Arndt v Crime and Misconduct Commission & Anor - [2013] QCATA 340

CITATION:

Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340

PARTIES:	Benjamin Arndt (Applicant)
v
Crime and Misconduct Commission Assistant Commissioner Doyle (Respondents)

APPLICATION NUMBER:

APL248-13

MATTER TYPE:

Appeals

HEARING DATE:

25 October 2013

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Kanowski

DELIVERED ON:

18 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. The appeal is allowed.

3. The application of Crime and Misconduct Commission to review the decision of Assistant Commissioner Doyle is struck out.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where not a final decision – where question of general importance

POLICE DISCIPLINARY PROCEEDINGS – whether error of law made in finding decision was a “reviewable decision” – where meaning of “reviewable decision” in police disciplinary matters considered

Crime and Misconduct Act 2001 (Qld), s 49, s 50, s 219BA, s 219G, s 219H, Schedule 2
Police Service and Administration Act 1990 (Qld), s 2A, s 7A, s 7.4
Police Service (Discipline) Regulations 1990 (Qld), reg 3, re 6, reg 10, reg 11
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 142, s 146

Crime and Misconduct Commission v Assistant Commissioner, Queensland Police Service & Anor [2013] QCAT 231

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Represented by Peter J Davis QC

FIRST RESPONDENT:

Represented by M J Copley QC

SECOND RESPONDENT:

Represented by S McCloud of Counsel

REASONS FOR DECISION

This is an application by Constable Arndt for leave to appeal and to appeal the decision of the Tribunal dismissing his application to strike out a review proceeding commenced by the Crime and Misconduct Commission (CMC).

Background

In July 2006 Constable Arndt arrested Mr Rowe.
Subsequently Mr Rowe commenced a private prosecution against Constable Arndt for unlawful assault. Constable Arndt was found guilty of unlawful assault but with no conviction being recorded.
The CMC commenced an investigation into the arrest of Rowe. On 4 July 2012 it provided a report pursuant to s 49 of the Crime and Misconduct Act 2001 (Qld) to the Assistant Commissioner, Ethical Standards, Queensland Police Service (QPS), expressing a view that there was sufficient evidence to support an allegation that Constable Arndt committed misconduct. The CMC said that the report was given for the purpose of taking disciplinary action against Constable Arndt.
On 19 October 2012 Assistant Commissioner Doyle wrote a memorandum to the Assistant Commissioner Metropolitan North Region. He said he accepted the judicial findings that the force used by Constable Arndt was not justified in the circumstances and that the allegation of unlawful assault was therefore substantiated. He concluded that Constable Arndt should be provided with managerial guidance in relation to the substantiated allegation of misconduct.
The Acting Assistant Commissioner Metropolitan North Region than sent to Constable Arndt on 26 October 2012 a memorandum headed “advice to member where no disciplinary action is taken in respect of complaint”. In the memorandum it was noted that the complaint by Mr Rowe had been the subject of a disciplinary investigations,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCATA 340
Decision Date: 18 December 2013

CaseChat Overview and Summary

Arndt v Crime and Misconduct Commission & Anor involved a challenge by Constable Arndt against a decision of the Crime and Misconduct Commission (CMC) to review a decision made by Assistant Commissioner Doyle not to take disciplinary action against him. The dispute centred on whether the Assistant Commissioner's decision not to discipline Constable Arndt constituted a "reviewable decision" under the Police Service Administration Act 1999 (PSAA). The legal issues included the interpretation of the term "reviewable decision" and whether the Assistant Commissioner's decision to provide managerial guidance instead of disciplinary action qualified as a disciplinary decision.

The Appeal Tribunal considered the ordinary meaning of "decision" and "allegation of misconduct" and concluded that a "reviewable decision" under s 219BA of the PSAA must be a decision made within the context of disciplinary action. The Tribunal found that Assistant Commissioner Doyle's decision to give managerial guidance, rather than take disciplinary action, did not amount to a disciplinary decision as required by the statute. The CMC argued that the Assistant Commissioner was a "prescribed officer" with the authority to take disciplinary action, but the Tribunal held that this authority was only applicable if the officer formed the opinion that disciplinary action was necessary. Since Assistant Commissioner Doyle decided against disciplinary action, he did not qualify as a "prescribed officer" for the purposes of making a disciplinary decision.

Consequently, the Tribunal granted leave to appeal and allowed the appeal, holding that the Assistant Commissioner's decision was not a reviewable decision. The application by the CMC to review the Assistant Commissioner's decision was struck out.

