Belz v Assistant Commissioner Wilson
[2012] QCATA 185
•21 June 2012
| CITATION: | Belz v Assistant Commissioner Wilson [2012] QCATA 185 |
| PARTIES: | Damien Anthony Belz (Applicant) |
| v | |
| Assistant Commissioner Paul Wilson (Respondent) |
| APPLICATION NUMBER: | APL486-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J Thomas AM QC, Member |
| DELIVERED ON: | 21 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicant's application for leave to reopen a review of the respondent’s finding of substantiation of misconduct is dismissed. 2. The applicant's application for an order declaring the tribunal’s order of 4 April 2011 to be null and void is refused. 3. The applicant's application for leave to appeal against sanction is refused. 4. The applicant’s application for leave to appeal or appeal is dismissed. |
CATCHWORDS: | APPEAL – Applicant sought review of substantiation and sanction – Applicant abandoned review of substantiation and by consent Tribunal ordered that review struck out – application to review the sanction dismissed – Applicant sought reopening and that previous Tribunal orders be declared void – relevance of Applicant’s psychological condition – relevance of advice about effect of cooperation, remorse and early plea of guilty – relevance of circumstance where Applicant’s actions exposed police service to public criticism |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
I have been appointed to determine the present application on the papers.
It is an application by the respondent that certain claims for relief by the applicant be struck out under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), and that the applicant's application for leave to appeal be dismissed.
Earlier proceedings included a disciplinary proceeding in which the respondent found a charge of misconduct substantiated against the applicant and imposed a sanction demoting the applicant from Sergeant 3.3 to Senior Constable 2.9. The applicant (who will be referred to as "Mr Belz”) sought a review of both decisions, but in March 2011 instructed his legal representatives to abandon the review against substantiation and to proceed only with the review of sanction.
They acted accordingly, and consequently on 4 April 2011 the Tribunal ordered by consent that the application for review of the respondent’s decision to substantiate the matter be struck out.
Review of the sanction duly proceeded before Mr Richards, QCAT Member, in September 2011. His decision, given on 28 October 2011 was that the application to review the sanction be dismissed.
Mr Belz now seeks to appeal against that dismissal. He has changed his mind about abandoning review of the substantiation finding, and now seeks orders from this Tribunal as follows:
(a)to allow me to reopen this matter and contest the substantiation of the charges; and
(b)an order from the Tribunal that the previous orders made by the Tribunal are null and void.
The present application before me is the respondent’s application to strike out all items of relief sought by the applicant on the appeal. Specifically it is:
(a)To dismiss or strike out Mr Belz’s application to reopen a review of substantiation of the charge, and to strike out his request for an order declaring “the previous orders” (notably the consent order of 4 April 2011) to be null and void; and
(b)To strike out his application for leave to appeal against the sanction, on the ground that leave to appeal is necessary because it is an appeal on a question of fact, not of law, and it does not advance any recognised reason why leave should be granted.
Grounds of Mr Belz’s applications
The basis of Mr Belz’s application to reopen the issue of substantiation is that he suffered a psychological reaction in the aftermath of the disciplinary proceedings which followed the incident that occurred in the Surfers Paradise Police Station on 29 November 2009. In his “grounds of appeal” he states:
“During the process which commenced on 2 December 2009, I have had difficulty coping with (1) being stood down, (2) being charged with a disciplinary charge that I believed was excessive and unfounded, (3) having that charge substantiated and the prescribed officer placing insufficient weight on the justification for my actions. Since 8/9/2011 I have consulted a psychologist. As a result of that consultation I now have a sound grasp of the defence that was presented on my behalf. In July 2011 I sought to appeal the substantiation of the charge however my legal representatives stated that the QPUE would not support me. This caused me significant stress and now that I am clearer of thought I seek to contest substantiation of the two misconduct charges.”
I am grateful for Mr Belz’s articulate and relatively concise submissions. Primarily what he wants is a rehearing on the merits of the principal issue – whether his actions in assaulting a female prisoner on 29 November 2009 amounted to police misconduct in the circumstances. His defence is that it was his reaction to prevent her doing further harm to herself and that it was not misconduct.
However before he can reopen these issues he has a number of hurdles to overcome.
