Aldrich v Hardcastle & Irving [1996] QSC 64

.Jt6'State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND J CHAMBERS BYRNE J No 1364 of 1996 WILLIAM GRANT ALDRICH and PHILLIPS HARDCASTLE and MARK PATRICK IRVING BRISBANE .. DATE 27/03/96 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date I/- I 4L I c7 0 Applicant First Respondent Second Respondent 4th Floor, The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 9 -- 270396 T6/TW M/T 562/96 (B..yrne J) HIS HONOUR: The applicant seeks judicial review of the decision of the Misconduct Tribunal exercising an appellate function under the Criminal Justice Act 1989. The Tribunal allowed an.appeal against the determination of the applicant in disciplinary proceedings involving a police officer. The Tribunal's decision is said to have involved an error of law in finding that the sanction imposed on the officer "was punitive in nature". On 26 July 1995 the applicant determined that the second respondent, a police officer stationed at Townsville, had been guilty of misconduct (as that word is defined in section 1 .4 of the Police Service Administration Act 1990) on three occasions. These findings are not in contest. On 23 June 1994 the officer accessed information stored on the police service computer for other than official purposes. The information concerned a woman, and included her address. 'I'he second incident occurred later that day when the officer gave the address to a female "ex-constable". The third instance of improper conduct occurred on 19 October 1994 when the officer falsely denied to a senior sergeant investigation his misconduct that he had supplied the information to the "ex- constable". Each incident was the subject of a separate charge. Having found them proved, the applicant decided, as he wrote to the officer setting out his conclusions, "after consideration of all the material, that due to your conduct it is in the interests of the discipline of the Queensland Police Service, the community and the efficient and proper discharge of ... 2 JUDGMENT 10 30 40 50 60 -- 2 of 9 -- 210396 T6/HMH M/T 562/96 (Byrne J) responsibilities under the Police Service Act 1990" that the officer suffer "sanctions" for one year, namely (i) for accessing the computer, a reduction in salary from constable pay .5 to constable pay .2 and (ii) for each of the two others, that he be dismissed from the police service, but that "the imposition of this sanction be suspended" for one year, on condition that the officer be of good behaviour. Such consequences were among the "disciplinary sanctions" the applicant was entitled to impose pursuant to Regulation 10 of the Police Service (Discipline) Regulations 1990. Before imposing the "sanctions", the applicant explained to the officer and the union official representing him that he proposed to take into account certain prior incidents. These included four informal "corrections by way of guidance" given to the officer since October 1993 and an earlier disciplinary hearing in which a Misconduct Tribunal found that the officer had fabricated a confession. After that, the applicant received submissions on the officer's behalf about the consequences that should attend the findings of misconduct. The appeal to the Misconduct Tribunal which has resulted in this application for review complained only of the sanction imposed in respect of the first of the charges. This reduction in status, and therefore pay, was said to be manifestly excessive. The Tribunal expressed the opinion that the applicant had been "clearly correct" in taking into account the officer's "history", to which I have referred. The Tribunal also appears to have agreed with the applicant's conclusion that the consequences of the officer's actions 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 9 -- 270396 T6/HMH M/T 562/96 (Byrne J) "although not excessive did ... have potential to damage the reputation and credibility of the Queensland Police Service." The Tribunal's published reasons continued: "Taking into account the respondent's submission that the three charge (sic) are distinct and separate, I am nevertheless of the view that the imposition of the sanction imposed by the Deputy Commissioner with respect to charge 1 would have the affect (sic) of imposing a penalty on the appellant. Further by the imposition of a sanction of reducing the salary of the appellant (sic) ... would in view of the decision of the respondent to dismiss the appellant even though suspending such dismissal for 12 months would be (sic) manifestly excessive considering that the respondent had already imposed the second most serious sanction available. In my view this is one course of conduct." The Tribunal allowed the appeal and substituted for the sanction imposed on the first charge that imposed for the second and third. It has been submitted that the Tribunal's reasons appear to disclose two grounds on which the appeal was allowed. 