Crime & Misconduct Commission v Flegg and Anor [2012] QCAT 74

CITATION: Crime & Misconduct Commission v Flegg and Anor [2012] QCAT 74 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Warren Flegg (First Respondent) Assistant Commissioner Clement David O’Regan (Second Respondent) APPLICATION NUMBER: OCR055-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 12 December 2011 HEARD AT: Brisbane DECISION OF: Mr Richard Oliver, Senior Member DELIVERED ON: 24 February 2012 DELIVERED AT: Brisbane ORDERS MADE: The decision of Assistant Commissioner O’Regan is confirmed. CATCHWORDS: Police Discipline– whether sanction imposed sufficiently reflected the applicant’s misconduct – where significant mitigating factors – where significant delay in concluding disciplinary proceeding APPEARANCES and REPRESENTATION (if any): APPLICANT: Crime and Misconduct Commission represented by Mr Mac Giolla Ri of counsel instructed by Ms Woods, Official Solicitor, Crime and Misconduct Commission RESPONDENT: Warren Flegg represented by Mr P Smith of counsel instructed by Gilshenan and Luton, Solicitors Assistant Commissioner Clement David O’Regan represtened by Mr King of counsel -- 1 of 12 -- 2 instructed by the Queensland Police Service Solicitor REASONS FOR DECISION Introduction [1] A little after midday on 14 October 2005, the vessel Malu Sara, owned by Department of Immigration and Multicultural and Indigenous Affairs, set off from Saibai Island sailing to Badu Island with five people on board. At about 4.00pm the skipper of the vessel advised Mr Stephen, of DIMIA, that they were lost in poor visibility. Mr Stephen notified the Queensland Police Service of the situation at 7:15pm that evening. [2] At about 7:40pm Sgt Flegg was recalled to duty, having signed off earlier that afternoon, and assumed control of the search and rescue of the vessel Malu Sara as Search and Rescue Mission Coordinator. He continued as search and rescue coordinator until the following morning. The Malu Sara was never found and all those on board perished at sea. [3] Sgt Flegg’s conduct as search and rescue coordinator was investigated by the QPS. Ultimately he was charged with improper conduct in that he failed to take appropriate and required action in his role as Search and Rescue Mission Coordinator for the Malu Sara. [4] At a disciplinary hearing conducted on 9 March 2011 Sgt Flegg accepted that the charge against him was substantiated. Assistant Commissioner O’Regan imposed a sanction that Sgt Flegg be demoted from rank of Sergeant 3.5 to rank of Senior Constable 2.9 for a period of two years from 31 March 2011 to 31 March 2013. It was also ordered that he be eligible to apply for the position of sergeant upon being of good conduct and completing two Performance Planning and Appraisal periods to at least the “met” level. The penalty was suspended for a period of two years on the condition that Sgt Flegg undertook certain competency courses. [5] On 23 March 2011 the Crime and Misconduct Commission filed in the Tribunal an application to review a decision of the Assistant Commissioner on the grounds that the penalty imposed was inadequate because of the seriousness of Sgt Flegg’s conduct. [6] As Sgt Flegg has accepted the charge against him was substantiated, the only issue before the Tribunal is the appropriate sanction to be imposed in as a result of his misconduct relating to the circumstances of the events that occurred between 14 and 15 October 2005. In considering the appropriate sanction it is also necessary to consider what matters should be taken into account in mitigating the level of sanction. -- 2 of 12 -- 3 [7] The function of the Tribunal in a review proceeding is to produce the correct and preferable decision. It does so by hearing and deciding the review application by way of a fresh hearing on the merits.1 [8] In undertaking this task the Tribunal must not only have regard to the purpose of disciplinary proceedings, but also give weight to the Assistant Commissioner’s views as to the appropriate disciplinary sanction.2 [9] One other matter needs to be addressed here. The Coroner made some unfavourable observations concerning the conduct of Sgt Flegg. The matter of reception of a Coroner's comments is covered by section 51(2) of the Coroners Act 2003. It states: The record of the Coroners findings and comments is not evidence in any court or Tribunal of any fact asserted in the record. [10] Of course the Tribunal can have regard to the evidence received by the Coroner but the Coroner’s findings and comments are not evidence whether favourable or unfavourable. This point was considered in CMC v Barnett & Eaton (No 1) [2011] QCAT 161 where a similar conclusion was reached. [11] The Assistant Commissioner relied on the following particulars of improper conduct in that Sgt Flegg failed to: (a) Keep an accurate and contemporaneous log of the events, actions, conversations and decisions concerning your role as required by section 17.5.3 of the Queensland Police Service Operational