Crime and Corruption Commission v Assistant Commissioner Carless

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Crime and Corruption Commission v Assistant Commissioner Carless & Ors [2022] QCAT 87

PARTIES:

CRIME AND CORRUPTION COMMISSION

(applicant)

v

ASSISTANT COMMISSIONER CARLESS

(First respondent)

SERGEANT AUSTIN

(Second respondent)

APPLICATION NO/S:

OCR294-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 March 2022

HEARING DATE:

14 July 2021

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Traves

ORDERS:

1.       The decision of Assistant Commissioner Carless of 24 August 2020 sanctioning the second respondent is amended by imposing a reduction in rank of sergeant pay-point 3.7 to senior constable pay-point 2.10 for 12 months, not suspended (with reversion to substantive sergeant pay-point at the completion of the suspension period).

2. Until further order, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld):

(a)    publication of the contents of a document or thing filed in or produced to the Tribunal; or

(b)   evidence given before the Tribunal and any order made or reasons given by the Tribunal;

is prohibited to the extent it can identify or lead to identification of any third party, save as is necessary for the parties to engage in, and progress the proceedings.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where review of sanction – purpose of disciplinary system - where second respondent present when Taser deployed on a person who was handcuffed – where second respondent assisted the officer responsible to make false and misleading report of the incident – where second respondent wrote a false and misleading email to senior officers about the incident – where second respondent made untruthful statements in an interview about the incident

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

Police Service Administration Act 1990 (Qld), s 7.1, s 7.35
Police Service Discipline Regulations 1990 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 24

Aldrich v Ross [2001] 2 QdR 235

BJB v Acting Deputy Commissioner Wright [2021] QCAT 
Chadwick v Acting Deputy Commissioner DA Wright [2020] QCAT 66
Crime and Corruption Commission v Acting Commissioner Barron and Miers [2015] QCAT 96
Crime and Corruption Commission v Taylor and Shepherd [2018] QCAT
Deputy Commissioner Stewart v Dark [2012] QCA 228 Gunter v Assistant Commissioner Wilkins [2021] QCA 274
VG v Deputy Commissioner Barnett [2013] QCAT 449
Re Bowen (1996) 2 QdR 8

Wadham v Deputy Commissioner Ian Stewart [2010] QCAT 578

APPEARANCES & REPRESENTATION:

Applicant:

Ms Z Valeska

First respondent:

Mr I Fraser, QPS Legal Unit

Second respondent:

Mr T Schmidt, counsel

REASONS FOR DECISION

  1. The Crime and Corruption Commission, has applied, pursuant to s 219P(1) of the Crime and Corruption Act 2001 (Qld) (CC Act) to review the decision of 24 August 2020 by Assistant Commissioner Carless, that imposed a sanction on Sergeant Austin in respect of a police disciplinary matter.

  2. The disciplinary matter related to the Sergeant’s conduct on 22 September 2019 and 23 March 2020, as particularised below. The sanction imposed was a demotion…

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Details
Case
[2022] QCAT 87
Decision Date

CaseChat Overview and Summary

Crime and Corruption Commission v Assistant Commissioner Carless is a disciplinary matter involving Sergeant Austin, a police officer, who faced charges of improper conduct relating to the use of a Taser on a handcuffed individual and providing false information about the incident. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues involved whether the sanctions imposed on Sergeant Austin were appropriate and whether the fresh evidence presented justified a review of the original decision. The court had to determine if the new evidence was relevant and if the original sanctions were fair and just.

The court found that Sergeant Austin's conduct was indeed improper and warranted disciplinary action. The evidence showed that Sergeant Austin failed to properly supervise the use of a Taser, assisted in entering false information into the police database, and provided misleading information to senior officers. The court considered the seriousness of these actions, particularly the dishonesty involved, and the potential impact on public trust in the police service. The fresh evidence, which included affidavits from Sergeant Austin, his mentor, and a senior officer, indicated that Sergeant Austin had engaged in professional development and shown remorse since the incident. However, the court found that the original sanctions were appropriate given the gravity of the misconduct.

