Belz v Assistant Commissioner Wilson
[2011] QCAT 632
•28 October 2011
| CITATION: | Belz v Assistant Commissioner Wilson [2011] QCAT 632 |
| PARTIES: | Mr Damien Belz |
| v | |
| Assistant Commissioner Paul Wilson |
| APPLICATION NUMBER: | OCR288-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 September 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Peter Richards, Member |
| DELIVERED ON: | 28 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Application to Review the decision of the Respondent with respect to the imposition of the sanction imposed upon the Applicant by the Respondent is dismissed. |
| CATCHWORDS: | Police Discipline – use of excessive force – review of sanction – relevance of the protection of the reputation of the police service – no requirement to impose a form of rehabilitation where officer has history of similar conduct Crime and Misconduct Act 2001, ss 219G, 219H |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Damien Belz represented by Troy Schmidt of counsel instructed by Queensland Police Union solicitor |
| RESPONDENT: | Assistant Commissioner Paul Wilson represented by Scott McLeod of counsel instructed by the Police Service Solicitor |
REASONS FOR DECISION
This is an application to review the decision of the Respondent, Assistant Commissioner Paul Wilson.
On 29 October, 2010 the Respondent determined that the following charge of misconduct had been substantiated:
“Matter 1
That on the 29th day of November 2009 at Surfers Paradise your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you:
(a)used excessive force against (name deleted), whilst she was in custody; and
(b)used excessive force against (name deleted), whilst she was in custody.
[Section 1.4 and 7.4 of the Police Service Administration Act 1990 and s 9(1)(f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that:
·on 29 November 2009 you held the position of Sergeant at the Surfers Paradise Police Station, within the South Eastern Region;
·you performed duty as a shift supervisor from 11:00 pm in the prisoner processing area at Surfers Paradise Station;
·at about 11:40 pm on 29 November 2009 a female prisoner was in custody and placed in a holding cell; and
·while in the holding cell the prisoner attempted to self harm by hitting her head against fixed objects within the holding cell.
In relation to matter 1(a):
·at about 11:50 pm on 29 November 2009 you entered the holding cell, took hold of the prisoner’s hair and moved her from the cell floor to the cell bench seat.
In relation to matter 1(b):
·at about 11:52 pm on 29 November 2009 you re-entered the holding cell, took hold of the prisoner’s hair and moved her from the cell bench seat to an area outside that holding cell.”
The sanction imposed was as follows:
“That you be demoted in rank from Sergeant 3.3 to Senior Constable 2.9 for a period of 12 months (from 29 October, 2010). At the end of the 12 month period and depending upon your successful completion of your Performance Planning and Assessment (PPA), I order you be eligible to apply for the rank of Sergeant.”
The Application to review the Respondent’s decision is constrained to review the sanction on the basis that it was manifestly excessive. The facts surrounding the misconduct are succinctly stated in the Further and Better Particulars that appear above. The particulars of the proven misconduct are the Applicant’s actions between 11:40 to 11:52 pm on 29 November, 2009 whilst the Applicant, a Sergeant at the Surfers Paradise Police Station, was performing duty as a Shift Supervisor in the Prisoner Processing Area at Surfers Paradise Police Station.
A female prisoner was in police custody. She was placed in a holding cell. Whilst in the holding cell, she attempted to self harm by hitting her head against fixed objects within the holding cell.
Video footage of the incident shows that at around 11:50 pm the Applicant entered the holding cell. He took hold of her hair and moved her from the cell floor to the cell bench seat. Some two minutes later the footage depicts the Applicant re-entering the holding cell. He again took hold of her hair and moved her from the cell bench seat to an area outside the holding cell.
The Law
The Tribunal’s jurisdiction to review the Respondent’s decision is contained in sections 219G and 219H of the Crime and Misconduct Act 2001 (CMA) and sections 17 to 20 of the QueenslandCivil and Administrative Tribunal Act 2009 (QCAT Act).
Section 19 of QCAT Act is as follows:
“19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal -(a)must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b)may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c)has all the functions of the decision-maker for the reviewable decision being reviewed.”
Section 20 of QCAT Act is as follows:
“20 Review involves fresh hearing
(1)The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
(2)The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”
Section 219H of the CMA mirrors subsections 23(4), (5) and (6) of the repealed Misconduct Tribunals Act 1997 by providing that a review is by way of rehearing on the original evidence before the decision-maker with leave to adduce fresh, additional or substituted evidence subject to certain matters being satisfied.