Procedures Manual and section 1.3.11 of the National Search and Rescue Manual, including:  Recording advice from Mr. Jerry Stephen that the vessel was taking water and sinking at 0221hrs and 0228hrs on 15 October 2005; and  Recording that you had advised the Cairns Communication Coordinator that the vessel was taking water and sinking at 0232hrs on 15 October 2005. (b) Take appropriate action as a result of information known at that time including:  Considering the degree of danger for the people aboard the Malu Sara between 1930hrs on 14 October 2005 and 0240hrs on 15 October 2005;  Utilising assets to assist in the search, particularly available aircraft;  Seeking greater assistance from Australian Maritime Safety Authority Rescue Coordination Centre particularly after receiving advice from Mr. Jerry Stephen at 0221 hrs and 0228hrs on 15 October 2005 that the vessel was sinking;  Dispatching water borne assets to provide assistance prior to the activation of the Thursday Island Volunteer Marine Rescue vessel at approximately 0230hrs on 15 October 2005; and 1 QCAT Act, s 20. 2 Aldrich v Ross [2001] 2 Qd R 235 at [41]-[43]. -- 3 of 12 -- 4  Gaining further information about the Malu Sara and its sea keeping and performance capability for the purposes of providing further assistance and taking appropriate action. (c) Provide full and appropriate advice to the Australian Maritime Safety Authority Rescue Coordination Centre, including:  Failing to advise during your communications at 0226hrs on 15 October 2005 that the vessel had reported it was sinking; and  Failing to advise of this relevant information until 0600hrs on 15 October 2005. Position of the CMC [12] The CMC contend that Sgt Flegg’s conduct, in particular between the time he came back on duty until the following morning when he declared the vessel “in distress” at 10.55am, was such a departure from what could reasonably be expected of an officer with his experience and rank, that he should be dismissed from the QPS and that his dismissal should not be suspended. It makes no alternate submission on penalty. [13] In particular, it asks the Tribunal to draw inferences that Sgt Flegg was indolent in attending to his duties which may have contributed to the fate of the Malu Sara or alternatively, given the occupants a better chance of survival. It contends that the recorded calls reveal he did not accept the seriousness of the situation the Malu Sara was in, in nor the statements made to him by Jerry Stephen as to the condition of the vessel at a critical time. It is suggested that Sgt Flegg sought to shift responsibility to Mr Jerry Stephen for not telling him that the vessel was sinking which reflected badly on his character. His evidence both to his superiors and to the Coroner lacked credibility and this also reflected on his character and his ability to perform the functions of a police officer. [14] The CMC it its written submissions pointed to specific evidence of Sgt Flegg’s conduct in support of its contentions that his conduct during the course of the search and rescue warranted a more severe sanction. The timeline of relevant misconduct [15] The CMC’s specific criticisms begin when Sgt Flegg commenced duty that evening. After speaking with Mr Stephen and Australian Search and Rescue he took no further proactive steps to gain further information about the condition of the Malu Sara. He was told that the next satellite pass would be around 9:30pm and he was content to wait to try and ascertain the position of the vessel from the emergency location beacon (EPIRB). He did not, during this time, obtain further information about the vessel, did not conduct a risk assessment, check weather patterns, or prepare contingency plans. [16] By 9:30pm Sgt Flegg had spoken to the skipper of the vessel and his log records that he was told water was coming into the vessel while at anchor but not when underway. A corresponding log entry from Mr Stephen -- 4 of 12 -- 5 confirms that water was in the vessel but was being pumped with the bilge pump. The critical feature about Sgt Flegg’s log entry is that he manufactured this log from Mr Stephens log the following day. It is not contested that during the evening Sgt Flegg did not record in the log all of the discussions he had with Mr Stephen or with the Malu Sara, but used Mr Stephen’s log to assist in the completion of his own log the following day. Sgt Flegg accepted that his record taking on the evening was poor and one of the reasons why he accepted that the charge against him was substantiated. [17] The log at 9:50pm also downplays the seriousness of the circumstances the vessel found itself in. There is a reference to “a little bit of water” coming into the vessel but there was no basis for this statement. Sgt Flegg could not explain why there were continued attempts to contact the Malu Sara if the only issue was “a little bit of water” in the vessel. If true this should not have been of great concern. [18] There is a further instance of falsification of the