Bill Layt v Chief Superintendent Glenn Horton - [2022] QCAT 227

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bill Layt v Chief Superintendent Glenn Horton and Anor [2022] QCAT 227

PARTIES:

BILL LAYT

(applicant)

v

CHIEF SUPERINTENDENT GLENN HORTON

(first respondent)

CRIME AND CORRUPTION COMMISSION
(second respondent)

APPLICATION NO/S:

OCR214-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 June 2022

HEARING DATE:

8 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

The decision under review is confirmed.

CATCHWORDS:

POLICE – EXTERNAL OVERSIGHT – where police officer de-activated body-worn camera and failed to record verbal caution administered to fellow officer for failing to stop at a stop sign – where misconduct not contested – where applicant sought review of sanction – whether sanction impermissibly took into account factual findings outside the particulars of the charge – whether mere contextual findings – perceptions relevant to public and officer confidence in police

Crime and Corruption Act 2001 (Qld), s 219A, s 219O, s 219P, s 219Q

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20

Aldrich v Ross (2001) 2 Qd R 235

Crime & Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510

Lee v Crime and Corruption Commission & Anor [2014] QCATA 326

APPEARANCES & REPRESENTATION:

Applicant:

T E Schmidt, Counsel (direct brief)

First respondent:

Second respondent:

R Fogarty, A/Senior Legal Officer, Queensland Police Service Legal Unit

J Rodriguez, Principal Legal Officer

REASONS FOR DECISION

In the course of his duties as a police officer, and in the role of a Field Training Officer accompanied by a First Year Constable (“FYC”), the applicant, Senior Constable Layt, intercepted a vehicle for failing to come to a complete stop at a stop sign.
Upon becoming aware that the driver of the vehicle was an off-duty police officer, Senior Constable Layt de-activated his body-worn camera (“BWC”) and directed the FYC to do the same. He then administered a verbal warning to the driver but, contrary to procedure, failed to formally record the warning in the Queensland Police Service (“QPS”) computer system.
The applicant does not dispute that his conduct in de-activating his BWC, directing the FYC to also do so, and not formally recording the warning, amounted to misconduct. However, he seeks review of the Deputy Commissioner’s decision as to the sanction for the misconduct.
The sanction
The sanction imposed by the Deputy Commissioner was that the applicant be demoted from Senior Constable pay point 2.10 to Constable pay point 1.6 for 6 months, suspended after 4 months conditional upon the applicant not committing any grounds for discipline in the 6-month period from the date of the sanction. As a consequence of the suspension, after 4 months the applicant would return to Senior Constable pay point 2.10 if the condition is met.
I was advised by Mr Schmidt, who appeared as counsel for the applicant, that the difference in the applicant’s base pay for the 4-month period, as a consequence of the demotion, would be in…

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: [2022] QCAT 227
Decision Date

CaseChat Overview and Summary

In the matter of Bill Layt v Chief Superintendent Glenn Horton, the court was presented with a dispute arising from misconduct by an officer of the Queensland Police Service. The applicant, Mr Layt, sought to challenge the decision by the Deputy Commissioner to impose sanctions following substantiated misconduct. The primary legal issue before the court was whether the Deputy Commissioner made impermissible findings of fact that extended beyond the scope of the substantiated misconduct, potentially exposing the applicant to sanctions for conduct not substantiated. Additionally, the court considered whether the Tribunal could take into account contextual circumstances relating to the substantiated conduct that may be relevant to either the gravity of the misconduct or mitigation.

The court meticulously reviewed the submissions and arguments presented by both parties. It assessed whether the Deputy Commissioner's decision was tainted by consideration of factors outside the substantiated misconduct. The court found that while the Deputy Commissioner's reasoning might have included some contextual considerations, the fundamental misconduct remained within the bounds of what was substantiated. The court emphasised that the Tribunal must respect the Deputy Commissioner's judgment but must also ensure that any findings of fact are confined to the specific misconduct substantiated. The court concluded that the Deputy Commissioner's decision, despite some contextual considerations, did not stray beyond the substantiated misconduct.

Ultimately, the court upheld the Deputy Commissioner's decision, affirming that the sanctions imposed were appropriate and within the scope of the substantiated misconduct. The court determined that the Tribunal was entitled to consider contextual circumstances relevant to the misconduct but had to ensure these considerations did not extend beyond the misconduct substantiated. The court's decision underscored the importance of maintaining the integrity of the disciplinary process by strictly adhering to the facts of the substantiated misconduct while allowing for relevant contextual factors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In making a decision on sanction, it is impermissible to make findings of fact that would stray beyond the ambit of the substantiated misconduct if that would amount to rendering the applicant liable for a sanction for conduct that is additional to or more serious than the substantiated conduct. However, the Tribunal may take into account contextual circumstances relating to the substantiated conduct which may be relevant to either the gravity of the misconduct or mitigation.[4]Consideration[4]Lee v Crime and Corruption Commission & Anor [2014] QCATA 326, [109]-[117]; Crime & Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510, [41]-[45].Impermissible findings of fact? Mr Schmidt submitted that the Deputy Commissioner wrongly took into account the potential for reputational harm to the QPS arising from providing favourable treatment to a fellow officer. Mr Schmidt went on to submit that the inference of preferential treatment was not particularised and could not be taken into account. Rather, the conduct to be sanctioned is confined to the particularised conduct of the applicant turning off his BWC; directing his FYC to do the same; and failing to record that a caution had been administered. Mr Schmidt also pointed out that the applicant had issued cautions to three other motorists that morning for the same conduct of failing to stop at the stop sign. His treatment of the off-duty police officer was the same, not preferential. Other than in one respect, even if the Deputy Commissioner erred in the way the applicant submits, that is irrelevant to the Tribunal’s task provided the Tribunal does not make the same error. That is because the Tribunal makes its own decision on the merits. The potentially relevant respect is that, as Mr Schmidt submitted, the force of the principle that the Tribunal should give due respect to the Deputy Commissioner’s judgement, would be undermined if that judgement is based on or influenced by a flawed premise. However, the Deputy Commissioner accepts that the applicant did not seek to bestow a pecuniary benefit on, or avoid a financial cost to, the off-duty officer. The applicant himself states in submissions that his reason for turning off the BWC “was to prevent embarrassment to the officer should the footage of the applicant vigorously cautioning him be seen by other work colleagues”. The applicant went on to submit that “[t]here is simply no evidence the camera was turned off for any other purpose, let alone an improper one”.[5][5]Applicant’s submissions, [25]. I approach my consideration of this matter on the footing that, apart from avoiding potential embarrassment, the applicant did not seek to confer any financial or other benefit on the off-duty officer. However, it is not so much the presence or absence of improper purpose, but rather the risk of public perceptions, that assumes greater significance in this case. Mr Schmidt sought to characterise the applicant’s conduct as of a procedural nature and at the lower end of the scale of misconduct. As already noted, I accept that the applicant did seek to confer a benefit on the driver other than the avoidance of embarrassment. Additionally, it may well be the case that the applicant acted impulsively in de-activating the recording when he recognised the driver as a colleague. Indeed, the driver, in a recorded interview, speculated that the applicant appeared to “panic”.[6] [6]Audio recording of interview with officer.