The function of the Tribunal when determining an Application for review is to make its own decision on the available evidence (see Aldrich v Ross[1]). In that case, Thomas JA (with whom Pincus JA and Muir J agreed) stated at page 257:
“That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in managerial requirements of the police force.”
[1] (2001) 2 Qd R 235 at 257, paragraph 41.
The approach set out above was endorsed in the decision of Conder v Byrne[2] where de Jersey CJ stated that the Tribunal is “obliged to exercise an independent judgment but having regard to the [decision-maker’s] antecedent decisions”. (See also Crime and Misconduct Commission v McLennan[3].)
[2] [2004] QCS 82 at paragraph 3.
[3][2008] QCS 23 at paragraphs 9 and 10 and Konder v Baulch [2008] SC 110 at paragraphs 6-8.
This reasoning was recently followed in Compton v Deputy Commissioner Ian Stewart, Queensland Police Service[4]. Relevantly, the review in Compton was in respect to sanction only. After analyzing the relevant legislative scheme, the Presiding Member observed as follows:
“The remarks in Aldrich as to the approach to be taken when the issue is the penalty to be imposed upon a review are of assistance. Those remarks appear in paragraph 45 of the judgment in Aldrich, the last sentence of which reads:
“If the Misconduct Tribunal has the same view of the facts and inferences as the original Tribunal it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the Misconduct Tribunal.”
In short, the question of appropriate penalty is in the end one for this tribunal to determine. In doing so, it may be appropriate to pay considerable respect to the review of the original decision-maker but it must be the Tribunal’s decision.”
[4] [2010] QCAT 384.
The Respondent submitted in the written Outline that there are good reasons why considerable respect to the view of the original decision-maker should be paid because as in this instance, the Respondent is a very experienced police officer and has brought that experience to the task of assessing the appropriate sanction to be imposed. It was further submitted that the Respondent when hearing and ultimately determining the disciplinary process, sits in the position of a “specialist Tribunal” and brings his knowledge of police and police practices in order to make an assessment on sanction. This proposition was endorsed recently in O’Keefe v Rynders[5].
[5] [2011] QCAT 155 at paragraph 61.
The application to review the Respondent’s decision proceeds on the basis that the Respondent’s findings and reasons contained no factual error.
The Applicant submitted that “The protection of the QPS reputation is not an appropriate matter for consideration by decision-makers. I do not accept that submission as being a correct statement of the law.”
Section 4.1(1) of the Police Service Administration Act 1990 (PSA Act) provides that the Commissioner of Police “is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law.” One such responsibility is that “discipline of members of the service” (s 4.8(2)(e)).
In discharging his responsibility, the Commissioner may give or cause to be issued:
“Such directions, written or oral, general or particular as the Commissioner considers necessary as convenient to the efficient and proper functioning of the police service.” (Section 4.9 of the PSA Act).
The Commissioner has issued the Human Resource Management Manual (the HR Manual) pursuant to that section: Cuttler v Browne[6].
[6] [2010] QSC 205
Section 3 of the Police Service (Discipline) Regulations 1990 (the Regulations) sets out the objects of discipline within the Queensland Police Service, namely to:
(a)provide for a system of guiding, correcting, chastising and disciplining subordinate officers; and
(b)ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as:
(i)to protect the public; and
(ii)to uphold ethical standards within the Queensland Police Service; and
(iii)to promote and maintain public confidence in the Queensland Police Service.
Section 18.1 of the HR Manual deals with “complaint and client service reporting” and section 18.1.1 details the purpose of discipline with one such purpose being to “protect the reputation of the service”.
As the HR Manual is issued pursuant to section 4.9 of the PSA Act, it is apparent that the protection of the reputation of the service is a matter that the Respondent is entitled to have regard to when considering disciplinary matters generally and in my view, when determining the appropriate sanction.
Further, the HR Manual has legislative force and there is no inconsistency with section 3 of the Regulations. In Cuttler v Browne (supra) the Court decided that the HR Manual was a statutory instrument within the meaning of that term in section 7 of the Statutory Instruments Act 1992 and was not simply an administrative direction or policy. The Respondent was clearly entitled to have regard to the Queensland Police Service reputation in coming to this decision.