log record. At 11:15pm Sgt Flegg records he was in contact with the Malu Sara. However, there is no telephone record to support this entry, nor any corresponding handwritten log entry. All of the entries made that evening were handwritten and typed the following day. The entry “no mention of water on deck” suggests, it is contended, that in circumstances where there is no handwritten note of the conversation on the evening of the 14th, Sgt Flegg was making up this entry to suit his own purposes subsequent to the tragedy. [19] By 11:50pm, Sgt Flegg did speak with the Malu Sara although it was a very short conversation. [20] The next relevant log is at 1:37am when Sgt Flegg again spoke to the Malu Sara. Here, it is recorded that the vessel was out of oil and it was at anchor. Because it was at anchor, there was every reason to believe that Sgt Flegg ought to have known that it would be taking on water because earlier information indicated that it was not taking on water when under way. The CMC is critical of Sgt Flegg’s attitude at this point, because the search and rescue had been ongoing now for some eight hours, the vessel was not making any headway, its location had not been confirmed and Sgt Flegg knew or ought to have known that it was taking on water. To then not activate the available search and rescue assets was a serious lack of judgment on his part, and to wait to further confirm the situation before calling for assistance, compounded Sgt Flegg’s misconduct. [21] The situation deteriorated further by 2:23am because at this point, Sgt Flegg was telling AusSAR that the vessel had run low on oil as opposed to the reality that it had run out of oil. The vessel was not moving nor did its skipper want to move it. Contrasted with Mr Stephen’s log at the same time, the general vicinity of the vessel being at the “back of Mabuiag,” it was still taking on water and was sinking. In a conversation with Sgt Flegg, Mr Stephen advised him of the situation at which time Sgt Flegg -- 5 of 12 -- 6 called AusSAR to obtain helicopter assistance but still did not tell AusSAR that the vessel was sinking. He confined his discussion to the vessel taking on a bit of water that they were bailing it out. Obviously at this point the situation for the occupants of the vessel was desperate and Sgt Flegg should have known that. [22] In contrast to what his written log shows, Sgt Flegg said, in his own report to the Coroner, he advised SARMC that the Malu Sara was taking on water and sinking. There is some confusion at this time, because Sgt Flegg did not accept when being interviewed by the Ethical Standards Committee that Mr Stephen told him that the vessel was sinking. But in his log of 2:32am he told Police Communications in Cairns that the vessel was sinking. This contradiction does cast a doubt on Sgt Flegg’s credibility but, having said that, by this stage Sgt Flegg had been on duty for about 18 hours. It is apparent that by 2:30am Sgt Flegg was aware of the seriousness of the situation the Malu Sara was in and sought to task a helicopter to locate the EPIRB and then dispatched the immigration vessel on Badu, the Pedro Stephen to try and intercept the vessel once the EPIRB was located. The CMC is critical because Sgt Flegg had it within his own authority to dispatch a helicopter at anytime through the evening but he left it far too late. [23] Also, part of the criticism against Sgt Flegg is that he proceeded on the assumption that a Bell 412 helicopter was unavailable that evening. The assumption was incorrect, and he made no effort that evening to determine whether in fact the Bell 412 was available or whether it could operate in the current weather conditions. It is suggested that Sgt Flegg was much too casual in his approach to the use of the helicopter given the serious circumstances prevailing at the time. [24] Despite dispatching the Pedro Stephen at 2:30pm, Sgt Flegg failed to inform it that there was urgency to their mission because the Malu Sara was sinking. Sgt Flegg accepted that by the time the Pedro Stephen reached the approximate location of the Malu Sara the occupants might well be in the water and he also believed, I suppose reasonably, that the vessel would not sink completely and they would have life jackets. Because of these circumstances, it is suggested that dispatching the Pedro Stephen was an inappropriate response given the weather conditions, the fact that the vessel was sinking and the occupants would likely be in the water. The better option would have been to send a helicopter out to locate them and if possible make a rescue, or monitor the situation. [25] Even by 3:30am in his conversations with AusSAR he did not relate the seriousness of the situation and again tried to play down both the urgency and seriousness of the circumstances in which the Malu Sara found itself. He did not say it was sinking he simply referred to the fact that it was taking on some water. A throw away line that the occupants were “sick of being out there and want to