Circumstances
The following is a short history of the evidence and proceedings in the matter.
The incident in question occurred in the Surfers Paradise Police Station on 29 November 2009. Mr Belz was the shift supervisor. A female prisoner in a holding cell attempted self harm by hitting her head against objects in the cell. CCTV footage shows that the applicant entered the cell, forcibly took hold of her hair and moved her from the floor to the cell bench seat. He left the cell, re entered two minutes later, a gain took hold of her by the hair and moved her from the cell bench seat to an area outside the holding cell.
The footage was observed fairly soon after the event, and the applicant was immediately stood down pending investigation, and confined to clerical duties.
Ten months elapsed between the incident and the disciplinary determination, and a further 12 months before the QCAT determination.
The reasons for judgment of the respondent, especially pages 7-10 thereof, show that he gave detailed consideration to Mr Belz’s defence of reasonable reaction to a difficult emergency situation, and concluded that his actions were excessive and improper.
The respondent’s adverse finding of substantiation and the imposition of the sanction of demotion were made on 29 October 2010. From this, Mr Belz brought proceedings in QCAT for review of both decisions.
In March 2011, following advice from his legal representatives, Mr Belz instructed them not to proceed with the review of substantiation, but to continue with the review of the sanction. In consequence a consent order was made in QCAT on 4 April 2011 striking out the application for review of substantiation.
At some stage during the pendency of the various proceedings Mr Belz developed anxiety symptoms and depression. The first reference to a psychologist, on the evidence, was on 21 October 2011, about one week before the delivery of the QCAT member’s decision, but obviously the condition had been developing before this.
The opinion of the psychologist was that Mr Belz suffered “mild to moderate anxiety” and “moderate to severe depression”. His opinion after 8 sessions of treatment (on 2 December 2011) was that Mr Belz was suffering an enduring depressive syndrome and concomitant post traumatic stress.
Discussion
The main purpose of the evidence of the applicant’s psychological condition appears to explain his instruction to his legal representatives in March 2011 to abandon the review of substantiation, and to suggest that it was invalid, or that he was not thinking properly.
The point has been well argued in his submissions. The essential facts, as I see them, are that during the review on the issue of sanction, his legal representatives were able to make, and did make, submissions that they could not have effectively made if their client was still contesting liability and denying any misconduct. In the proceedings before the QCAT matter (Mr Richards) it was submitted on his behalf that he showed insight and remorse. The effect of these submissions may have been slightly undermined by the fact that Mr Belz insisted on the tender of an 11 page submission of his own which into alia attempted to explain and justify his actions. It was received as a letter to the tribunal "parallel with a letter to the court during a guilty plea".[1]
[1] Transcript of hearing before Mr Richards pp 5-6.
Overall it is clear that his withdrawal of the review of substantiation of that charge placed his legal representatives in a better position to allege remorse and insight, and he obtained the benefit of this.
However, having failed in that review he has changed his mind. Subsequently, he reflected that “it would have been better for him to have combated the investigators main finding that excessive force had been used.”[2]
[2] Psychological report of Dr Trevor Soole 27 February 2012, page 3.
Mr Belz’s case for reopening this issue includes a further submission that his instructions to abandon the review were the result of incorrect legal advice from his representatives. In particular he was advised that “we get a discount for co-operating and contesting only the sanction”, “we get a further benefit for showing remorse and insight and this should amount to an additional discount in sanction” and “fighting the matter will cost us the discount for co-operation and plea”.
A subsequent decision in QCAT, McKenzie v Assistant Commissioner Wright [2011] QCATA 309 has clarified the relevance in matters of this kind of factors such as cooperation, remorse and early pleas of guilty. The passage relied on is as follows:
“In disciplinary proceedings the main relevance of an early indication of acceptance of the charge is that it indicates honesty and remorse, and a willingness to face up to obligations. We are not at this stage prepared to attempt to introduce any system comparable to that in the criminal courts where substantial and measurable discounts are allowed for early pleas of guilty. The main relevance of such conduct in this disciplinary jurisdiction is its indication of remorse and responsibility. It is worth mentioning that these can be very significant and influential factors … counsel were unable to refer to any instance in which specific credit for a plea of guilty was granted in the former Misconduct Tribunal, or indeed in the cases determined by this Tribunal since 2009.” (my underlining)
While in hindsight his legal representative’s reference to “discount” was inappropriate, though understandable in the then unsettled state of practice on this point, the essential advice was in substance correct in indicating the potential benefit of cooperating and contesting only the sanction. It was correct to mention the benefit of showing remorse and insight, and that fighting the matter could undermine or completely lose such benefits. It was no longer a situation in which any question arose of benefit for an early plea of guilty, because the matter had been fully contested in the original disciplinary hearing. The real situation was that the legal representatives would be hampered in submitting that their client showed remorse and insight if he was still contesting his guilt and claiming justification for his actions.