There is no merit in the submission contained in paragraph 34 of the Applicant’s Outline of Argument.
With respect to the submission contained at paragraph 35 of the Applicant’s Outline of Argument, the Applicant does not cite any statutory authority or decided case law to support the submission and it is not accepted. With respect to the Applicant’s submission contained in paragraph 37 of his Outline of Argument, it is clear that section 3 of the Regulations envisages all of the matters set out in section 3 are relevant. There is no specific emphasis to be placed on one particular matter.
The Applicant submits that apart from imposing a particular sanction on an officer such as demotion, the decision-maker must also impose some form of rehabilitation and/or Supervision Order in circumstances where an officer has history of like conduct when coming to a conclusion about the appropriate sanction.
The Applicant cites no mandatory statutory provision compelling such an approach or any relevant case law. Accordingly, that submission is not accepted.
The Applicant at paragraphs 44-47 makes some submissions with respect to the factual basis of the Respondent’s decision but ultimately at paragraph 47, accepts the factual findings made by the Respondent in his findings and reasons. In those circumstances, I accept those reasons and findings that substantiated the misconduct.
In summary, the Applicant used excessive force on two occasions, some two minutes apart as detailed above. The Applicant’s conduct in this regard is exacerbated by the fact that after leaving the cell, he returned and engaged in similar conduct by grabbing the prisoner by the hair on a second occasion. In this regard, the findings made by the Respondent are amply supported by the CCTV footage and the other evidence.
Bearing in mind those observations, the Respondent then proceeded to sanction. He referred to the appropriate statutory provisions and to case law. He identified the discretionary nature surrounding the imposition of sanction and clearly identified the object of disciplinary proceedings set out in Hardcastle v The Commissioner of Police [1984] 53 ALR 593.
The Respondent identified and acknowledged that many serious breaches of discipline are potentially very harmful to an organisation or to the public interest but may be generally trivial offences against the common law, if indeed they amount to offences at all. The Respondent stated “Therefore appropriate protective action may well be more onerous than any penalty which the Courts would impose for the same or similar conduct.”
The Applicant submits that the sanction imposed was punitive rather than imposed by reference to the above principles. That submission is not accepted.
In coming to the sanction that he imposed, the Respondent had regard to the following matters:
·The conduct complained of.
·The submissions.
·His conduct as a Police Officer in the region.
·Financial circumstances.
·The grave consequences of a finding of misconduct for both career and reputation.
·Public interest and the need to maintain proper standards.
·Protect the reputation of the Queensland Police Service.
·The sanction to reflect public disapproval of the conduct.
·Personal and general deterrence.
·The interests of consistency in determining appropriate standards of conduct by QPS members.
·Precedents raised before the hearing.
·An acceptance that the disciplinary investigation and the subsequent hearing impacted upon the Respondent’s personal and professional life.
·The relevant sanction did not warrant suspension.
·Had the Respondent’s action been made public, they could have eroded the community’s confidence in the Applicant’s ability to continue at his current rank as a member of the QPS.
The Respondent made some observations about the facts surrounding the proven misconduct.
“The video footage with respect to matter 1 (a) shows [the Applicant] removing the prisoner from the floor whilst holding her hair. It also shows that the Applicant did not immediately release the hair once the potential for self harm had been affected and the force shown was excessive.
“1(b) shows you removing the prisoner from the cell bench whilst holding her hair and taking her outside the cell. It also shows you did not immediately release the hair once the potential of self harm had been halted and again the force shown was excessive and inappropriate.
The similar act of taking hold of the prisoner by the hair had a clear implication for not only the service, but also the community expectations of a Queensland Police Service Officer in general. It is a fundamental requirement for any officer to act in accordance with both statute law and service policy and procedure. In failing to treat the prisoner with dignity or respect shows a clear disregard for your oath of office and a failure in your duty of care.
In failing to appropriately manage this situation you have exposed the service to a direct potential for embarrassment. In addition, it had the potential to cause even more serious issues had the person, received an injury whilst in custody from your actions.
Regardless of your claims that “whether it was the best way that’s for others to decide not for me” (page 36 para 9), as the supervisor it was your responsibility to ensure service policy and procedures are upheld. The actions taken were not in accordance with the standard expected of a senior officer within the Queensland Police Service and your oath of office. The fact the prisoner was in handcuffs and slight in statute shows you did not consider all options and practice safety, and you did in fact leave yourself and other staff present exposed to a potential threat of assault.