come home”, was entirely inappropriate in the circumstances. The CMC rely on this statement to establish that it is -- 6 of 12 -- 7 deeply offensive to suggest that what had transpired that evening was simply a motivation to activate search and rescue to help the vessel when it was not in a state of distress at all. This is obviously correct if that was the purpose of the statement but, I can not accept that given the events of that evening that Sgt Flegg seriously thought that this was simply a ploy by the skipper of the Malu Sara to get home. Irrespective of what transpired in the log notes or in conversations by 2:30am Sgt Flegg knew full well that this was a serious search and rescue mission. [26] A large body of evidence has been collated in the investigation into this tragic incident which evidence was put before the Coroner. The Coroner made adverse findings about Sgt Flegg, and those comments, together with the body of evidence resulted in the disciplinary proceeding against him for which he has pleaded guilty. [27] As required by Aldrich I must give weight to the Assistant Commissioner’s reasons for imposing the sanction he did. The criticisms made by the CMC, highlighted above, were taken into account by the Assistant Commissioner. Although this Tribunal is not bound by the findings and recommendations of the Coroner, the Assistant Commissioner clearly took those matters into account which were very critical of Sgt Flegg’s performance that evening. It was established to the satisfaction of the Coroner, and when reviewing the evidence highlighted in the submissions from the CMC, that Sgt Flegg did fail to take decisive and constructive action when he had sufficient information to indicate to a reasonable person that the Malu Sara was in distress and in need of direct assistance.3 The Assistant Commissioner quoted large segments of the Coroner’s report and, as he was entitled to do, relied on those findings to assist him in concluding that the charge was substantiated as well as accepting Sgt Flegg’s admission. In particular, he made reference to the search and rescue processes and said: “Had the subject officer applied the SAR processes and principles outlined in the SAR manual his actions would have been able to withstand the greater scrutiny. Similarly his judgment may have been less subjective in nature.” [28] The Assistant Commissioner then considered the evidence of various witnesses, including Mr Stephen, reports from Australian Transport Safety Bureau investigation of the incident and of course Sgt Flegg’s interviews with police officers subsequent to the incident. On the basis of that material and by reference to the Police Service Administration Act 19904 the Assistant Commissioner found that Sgt Flegg had committed misconduct. [29] The seriousness of the conduct can not be understated. Nor can it be suggested that the Assistant Commissioner did not have regard to the matters raised in Sgt Flegg’s submission as well as the material put 3 Report on decision of disciplinary hearing 9 March 2011 page 8. 4 Section 1.4, section 7, 7.2(1) and 7.4. -- 7 of 12 -- 8 before the Coroner, the Coroner’s findings and his own view of the evidence compiled in respect of the events which occurred between the 14th and 15th October 2005. It is against this background that the Assistant Commissioner imposed the sanction. [30] In imposing a sanction for misconduct I must have regard to the purpose of discipline within the Queensland Police Service. This is detailed in chapter 18 of the HRMM. Those purposes are to:  Maintain public confidence in the Queensland Police Service;  Maintain the self esteem of members of the Service;  Maintain confidence in the ability of the Service to the fulfil statutory functions;  Maintain proper standards of conduct for members of the Service (by specific and general deterrence principles);  Maintain the efficiency of the Service, and;  Protect the reputation of the Service. [31] Also, in imposing the sanction the Tribunal must have regard to the public interest and the need to maintain proper standards and protect the reputation of the Queensland Police Service. The sanction must reflect the seriousness of the conduct and deter others from engaging in similar conduct. The CMC submits that Sgt Flegg’s conduct in this matter warrants dismissal from the Police Force, even taking into account the mitigating factors considered by the Assistant Commissioner. Mitigating factors [32] Essentially, what the CMC submits is that the Assistant Commissioner placed too much weight on the mitigating factors in coming to his decision on sanction. It is submitted for a number of reasons that this Tribunal should consider those mitigating factors in a different light and come to a different conclusion. I will deal with the submission sequentially. [33] Fatigue was certainly a factor in Sgt Flegg’s performance while coordinating the search and rescue. He commenced work the morning of 14 October at 8:00am. After finishing work that afternoon he was