The court concluded that the original sanctions, including demotion, community service, and a professional development strategy, were appropriate and necessary. The fresh evidence did not alter the court's view that the misconduct was serious and warranted a significant response. The court also granted a non-publication order to protect the identity of third parties involved in the incident. This decision underscores the importance of integrity and accurate reporting in police operations and the need for appropriate disciplinary measures when these standards are breached.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In addition to the above sanction, the following professional development strategy was imposed:The imposition of a Professional Development Strategy involving mentoring by a designated Commissioner Officer from Gold Coast District for a period of six months with a focus of ethical leadership and professional practice.Further background The matters referred to above arose out of the following agreed facts, which I will summarise. The second respondent responded to a disturbance at a nightclub at Surfers Paradise at about 12:20am. He arrested a patron, MK, shortly after she left the club. The second respondent and other police were struggling with MK, trying to get her into the back of the police van. A junior officer approached MK from behind and, without warning to her, issued Taser in drive stun mode to her upper back, just below the base of her neck, causing her to collapse to the ground. At the time the Taser was deployed, MK was handcuffed with her hands behind her back. The second respondent knew the junior officer had used his Taser on MK while she was handcuffed. He advised the junior officer immediately after the Tasering to “word up that drive stun…that she had slipped the cuff and her arm was going around…”. Upon returning to the station, the second respondent further discussed the use of the Taser with the junior officer and reiterated that he wasn’t supposed to Taser someone who was handcuffed. The second respondent advised the junior officer to state MK had slipped the handcuffs and to make sure this point was focussed on in the Use of Force Report. The second respondent then authored and sent the junior officer an email containing a precis of the incident which deceptively described MK as waving her arms with the handcuff still attached to her wrist and the Taser having been deployed due to the risk of injury. The second respondent was aware the junior officer entered this information into QPRIME and that it was not an accurate description of events. The second respondent then wrote an email to other senior officers which deceptively stated:· During this struggle, the offender was waving her arms including her right arm with the handcuff still attached to her wrist and the Taser was deployed due to the risk of injury.· Due to the risk of injury that may be inflicted by the offender swinging around the handcuff attached to her right wrist.· The deploying officer found that extreme circumstances existed and the only other reasonable option to avoid the imminent risk of injury to officers involved in trying to restrain the offender a taser as deployed in drive stun mode.· …footage reviewed by [the second respondent] after the incident. Footage corresponds with the officer’s version of events. Later, on 23 March 2020, the second respondent participated in a directed discipline interview. He was untruthful to a senior officer conducting the investigation as indicated by the following:· As far as I’m concerned, if she had slipped the cuffs she still had one on, and you really can’t drive, you can’t stun someone who has a cuff on whether it’s both wrists or not as far as I’m concerned…it just doesn’t go with policy and procedure in that regard.· Being a previous OST instructor, having been involved, not involved, heard of incidents recently where people have been drive-stunned or Tasered whilst handcuffed, I knew that he was in a world of hurt to put it very bluntly.

Evidence

Evidence Before The Court

While I accept that there is now an increased emphasis on rehabilitation of officers who have transgressed, the PSAA still recognises that there will be cases where a sanction other than or in addition to strategies geared to rehabilitation, are necessary. Application to rely on fresh evidence At the commencement of the hearing the second respondent, Sergeant Austin was granted leave to rely upon fresh evidence. Section 219Q of the CC Act provides that a review hearing before the Tribunal is a rehearing on the evidence before the original decision-maker. However, the Tribunal may give leave to adduce fresh, additional or substituted evidence if the person seeking to adduce it did not know or could not reasonably be expected to know of its existence at the original proceedings and in the special circumstances of the case, where it would be unfair not to allow the person to adduce it. The evidence comprised three affidavits[9] one by Sergeant Austin relating to his professional development, learnings and experiences and work history since the original decision; the second under the hand of Senior Sergeant Rix, who was the officer in charge of the station at Surfers Paradise, regarding his professional observations of Sergeant Austin since the original decision; and the third under the hand of Sergeant Austin’s assigned mentor relating to the mentoring provided and Sergeant Austin’s engagement in that process. The applicant did not oppose the application. I granted leave to rely on the new evidence on the bases Sergeant Austin’s conduct in the intervening period may have affected the sanction imposed on review and was accordingly relevant;[10] and that the evidence related to matters arising after the original decision which could not, therefore, have been known by Sergeant Austin at the time of the original decision. [9]Affidavit of Sergeant Austin dated 29 June 2021; Affidavit of Senior Sergeant Rix dated 29 June 2021; Affidavit of Inspector Baade dated 29 June 2021.[10]Legal Services Commissioner v Fellows [2017] QCAT 337 at [27].Non-publication order The Commission also sought a non-publication order pursuant to s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting the publication of third party particulars, including footage of the arrest that led to the disciplinary matter and other materials filed which could lead to the identification of third parties. I am satisfied it is necessary to make the order on the basis the information is confidential and it would be contrary to the public interest to publish it.[11] [11]QCAT Act, s 66(2)(d). Accordingly, I make a non-publication order prohibiting the publication of the contents of a document or thing produced to the Tribunal or evidence given before the Tribunal and any order or Reasons given by the Tribunal, to the extent it can identify or lead to identification of any third party, save as is necessary for the parties to engage in, and progress the proceedings.[12] [12]QCAT Act, s 66(2)(d).The original decision