The behaviour exhibited has indicated a course of conduct which could have brought the service not only into disrepute, but possibly exposed you to criminal proceedings had the prisoner claimed to have been assaulted when dealt with by such behaviour.
As a senior and experienced Police Officer, your reported behaviour would not only be described as improper, but totally unacceptable given your rank and years of service. The community not only expects better, but demands a higher standard than that exhibited by the reported behaviour.
In my opinion the incidents captured on video at the station, if viewed by an unbiased observer, could be considered as conduct that is disgraceful, improper or unbecoming an officer of your rank and seniority. … I’m drawn to the conclusion that in fact you made a very substantial error of judgment in your behaviour in the matters that have been reported. … You should have known better. … In addition these matters could have had serious consequences for both you and the service had the community been aware of what had occurred.”
I should pause to add at this stage that the Applicant’s misconduct came about as a result of Police investigating other alleged misconduct and viewing the video tape of the prisoner being held in custody.
Further, the Respondent stated:
“It is my determination that your conduct highlights a lack of appreciation of the Code of Conduct. In particular your conduct failed to meet service expectations, had the potential to erode public confidence in the service and the potential to seriously embarrass your colleagues in the Queensland Police Service. … Your response to the prisoner committing self harm was not one that has been delivered during any recognised training provided to members of the service and was clearly your decision at the time. I do not consider it was either measured or tactically sound given the potential for the prisoner to use the handcuffs as a weapon against you or any other members present at the time. … I am extremely disappointed with your conduct and, in some instances, your lack of recognition of the implications of your conduct.
As a Sergeant you are looked upon by subordinates to be a role model who provides guidance by leadership and high work ethic. Your comments during your discipline interview mentioned previously “whether it was the best way, that’s for others to decide not for me” (page 36, para 9), shows your lack of understanding for the circumstances surrounding the incident. Your approach as a senior officer and supervisor provided a poor example to subordinates of the behaviour expected of a member with your years and level of experience.”
Discussion
Bearing in mind that the purpose of the review of a reviewable decision is to produce the correct and preferable decision, I have had regard to the decision of the Respondent. In particular, I have given considerable respect to the Respondent’s perceptions with respect to the evidence and to his perceptions of what is needed for the maintenance of internal discipline within the Queensland Police Service. I also give considerable weight to the views expressed in his decision and in particular I have borne in mind that the Respondent possesses particular expertise in the managerial requirements of the Queensland Police Service.
I want to make it clear that I have exercised my own independent judgment in coming to the conclusion that there is no merit in the application, but in doing so have borne in mind the matters that I have referred to above. In particular, I have come to the same view of the facts and drawn the same inferences that the Respondent did with respect to the evidence placed before him. The evidence before him included the Applicant’s service history that appears at pages 51-63 of the Appeal Record. Without going into any great detail, the Applicant’s complaint history was one of the matters that the Respondent took into account when coming to a conclusion about the appropriate sanction to be imposed.
I have identified above the complaint by the Applicant that some form of rehabilitation and/or supervision order was not attached to the sanction imposed. In light of the complaint history and previous sanctions imposed, that is understandable.
In coming to my decision, I have had regard to all of the material contained in the Folder of Material supplied and the submissions made by Counsel in support of their respective Outlines of Argument and the material supplied during the course of the hearing.
The Applicant handed up Exhibit 2 at the hearing of this matter which is a submission by the Applicant in the matter. Both parties accepted that Exhibit 2 should be treated as “a letter to the Tribunal”. The document contained “submissions that are not the submissions of the Queensland Police Union of Employees or the Queensland Police Service and have been formulated without their advice, and do not necessarily represent the opinions of either entity”. I have carefully considered the contents of Exhibit 2 in coming to my conclusion in this matter.
DECISION
The Application to Review the decision of the Respondent with respect to the imposition of the sanction imposed upon the Applicant by the Respondent is dismissed.
NON-PUBLICATION ORDER
The Tribunal notes that orders were made by the Tribunal on 30 November 2011 prohibiting the publication of the DVD containing CCTV footage of the Surfers Paradise Police Station and prohibiting the publication of any material which identifies or may identify the person to whom the Applicant’s behaviour was directed.
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