10 20 30 First, that the sanction was manifestly excessive having 40 regard to the suspended dismissal ordered for the other, more serious, but related, misconduct. Secondly, that the "manifestly excessive" sanction sustained an inference that the reduction ordered had been imposed to punish rather than for such a proper purpose as "the maintenance of public confidence in the police force, of the self esteem of police officers and of efficiency": Police Service Board v. Morris & Martin (1985) 156 CLR 397, 412; see also R v. The Commissioner of Police, ex parte Ross [1992] 1 QdR 289, 292; 4 JUDGMENT 50 60 -- 4 of 9 -- 27D396 T6/HMH M/T 562/96 (By..rne J) Re Bowen, No 651 of 1994, 29 September, 1995, Demack J, unrep. , pp 2-3. The Tribunal erred if it considered that stigmatising the sanction as a "penalty" meant that the consequence for which it provided was necessarily unlawful. A permissible sanction may involve a significant deprivation to the person disciplined. Grave consequences do not inevitably bespeak an inappropriate "penalty" rather than a proper sanction. If, however, as Mr Macsporran for the second respondent contended the Tribunal's reasons should be understood, the Tribunal was of opinion that the excessiveness of the disciplinary sanction of itself warranted the conclusion that the applicant had been motivated by a desire to punish rather than protect the public, (cf Pratt v. British Medical Association [1919] 1 KB 244, 278), the evidence did not sustain such an inference. The applicant's statements to which I have referred are only consistent with his having clearly appreciated the objects intended to be served by the imposition of disciplinary sanctions on serving police officers. And so any conclusion that an ulterior purpose or extraneous consideration influenced his decision necessarily rests on inferences to be derived exclusively from a conclusion that, in all the circumstances, the sanction was manifestly excessive. Even if the sanction could reasonably be regarded as manifestly excessive - as to which I express no opinion - here it could not appropriately have been concluded that the sanction was such as to bespeak the influence of some such 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 9 -- 210396 T6/HMH M/T 562/96 (Byrne J) ulterior object as a desire to inflict punishment. In view of the misconduct in question and the circumstance that the officer's prior, recent misconduct in fabricating a confession scarcely presented a case for leniency, the sanction could not be characterised as so extreme as to show, contrary to his stated reasons, that the applicant had been influenced by inappropriate considerations. I cannot accept Mr Macsporran's submission that, on the whole of the evidence, it was open to the Tribunal to conclude that any manifestly excessive sanction - if the sanction was such meant that the applicant was inappropriately motivated by a desire to punish rather than moved by those considerations properly to be taken into account in deciding upon a disciplinary sanction. The decision of the Tribunal should be set aside and the matter remitted for consideration by the Tribunal differently constituted. I will hear submissions as to the appropriate form of order. HIS HONOUR: I consider that the costs ought to follow the event. There will therefore be an order that the second respondent pay the applicant's costs of and incidental to the application including reserved costs, if any, to be taxed. 6 JUDGMENT 10 30 40 50 60 -- 6 of 9 -- 210396 T7/RK M/T 562/96 (Byrne J) Can I leave it to you both then to prepare an appropriate form of order, initial it and arrange for it to be delivered to my associate? MR MACSPORRAN: Your Honour, there's just one further matter. Your Honour indicated to remit the matter to a differently constituted tribunal. I don't know if Your Honour has power to do that. Under section 30 sub (1) paragraph (b) provides for: "an order referring the matter to which the decision relates to the person who made the decision for further consideration are subject to such directions ... et cetera ... as the Court determines". There doesn't seem to be powers to remit it to a differently constituted tribunal. MS ATKINSON: Your Honour, that relates to the 10 decision-maker. The decision-maker is the tribunal, it's not 2o the particular person who constitutes the tribunal, it's the tribunal. So you remit it to the tribunal not to a specific person and of course you have the power to do that, to say that should be differently constituted. Because it's the tribunal that you're remitting it to not Mr Hardcastle. MR MACSPORRAN: Just the section refers to "the person" in section 30 sub (1) sub (b), the person who made the decision. That would tend to suggest the person rather than the body unless there's a definition of - I suppose the analogy is when 30 you - if you're successful in viewing a Magistrates order it's remitted to the Magistrate to further consider according to law and it would have to go back to the same Magistrate. HIS HONOUR: Frequently it's desirable that the matter go before another. You see in a case like this, the issue that will be fall to be determined, is whether the penalty was manifestly excessive. That issue has already been decided in favour of your client by Mr Hardcastle. If it goes back before him for determination, will not your opponents be there 40 alleging the appearance of bias and suggesting that therefore the Tribunal ought to be constituted by someone who has not predetermined the question that falls to be decided? MR MACSPORRAN: I take Your Honour's point although section 30 seems to contemplate going back before the person with such