recalled to duty and then took up the coordination of the search and rescue of the Malu Sara. He continued working through the night until the following morning without a break. Importantly, the situation deteriorated in the early hours of the morning of 15 October at a time when one could reasonably expect his judgment was likely to be impaired by lack of rest. Sgt Flegg was not offered any relief nor was any available. [34] The CMC contend that rather than fatigue, Sgt Flegg’s judgment was influenced by his attitude to the Torres Strait mariners, mainly because of his comment that they activated the EPIRB because they wanted to have someone come and get them. This overstates the significance of the comment, particularly in circumstances where it was reasonable for Sgt Flegg to proceed on the assumption that their vessel was seaworthy. -- 8 of 12 -- 9 [35] The CMC take issue with the reference to decisions and omissions being made at the end of a “40 hour” shift. Irrespective of that, assuming Sgt Flegg woke at 6am on the 14th, the critical stage of these events occurred some 20 hours later. On any view, fatigue must have played a factor in the decision making process. The Assistant Commissioner correctly identified this as a critical area for the Police Service to address to ensure an officer is not put in the same position again in the future. Fatigue is a matter that should properly be taken into account. [36] I have already mentioned Sgt Flegg’s assumption about the seaworthiness of Malu Sara. The vessel was new and owned by DIMIA. The CMC suggest it was unreasonable for Sgt Flegg to assume it was seaworthy because it was “untested” and he made no enquires about its serviceability contrary to the National Search and Rescue Manual. Firstly, before being commissioned for use in the open ocean, one would expect the vessel to be thoroughly tested and found to be seaworthy. This is particularly so when the vessel was owned by the Commonwealth Government. The Department surely had the resources to undertake due diligence when it came to supplying vessels for work in the Torres Strait. Secondly, the fact the vessel did not have VHF radio or chart would not lead to the conclusion that the vessel was not as seaworthy or robust as one might have expected. [37] The Malu Sara was commissioned to operate in and around the islands of the Torres Strait in all weather conditions and if the vessel was not seaworthy to perform the functions for which it was commissioned this is entirely the fault of the DIMIA. In my view it was reasonable for Sgt Flegg to assume the vessel would be seaworthy. This is certainly a factor that should be taken into account when considering his actions during the search and rescue. [38] In respect of overtasking, the comments of the Assistant Commissioner are relevant here. By virtue of his position he is best placed to make observations about police resourcing issues. He was critical of the staffing levels that evening. He was of the view that at least another officer should have assisted Sgt Flegg even if it was only confined to record keeping. This concern has been taken up by the Police Service because it has now mandated that an officer in Sgt Flegg’s position can no longer operate alone. In addition he found there was a failure in supervision in not providing a sounding board for Sgt Flegg to objectively test his assumptions, i.e. the Bell helicopter’s availability and the seaworthiness of the vessel. [39] The absence of this support contributed to not only the inaccurate record keeping but also the failing to recognise the seriousness of the situation at an earlier point in time to activate the appropriate response. [40] It is suggested that Sgt Flegg did have sufficient time to make more fulsome notes and impliedly, properly consider the seriousness of the -- 9 of 12 -- 10 situation. This still ignores the effect of fatigue and the fact that he was in constant communication with DIMIA, AusSAR and RCC and the vessel. [41] I accept from what was said by the Assistant Commissioner about the resources available that night, that Sgt Flegg was overtasked in coordinating the search and rescue alone. This is an important matter to be taken into account. [42] I accept that Sgt Flegg’s has a good service record. The most serious incident relied upon by the CMC involves an insurance claim involving a boat in 1995. The incident was investigated and was found to be unsubstantiated. Subsequent to that incident his record is unblemished. He has had nine favourable comments since 1995. I am of the view that the 1995 incident should not detract from his otherwise good service record. [43] The CMC is critical of his conduct during the investigation and the inquest. In particular, it is contended the Tribunal should take into account his conduct towards Mr Stephen, the criticism made of him by the Coroner. There was a lack of insight into his own conduct and by his ongoing denial he exhibited poor conduct other than in his note taking. I am unsure