Bowen, Re [1995] QSC 284 [1996] 2 Qd R 8

, 261/-4&'. 5Lff5j 2_&? ~~. State Reporting Bureau / I. ( 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 CIVIL JURISDICTION DEMACK J No 651 of 199/J REVISED COPIES ISSUED State Reporting Bureau Date Jo I ( O I IN THE MATTER OF THE CRIMINAL JUSTICE ACT 1989 and IN THE MATTER OF AN APPEAL BY KEITH THOMAS BOWEN AGAINST A DECISION OF MISCONDUCT TRIBUNAL EXERCISING ORIGINAL JURISDICTION BRISBANE .. DATE 05/10/95 JUDGMENT 4th Floor. The Law Courts, Geq_r(!~ $treet, Brisbane. O. 4000 Teleohone: (07) 127 4360. Far,.imilP'. fn7l 227 .;.;u -- 1 of 11 -- '. 051095 dbk (Demack J) HIS HONOUR: In this application, I produce my reasons to writing which I now publish. The appeal is allowed to the extent that the following words are expunged from the judgment of the misconduct tribunal and from the appellant's service records: "I would further i.ndicate that it is my opinion - and I make this part of my judgment - that Mr Bowen ought not be to promoted to commissioned rank in the future although this is a matter not for me but for the police authorities." Otherwise the appeal is dismissed. HIS HONOUR: There are no other orders sought? MR FEENEY: Would Your Honour hear argument on costs? HIS HONOUR: Mr Feeney has submitted that because it was necessary to bring the application to have expunged from the judgment of the tribunal the words which I have referred to, and because the appellant has succeeded on that, the appellant should get his costs oE the appeal. M/s Boss points to the obvious fact that there was another significant issue which was argued, the first point having been conceded. rt seems to me in the circumstances that there was a need for the appellant to have those extraneous words dealt ·.-1i th. They constituted a very significant JUDGMENT 2 ,_l • V 10 20 r~\\ ' (•, r··;' r··\ 30 40 ) 50 60 -- 2 of 11 -- ( ) ( i ( Q51095 dbk (Demack J) additional observation which could have further prejudiced his future. In the circumstances, I will make no order as to costs. JUDGMENT 3 10 20 30 40 50 60 -- 3 of 11 -- (\ Sc IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 651 of 1994 Before the Hon. Justice Demack [Criminal Justice Act 1989] IN THE MA TIER of the Criminal Justice Act, 1989 - and - IN THE MA TIER of an appeal by KEITH THOMAS BOWEN against a decision of a Misconduct Tribunal exercising original jurisdiction JUDGMENT - DEMACK J. Judgment delivered 5/10/1995 CATCHWORDS: Counsel: Solicitors: Hearing date: Police service - official misconduct - proceedings before Misconduct Tribunal - purpose of sanctions imposed - protection of public and of police service - Criminal Justice Act 1989, ss.48, 55(1), Police Service Administration Act 1990, s.2.3. P.J. Feeney for appellant B.C. Boss for respondent Gilshenan & Luton for appellant K.M. O'Shea Crown Solicitor for respondent 29 September 1995. -- 4 of 11 -- IN 11IE SUPREME COURT OF QUEENSLAND Brisbane No. 651 of 1994 Before the Hon. Justice Demack [Criminal Justice Act 1989] IN 11IE MATTER of the Criminal Justice Act, 1989 - and - IN 11IE MATTER of an appeal by KEITH 11IOMAS BOWEN against a decision of a Misconduct Tribunal exercising original jurisdiction JUDGMENT - DEMACK J. Judgment Delivered 5 October 1995 This is an appeal instituted under s.48 of the Criminal Justice A et 1989 from a decision of a Misconduct Tribunal whereby the appellant was found guilty of official misconduct and it was ordered that he be reduced to the rank of sergeant at the first pay point. In the course of his reasons for his decision, Mr F.J. Gaffy Q.C., who constituted the Misconduct Tribunal, said:- "I would further indicate that it is my opinion - and I make this part of my judgment - that Mr Bowen ought not to be promoted to commissioned rank in the future, although this is a matter not for me but for the police authorities." It was conceded by Ms Boss, who appeared for the Commissioner of the Police Service on the hearing of the appeal, that this observation was beyond the powers of the Tribunal. Section 55(1) of the Criminal Justice Act gives the Tribunal the power to order one or more of five specified sanctions. Placing a restriction upon future promotion is not an authorised sanction. Consequently, that observation should be struck from the judgment and should also be struck from the records kept of the appellant's record of police service. -- 5 of 11 -- l ' ( ' 2 Apart from that aspect of the decision, the appeal 1s concerned with the manifest excessiveness of penalty. One of the submissions made