directions or as the Court determines, in this case determined according to proper principles. I'm just looking at the section itself. As I say it doesn't say "tribunal" it just refers to "person" and there doesn't seem to be any so contemplation that Your Honour can refer it to a differently constituted tribunal but I don't know one of way of achieving the same result. HIS HONOUR: Is that the limitation imposed by the Judicial Review Act? The Judicial Review Act presumably is the source of the powers conferred upon the Court in these proceedings. Is there some limitation inherent in the Judicial Review Act? 7 JUDGMENT 60 -- 7 of 9 -- 270396 T7/RK M/T 562/96 (Byrne J) MR MACSPORRAN: No, other than the provisions of section 30 which refer to powers of the Court in relation to applications for order of review which this is and then sets out that the----- HIS HONOUR: Is this an application governed by section 30, Ms Atkinson? MS ATKINSON: Yes. Your Honour, that's the source of the power to make orders but the Criminal Justices Act talks about what the misconduct tribunal is. Section 41 sets up misconduct tribunals and then section 45 says they're constituted of one member of a panel. A person under the Acts Interpretation Act in the State of Queensland is a person can be an individual, a body, corporate or unincorporate or a body politic so the tribunal is the person. Often in an administrative decision the decision-maker may always have to be the same person. HIS HONOUR: Sometimes that unfortunately is necessary and sometimes it----- MS ATKINSON: Yes, it might be a minister or a director- general or a person----- HIS HONOUR: Exactly. And sometimes it doesn't matter that a person's determination has been set aside because the nature of the defect may be such as to suggest that there's no reason to suppose that the individual in question will have any 10 difficulty in dealing with the matter appropriately on its 30 merits. The difficulty about this case is the one I've adverted to. MS ATKINSON: That he's already decided that, precisely. So it's appropriate to advert it to the tribunal with Your Honour making that order. HIS HONOUR: Well, Mr Macsporran, do you wish to suggest that if I properly can send it to some other member of the tribunal there is some reason why I should not do so? 40 MR MACSPORRAN: No, Your Honour, no. I'm simply drawing your attention to the fact that on it's face section 30 would seem to prevent that course being adopted. HIS HONOUR: The Court may make all or any of the following orders. MR MACSPORRAN: Yes. It's just that Couch & Lang seems to limit Your Honour's power in respect of the application to those matters set out in the section itself. HIS HONOUR: Well what - is it section 108 of the Supreme Court of Queensland. MR MACSPORRAN: It may be covered in this way, when the section 30 sub (1) sub(b) says: 8 JUDGMENT 50 60 -- 8 of 9 -- 270396 T7/RK M/T 562/96 (Byrne J) "the matter can be referred back to the person who made the decision for further consideration subject to such directions including ... " and then it sets out seven [indistinct] etcetera. A direction Your Honour may be able to make was that it would be desirable, indeed essential, that the person constituting the tribunal do not themselves consider the matter but the tribunal be reconstituted with another member. HIS HONOUR: Well it look as though than restricted. renumbered. They section 30 is expressed in terms which make as it's intended to be facultated rather The section I was thinking of has been always are these days. It is section 119: "The Court may make an order, give a direction or leave or do anything else that it's authorised to do on such terms and conditions, if any, as the Court considers appropriate." Well I must say even without recourse to that section it would be a surprising consequence if legislation intended to provide the remedial consequences for which this provides to construe it as not permitting the course, in this case, of allowing the matter to be dealt with by another member of the tribunal. The person who made the decision why is that Mr Hardcastle rather than the tribunal? MR MACSPORRAN: [Indistinct] refers to person rather than the 10 20 tribunal. He's the person that constituted the tribunal who 30 made the decision in fact and that's----- HIS HONOUR: But "person" in section 30 must be intended to be understood consistently with the Acts Interpretation Act. There's nothing in it to indicate to the contrary and "person" will then include corporation won't it? MS ATKINSON: Your Honour, actually I should say that I have just looked in section 3 of the definitions and it says that that person includes an unincorporated body. 40 HIS HONOUR: An unincorporated body? MS ATKINSON: Yes. Which the Misconduct----- HIS HONOUR: Which the Misconduct Tribunal is. Well, that seems to put it really beyond question. So I think that the direction to remit the matters to the Tribunal should be accompanied by a direction that the Tribunal be differently constituted. ~ Thank you for raising the matter then, Mr Macsporran. I will simply note in my book order as per draft to be provided. And my thanks to you for the effort that went into the preparation of the outlines and the economy with which the matter was argued. 9 JUDGMENT 60 -- 9 of 9 --