how this submission sits with Sgt Flegg’s acceptance that the charge against him has been substantiated and in doing so accepted the particulars of that charge. They not only relate to note taking but also relate to failing to take appropriate action when first appraised of the Malu Sara’s predicament and subsequently as well as failing to provide full and appropriate advice to the Australian Maritime Safety Authority Rescue Coordination Centre. [44] From the submission made and the findings of the Assistant Commissioner I am satisfied that Sgt Flegg does have insight into his conduct and his failings during search and rescue. This is a matter that should be taken into account. [45] It cannot be contentious that it is for the search and rescue coordinator to decide when to deploy available assets but this must also be based, to some extent, on the information coming from the master of the vessel. This point adds little to the consideration of sanction. [46] It is a valid criticism that Sgt Flegg did not give AusSAR the necessary and precise information about the Malu Sara when the issue of tasking a helicopter was raised. Had he done so a helicopter may or may not have been deployed. His responsibility was, and he has accepted, to fully inform AusSAR of the status of the vessel so it could make a decision about deploying a helicopter. He cannot blame it for not responding appropriately when all of the information was not imparted to it. Decision -- 10 of 12 -- 11 [47] I accept the CMC’s submission that Sgt Flegg’s responsibility was to give the occupants of the vessel the best chance of survival. Sgt Flegg’s conduct fell short of what was expected of an officer with his experience and knowledge in the circumstances that prevailed that night. Sgt Flegg has accepted that to be so. [48] The sanction imposed was carefully considered by the Assistant Commissioner taking into account not only the conduct of Sgt Flegg in the performance of his duty that night but also the mitigating factors referred to above. The Assistant Commissioner addressed, from a position of special knowledge, the operational deficiencies and lack of resources that confronted Sgt Flegg as well as fatigue which led to a lack of judgment on his part. His knowledge of search and rescue and years of service are an asset to the Police Service and should be preserved if possible. [49] Although I must come to my own independent view on the sanction, in many respects I am guided by the reasons of the Assistant Commissioner firstly, because I must have regard to those reasons,5 and secondly because of his knowledge of operational matters within the Police Service generally and particularly when dealing with the operational aspects of the search and rescue and the question of suspension and further relevant training. [50] I must also take into account the extraordinary delay in finalising the disciplinary proceeding against Sgt Flegg. The offending conduct occurred over six years ago and it is now some two years since the Coroner’s findings were delivered. To a large extent this was out of the hands of the Police Service because, understandably, they had to await the findings of the Coroner. But even so, this tragic incident has stalled Sgt Flegg’s career and left him with anxiety and uncertainty. In the meantime his conduct has been exemplary and he has acted up into the position of Senior Sergeant which signifies the confidence his superiors have in him and the improbability that he is likely to engage in misconduct in the future.6 [51] As well, there has been a significant financial impact since his transfer from Thursday Island to Cairns. His duties have been confined to watch house duties. [52] Dismissal from the Police Service is the harshest penalty that can be imposed. As I have said the CMC have not suggested any alternate penalty having regard to the various mitigating factors that should properly be taken into account. I have not been referred to any comparable decisions which would be of assistance in determining whether dismissal is warranted, perhaps there aren’t any. Even accepting dismissal as the starting point given his admitted misconduct, the significant mitigating factors including, his good service record, financial penalty, delay and 5 Aldrich v Ross [2001] 2 Qd R 235. 6 R v Law, ex parte Attorney-General [1996] 2 Qd R 63 at 66. -- 11 of 12 -- 12 those matters associated with the search and rescue, must all militate to the imposition of a lesser sanction. [53] I am not persuaded that Sgt Flegg should be dismissed from the Police Service nor am I persuaded that he should be dismissed and the dismissal be suspended. I am reasonably satisfied that when taking into account all of the mitigating factors the sanction imposed by the Assistant Commissioner sufficiently had regard to the seriousness of the misconduct, the public interest and the need to maintain proper standards and protect the reputation of the Queensland Police Service. I therefore confirm his decision. -- 12 of 12 --