on behalf of the appellant was that the Tribunal misdirected itself in over emphasising the need for "punishment". It is a pity that neither counsel referred the Tribunal to any relevant authorities in the course of submissions. Counsel who argued the appeal were not the counsel before the Tribunal. The Act itself is not particularly helpful in respect of the approach the Tribunal should take. In s.46(1 )(b ), there is power to order "disciplinary punishment". Section 48(2)(a)(iii) speaks of "manifest excessiveness of penalty". Section 55(1) speaks of "sanctions". Consequently, it does help to focus the mind on the relevant considerations if reference is made to decided cases. Disciplinary proceedings within the police service are analogous to disciplinary proceedings taken against a barrister. In Clyne v. The New South Wales Bar Association (1960) 104 C.L.R. 186, which concerned the striking of a barrister from the rolls, the High Court said, at p.201:- "Although it is sometimes referred to as 'the penalty of disbarment', it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege." This principle was re-iterated in The New South Wales Bar Association v. Evatt (1968) 117 C.L.R. 177, at 183. In Hardcastle v. Commissioner of Police (I 984) 53 A.L.R. 593, the Full Court of the Federal Court considered the Australian Federal Police (Discipline) Regulations and said, at 597:- "The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish (see Harvey v. Law Society of New South Wales (1975) 49 ALJR 362 per Barwich CJ at 364; 7 ALR 227) or to exact retribution (see Ex parte A ttomey-General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 per Fox, Blackburn and Woodward JJ at 244)." -- 6 of 11 -- / ( I, 3 Finally, reference can probably be made to the following passage in the judgment of Brennan J (as he then was) in Police Service v. Morris (1985) 156 C.L.R. 397, at 411:- "The Victoria Police, like other Police Forces in Australian, is a force governed by legislation which Crockett J. in the Full Court appropriately described in these terms:- 'The legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective and efficient organisation in which the members are to perform their duties in conformity with a code so as to afford protection to the community and allow the disciplining of members who breach that code.' The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency." There is nothing in the Criminal Justice A et, Part 2, Divisions 6 and 7 which makes any of these statements irrelevant. From them it can be seen that the purpose of proceedings taken (_ by a Misconduct Tribunal in respect of official misconduct by a member of the police service is:- 1. To protect the public; 2. To protect the police service by:- (a) maintaining public confidence in the service; (b) maintaining legislative confidence in the service so that necessary powers are not curtailed because they are being abused; (c) maintaining confidence within the service that members are performing their duties with integrity. The scope of those duties is found in s.2.3 of the Police Service Administration Act 1990 which reads:- -- 7 of 11 -- (\ { I 1 I ' " 4 "2.3 The functions of the Police Service are - (a) the preservation of peace and good order - (i) in all areas of the State; and (ii) in all areas outside the State where the laws of the State may lawfully be applied, when occasion demands; (b) the protection of all communities in the State and all members thereof - (i) from unlawful disruption of peace and good order that results, or is likely to result, from - (A) actions of criminal offenders; (B) actions or omissions of other persons; (ii) from commission of offences against the law generally; (c) the prevention of crime; (d) the detention of offenders and bringing of offenders to justice; (e) the upholding of the law generally; (f) the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of- (i) the provisions of the Criminal Code; (ii) the provisions of all other Acts or laws for the time being committed to the responsibility of the Service; (iii) the powers, duties and discretions prescribed for officers by any Act; (g) the provisions of such services, and the rendering of such assistance, in situations of emergency or otherwise, as are required of officers by lawful authority or the reasonable expectations of the community, or as are reasonably sought of officers by members of the community." The appellant was charged with three offences of official misconduct which can be summarised:- (a) on 4 May 