Orders

Orders of the court

1. Leave to appeal granted.

2. The appeal is allowed.

3. The application of Crime and Misconduct Commission to review the decision of Assistant Commissioner Doyle is struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 219H which deals with the conduct of the review proceedings in QCAT says:[6]A review of a reviewable decision is by way of a rehearing on the evidence (original evidence) given in the proceeding before the original decision maker (original proceeding) (our emphasis). [6]CMC Act, s 219H(1). This suggests that a more formal proceeding, with a hearing, will have occurred within the QPS when a reviewable decision is made. This position is supported by another issue raised by Constable Arndt namely that a decision under s 7.4(2A)(a) is a decision by “a prescribed officer”. Constable Arndt says that Assistant Commissioner Doyle was not a “prescribed officer” for the purposes of making this decision. “Prescribed officer” means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.[7][7]PSAA, s 7.4(1). The relevant Regulation which authorises Assistant Commissioner Doyle to take disciplinary action is reg 6 which says:Where an assistant commissioner has formed the opinion that an officer should be disciplined … the assistant commissioner may order that the officer be disciplined … In this case the Assistant Commissioner did not form the opinion that Constable Arndt should be disciplined; to the contrary he decided he shouldn’t. Constable Arndt says therefore, for the purposes of making this decision, the Assistant Commissioner was not a “prescribed officer”. The CMC in its submissions on this issue suggest[8] that Assistant Commissioner Doyle as an Assistant Commissioner was given the power under reg 6 to take disciplinary action and therefore he was a “prescribed officer.” This is correct but only in circumstances where he formed the opinion that the officer should be disciplined.[8]CMC Submissions at [22] – [24]. We conclude that in all of these circumstances “a decision” in s 219BA means something more than any decision about an allegation of misconduct. It is the decision taken in a disciplinary action against the officer where the decision maker has formed a view that the officer should be disciplined. This was not the case here. As such we find that the Tribunal erred in finding that a “decision” had been made in the terms of s 219BA(1)(a).3.The report of the CMC is not “an allegation of misconduct” Constable Arndt also submits that the Assistant Commissioner’s determination was not made “in relation to an allegation of misconduct” as required by s 219BA(1)(a). The CMC say the words “allegation of misconduct” are not defined and therefore recourse should be had to the ordinary meaning of the words. Turning to the Macquarie dictionary it says it means “a mere assertion made without proof, an assertion made in a legal proceeding which a party undertakes to prove”. It submits that provided there is an assertion by someone that a prescribed person engaged in conduct that could constitute misconduct and then there is, for the purposes of s 219BA(1)(a), an “allegation of misconduct”.

Decision

Reasons for decision

We find no error in the Tribunal’s decision that Constable Arndt was a prescribed person.2.The determination by Assistant Commissioner Doyle is not “a decision” The Learned Member found[3] that an allegation has been made by the CMC of misconduct against Mr Arndt, namely unlawful assault. Assistant Commissioner Doyle, Ethical Standards Command considered the allegation substantiated, decided not to take disciplinary action, and instead to give managerial guidance to Mr Arndt. That is, he made a decision about the allegation.[3]Ibid at [21]. The CMC says that this is correct. It submits as there is no definition of the term “decision” it should be given its ordinary meaning. It says the Assistant Commissioner made a number of decisions about the allegation of misconduct: he decided he agreed with the CMC that the allegation of unlawful assault was substantiated and he decided that managerial guidance was the appropriate way to address the officer’s conduct. Constable Arndt says that if the word “decision” is given its literal meaning, every determination made in relation to an allegation of misconduct would be a “reviewable decision”. He gives the examples that the CMC could review a determination to postpone the making of a determination in a disciplinary action or an appointment under the regulations of a particular prescribed officer to consider the disciplinary matter. Assistant Commissioner Doyle as the second respondent in the appeal elected not to make any submissions of his own on the legal issues raised in the appeal. He did however comment that there needed to be certainty around when a “reviewable” decision was made asgiven the complex legislative and operational framework for police discipline, determinations in relation to allegations of misconduct arise by necessity for consideration at various stages or steps along the way throughout the investigations, overview and hearing processes.[4][4]Second respondent’s submissions dated 20 September 2013 at [8]. The Appeal Tribunal agrees that if a literal interpretation is given to the words in s 219BA then the concerns of Constable Arndt and the second respondent may be valid. When regard is had to s 219BA in the context of the police disciplinary regime provided for in the PSAA the words take on a narrower meaning. The CMC accepted that s 219BA was reflective of the provisions of s 7.4(2A) of the PSAA which refer to a prescribed officer “deciding an allegation of misconduct against an officer”. That is, a reviewable decision (as defined in s 219BA(1)(a) is (for the purposes of a police officer) a decision made under s 7.4(2A)(a) of the PSAA. Section 7.4 of the PSSA is headed “disciplinary action”. This suggests that a decision made under s 7.4 is made in a context of disciplinary action having been taken. In this case following receipt of the s 49 report the decision was made to give managerial guidance rather than take disciplinary action. Assistant Commissioner Doyle himself in his report of 19 October 2012 distinguished between managerial guidance and disciplinary action. He said the independent review report and recent discussions with the CMC indicate support for the proposition that an appropriate response to such conduct is remedial intervention unless circumstances require disciplinary action.[5][5]Memorandum of Assistant Commissioner Doyle dated 19 October 2012 at [9].

Ratio Decidendi

Legal Principle Established

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