In short, although the advice of which he now complains does not sit easily with the later statements in McKenzie’s Case, they were in substance well directed.
Indeed, it seems that despite legal representation during the QCAT review, Mr Belz insisted upon a personal submission being presented to the Tribunal[3] which to some extent argued a justification of his actions, and was hardly apologetic or remorseful. Significantly however, even in this personal submission he made the following statement:
“In presenting this submission I simply argue that I accept that I have committed a breach of the standards of discipline expected of a Queensland Police Officer, and I accept that due to my rank at the time, and the seriousness of this incident, misconduct was an appropriate classification of my actions. However the subsequent effect of an unbalanced and unfair appraisal of the facts has resulted in a sanction that involved a demotion.”[4]
[3] Exhibit 2 in those proceedings, treated as a “letter to the Tribunal”.
[4] Exhibit 2 before the Tribunal, page 10.
While the report shows that the applicant has suffered considerably as a result of the disciplinary proceedings brought against him, they do not come anywhere near close to suggesting incapacity to give instructions for litigation.
In all the above circumstances I am not satisfied that Mr Belz was in any relevant way a victim of misleading legal advice, that he was at such psychological disadvantage that his decision to abandon the review of substantiation should be set at nought, or that he has been deprived of due process in any relevant respect. Although one may feel some sympathy with the applicant, the present application is essentially a change of ground and an attempt to obtain what is in legal parlance often described as a second bite of the cherry.
Disposition of application to reopen
In these circumstances I accept the respondent’s submission that quite apart from the lack of any application in the approved form and a lack of an application for extension of time to file such an application, no reopening ground is shown under section 138 of the QCAT Act.
Section 47 of the QCAT Act provides for the dismissal or striking out proceedings that are frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. I am satisfied that this application to reopen the issue of substantiation is misconceived and lacking in substance and that it ought to be struck out at this stage.
Application for leave to appeal – whether it should be struck out
Neither Mr Belz’s application for appeal, nor his response to the present application identifies a particular point of law upon which the appeal is said to be based, or the ground upon which leave to appeal should be granted. Essentially, he desires to submit that the sanction was manifestly excessive.
I apprehend however from part 2 of his submissions dealing with “appeal of sanction” that he contends that it was a legal error for the Member to take into account as a factor against the applicant the circumstance that his actions had exposed the police service to public criticism. I am of the view however, that such a matter was plainly a relevant consideration and that there is no substance in that submission. It is incapable of supporting a successful appeal.
All the other points made in this substantial submission are plainly concerned with matters of fact, how the evidence should be viewed and allegation of factual error and interpretation of a comment made during the initial interview, and interpretation of prior acts of the applicant and how they should be regarded.
An applicant for leave should show that the decision in question contains an appealable error which has resulted in a substantial injustice[5]. The material in this matter does not and is not capable of establishing this. Neither does it raise any question of general importance which it would be to the public advantage to ventilate, or any other known basis for the grant of leave. I am of the view that, despite Mr Belz’s able argument, the circumstances fail to suggest any reasonably arguable case that demotion was a manifestly excessive sanction for the assaults which are described in the particulars and discussed in the reasons for judgment of the primary decision maker. Certainly, on its face it does not appear to be manifestly excessive, and it is not a situation where one could infer that the result is so obviously unjust that there must have been some error. In that situation the appropriate order is to refuse leave to appeal.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Having considered all the submissions I am of the view that further prosecution of this matter by the applicant is hopeless, and that the correct response is to grant the respondent’s application for an order that leave to appeal be refused and that the appeal be dismissed.
4
1
0