Byles v Assistant Commissioner Les Hopkins

[2014] QCATA 322

CITATION: Byles v Assistant Commissioner Les Hopkins [2014] QCATA 322

PARTIES:	Matthew Byles (Applicant/Appellant)
v
Assistant Commissioner Les Hopkins (Respondent)

APPLICATION NUMBER: APL105-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon JB Thomas AM QC, Member

DELIVERED ON: 3 October 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.   Leave to appeal is granted.

2.   The decision of 28 January 2014 is set aside.

3.   In its place it is ordered that the application for extension of time to file the application to review the respondents decision is granted, and time is extended to the date upon which the application to review was filed.

CATCHWORDS:

Disciplinary proceedings – police – parity principle practice – extensions of time

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Braunberger v Hopkins [2014] QCAT 34

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

1. This is one of three similar applications for leave to appeal against a decision by a QCAT Member refusing to extend time for the commencement of a review of a police disciplinary decision.

2. The relevant circumstances relate to the conduct of five police officers (including the three applicants/appellants) who were charged with various acts of misconduct during and following an incident in Fortitude Valley on 12 September 2010.

3. The basis of each application is a perceived lack of parity in the sanctions imposed on the various officers.

4. To enable necessary comparisons to be made it is necessary to examine not only the conduct of the applicant in each matter but also that of the others.

5. The relevant facts and circumstances have been detailed in the reasons for judgment in Braunberger v Hopkins [2014] QCAT 34. To the extent to which those reasons describe the conduct of the police officers concerned, they are to be taken to be incorporated in these reasons, and will not be here repeated.

6. This appeal raises and relies on the same points as those in Braunberger’s case, and contains virtually identical submissions.  It is not suggested by either party that there are any valid distinguishing features so far as the present appeal is concerned.

7. The present applicant’s conduct, so far as delay, and reasons for delay are concerned, was virtually the same as Braunberger’s, and almost identical reasons are advanced to attempt to explain it.  

8. In the present matter Byles’s misconduct was described as “you were the senior officer of a team of police present in the vicinity of the Fringe Bar, Fortitude Valley, when a number of police officer’s took photographs of a semi naked unknown female during which you were situationally unaware of what was happening.  When you were made aware of the actions of police under your supervision and viewed the photographs taken, your only action was to ask Constable Garth to delete the photographs off his mobile telephone.  Further you were present when Constable Garth showed the photographs taken on his mobile telephone to other police officers travelling in a police vehicle.  At no time did you .. report the misconduct of your fellow police officers.”

9. The sanction which was imposed was reduction from Sergeant 3.5 to Sergeant 3.1 with no advancement to 3.2 for 12 months from the imposition of the sanction.

10. This, according to submissions on behalf of the applicant, which are at this stage uncontested, has subjected him to a financial loss in excess of $21,000.00.

11. Byles was not a participant in the original misconduct.  His error was in excessive tolerance when firm action was required.  His was a failure as a senior officer to discharge his responsibilities to stamp out misbehaviour of the kind that came to his attention.  Even so, it is difficult to think that his conduct in the end should be categorised as more serious than that of the principal offender, Constable Garth, whose sanction has now been reduced to a level estimated to be a loss of around $6,000.00.

12. The perceived disparity is obvious.

13. The different factual circumstances pertaining to the actions of Sergeant Byles and Constable Braunberger are appreciated, but the circumstances relevant to the question of extension of time for a review are in principle indistinguishable from those pertaining to Constable Braunberger.

14. For the reasons expressed in Braunberger’s case I consider that a similar extension of time should be granted to Sergeant Byles.

15. The orders will be:

    1.   Leave to appeal is granted.

    2.   The decision of 28 January 2014 is set aside.

    3.   In its place it is ordered that the application for extension of time to file the application to review the respondent’s decision is granted, and time is extended to the date upon which the application to review was filed.