1993, disclosing confidential information to a member of the police , service under his command that there was a complaint that the member had misappropriated a tool box from a crime scene; -- 8 of 11 -- 5 (b) on 3 June 1993, falsely denying to an officer of the Criminal Justice Commission that he had made the disclosure on 4 May 1993; (c) on 10 August 1993, furnishing a signed witness statement, duly endorsed in accordance with the Oaths A et, to the effect that he had not made the disclosure on 3 June 1993. The appellant did not contest the charges and neither did he admit them. Mr Gaffy was satisfied on the proper standard (Briginshaw v. Briginshaw (1938) 60 C.L.R. 366) that the appellant had committed the three acts, and that each of them amounted to official misconduct. He then considered what sanction should be imposed. The appellant had a most impressive record in the police service. He held the rank of Inspector, and 52 references, mainly from other members of the service, spoke of the high regard in which he was held. The explanation for his conduct on 4 May 1993 was said to be that he became very angry when told that one of his subordinates was accused of taking the tool box, because he felt he had been let down. He claimed he phoned the subordinate and abused him although he had been told ( by his superior that the information was confidential. This explanation was accepted by Mr Gaffy Q.C. It was argued that the disclosure did not prejudice the investigation because when the subordinate was interviewed he referred to the phone call from the appellant. Further it was argued that the false statement on 3 June 1993 and the false document of 10 August 1993 did not hinder the investigation or cause any public harm. I have not attempted to set out these arguments in support of the appeal in great detail because I am satisfied that Mr Gaffy fully appreciated the relevant issues and imposed a proper sanction. -- 9 of 11 -- 6 Clearly, the three matters had to be viewed together because they have a cumulative effect. The significance of the disclosure lay, not only in what in fact happened, but also in what may have happened. The phone call opened the possibilities that the tool box, worth $18,000, may have been disposed of to destroy evidence and that the subordinate, being forewarned, may have frustrated the investigation. The first possibility involved a disregard of the rights of the tool box owner and did not protect that person from the unlawful disruption of good order that results from the actions of other persons. The public was not protected. Neither was the police service ' ( protected because the phone call was a breach of a confidence that prejudiced the detection of an offender. When the appellant lied on 3 June 1993, he did something which erodes public confidence in the police service, and which also affects the trust other members of the police service have in each other. He lied to hide his own misdoing. When he was false to his oath on 10 August 1993, he put himself in the situation where his testimony was forever open to challenge. This, in a significant sense, denied the public the use of his services in the active detection of crime. \ It also erodes public confidence and adds weight to the arguments of those who seek to curtail the powers of the police service. It may destroy the trust other members of the police service should have in him. It appears from the detailed reasons which Mr Gaffy Q.C. gave that he seriously considered the question of dismissing the appellant from the police service. Because of his excellent record and because of the references, he reduced the appellant in rank. It was argued that this involved a very significant financial penalty, so that the appellant's thirty years of meritorious service was not adequately recognised. -- 10 of 11 -- ( 7 I am uriable to accept that proposition. It seems to me that the appellant's thirty years of meritorious service have kept him in the police service. Without those years of service, his three acts of official misconduct could have justified his dismissal. The appeal is allowed to the extent that the following words are expunged from the judgment of the Misconduct Tribunal and from the appellant's service records:- "! would further indicate that it is my opinion - and I make this part of my judgment - that Mr Bowen ought not to be promoted to commissioned rank in the future, although this is a matter not for me but for the police authorities." Otherwise the appeal is dismissed. -- 11 of 11 --