, at the end of the operational period the punishment imposed is taken to have been satisfied.13 [26] By the end of the operational period, it will be almost nine years since the conduct occurred; a very considerable period during which he will have had to serve at risk of bearing severe consequences for his conduct. [27] It may be that Constable Gardiner’s transfer from the hot house environment of a City Beat station to a more sedate suburban setting has been a factor in his good conduct since. Dr Lynagh, a consulting psychologist who assessed and counselled Constable Gardiner in 2005, thought that move was vital for Constable Gardiner to de-stress and to review his policing practices. [28] Constable Gardiner was a relatively inexperienced officer at the time. It is regrettably true that police are sometimes abused and obstructed when lawfully exercising their powers. Undoubtedly this occurs more frequently for those officers working at a City Beat station. Constable Gardiner certainly faced unacceptable behaviour from some of the complainants. Observers confirmed, and some of the complainants admitted, that some of them were affected by alcohol, disrespectful, insulting or abusive or inciting others to “take on” the police. It must be acknowledged that sustained exposure to such conduct has a cumulative impact. [29] Removed from that environment, Constable Gardiner’s conduct has been without reproach. However, a police officer cannot expect to avoid, always, similar circumstances. Dr Lynagh’s report suggests there is a risk if Constable Gardiner faces such conditions in the future. [30] On Dr Lynagh’s assessment, Constable Gardiner is not an inherently aggressive or violent man: 12 Misconduct Tribunal Act 1997 s 28(4) 13Misconduct Tribunal Act 1997 s 28(5) 7 -- 7 of 9 -- ‘He seems somewhat immature, tender,’ thin–skinned’ and apt to personalise situations and become emotionally involved too readily. He appears an action–orientated person who is likely to respond to situations with a physical/action solution, but not one that is necessarily of a violent nature.’ [31] Dr Lynagh concluded Constable Gardiner’s conduct was the result of an emotionally immature response to personal abuse and threats in the face of their frequency and persistence over an extended period. [32] Arguably, it is a core requirement that police officers are equipped to deal with the sort of provocation they might expect from rowdy, argumentative, intoxicated, distressed, unreasonable, obnoxious, aggressive or violent people. [33] Dr Lynagh counselled Constable Gardiner to develop skills in being assertive whilst remaining emotionally detached, in control, and non- argumentative with clear and direct communication. He recommended Constable Gardiner’s skills were consolidated and monitored over time. If that recommendation has been acted on, I have not been made aware of it. [34] A sanction may be suspended on conditions.14 Given one objective of these proceedings is to protect the public, suspension of the sanction should be conditional upon Constable Gardiner obtaining further support required to enhance his skills. He is willing to abide by that condition, another indication that suspending dismissal is appropriate in his case. [35] The findings and sanction will be recorded in Constable Gardiner’s disciplinary history. [36] Each party to a hearing must bear their own costs unless otherwise ordered.15 I have not been asked to make any other order. Orders 1. Upon review, the decision of Assistant Commissioner Swindells in relation to: a) the finding that charges 1 and 2 were unsubstantiated; and b) the sanction imposed upon Constable Gardiner in relation to the third misconduct charge admitted; is set aside. 2. The misconduct charges as particularised in these reasons are substantiated. 3. Constable Gardiner is dismissed from the Queensland Police Service. 14 Misconduct Tribunals Act 1997 s 28(3) 15 Misconduct Tribunals Act 1997 s 35 8 -- 8 of 9 -- 4. His dismissal is suspended on the following conditions: a) The period of suspension is three years from the date of this order; b) During the suspension period, Constable Gardiner must attend Dr Lynagh for further assessment and undertake such counselling, treatment or training program he is reasonably directed to undertake by the prescribed officer of the Queensland Police Service, upon the recommendation of Dr Lynagh; c) If Constable Gardiner is found to have committed an act of misconduct or to have contravened a condition during the suspension period, the suspension is revoked and the decision to dismiss Constable Gardiner from the Queensland Police Service has immediate effect. 9 -- 9 of 9 --