Decision

Reasons for decision

Accordingly, I make a non-publication order prohibiting the publication of the contents of a document or thing produced to the Tribunal or evidence given before the Tribunal and any order or Reasons given by the Tribunal, to the extent it can identify or lead to identification of any third party, save as is necessary for the parties to engage in, and progress the proceedings.[12] [12]QCAT Act, s 66(2)(d).The original decision Sergeant Austin admitted to the following conduct which occurred on 22 September 2019 and 23 March 2020:Matter OneThat on the 22nd say of September 2019 at Surfers Paradise your conduct was improper in that you:(a) Failed to exercise appropriate supervision and management at an incident involving the inappropriate use of a Taser; (b) Assisted a subordinate officer enter false and misleading information into the Queensland Police Service computer system to describe the use of force against Ms K;(c) Provided false and misleading information to senior officers to justify the use of a Taser against Ms K.Matter Two That on the 23rd day of March 2020 at Gold Coast your conduct was improper in that you were untruthful to a senior officer conducting an inquiry or investigation into a disciplinary complaint. On 22 July 2020 the following sanction for both matters was imposed:You are reprimanded;I order you be demoted from the rank of sergeant pay-point 3.7 to senior constable pay point 2.10 for twelve months, suspended after three months. You will return to your substantive sergeant pay-point at the completion of the suspension period;I order you to perform 20 hours community service at a PCYC within six months. In addition to the above sanction, the following professional development strategy was imposed:The imposition of a Professional Development Strategy involving mentoring by a designated Commissioner Officer from Gold Coast District for a period of six months with a focus of ethical leadership and professional practice.Further background The matters referred to above arose out of the following agreed facts, which I will summarise. The second respondent responded to a disturbance at a nightclub at Surfers Paradise at about 12:20am. He arrested a patron, MK, shortly after she left the club. The second respondent and other police were struggling with MK, trying to get her into the back of the police van. A junior officer approached MK from behind and, without warning to her, issued Taser in drive stun mode to her upper back, just below the base of her neck, causing her to collapse to the ground. At the time the Taser was deployed, MK was handcuffed with her hands behind her back. The second respondent knew the junior officer had used his Taser on MK while she was handcuffed. He advised the junior officer immediately after the Tasering to “word up that drive stun…that she had slipped the cuff and her arm was going around…”. Upon returning to the station, the second respondent further discussed the use of the Taser with the junior officer and reiterated that he wasn’t supposed to Taser someone who was handcuffed. The second respondent advised the junior officer to state MK had slipped the handcuffs and to make sure this point was focussed on in the Use of Force Report. The second respondent then authored and sent the junior officer an email containing a precis of the incident which deceptively described MK as waving her arms with the handcuff still attached to her wrist and the Taser having been deployed due to the risk of injury. The second respondent was aware the junior officer entered this information into QPRIME and that it was not an accurate description of events.

Ratio Decidendi

Legal Principle Established

Further, it was submitted that the authorities referred to by the applicant were not comparable in that Chadwick and Wadham involved elements of criminality, including the provision of false sworn statements.Consideration of the sanction to impose The behaviour of the second respondent is very concerning for a number of reasons. It is critical that Use of Force events against members of the public are properly and accurately recorded. It is one thing to Taser a heavily intoxicated person who is uncooperative, difficult to control and abusive towards police but it is another thing entirely to lie about what occurred. Here the lies occurred because the second respondent knew that using a Taser on a person who was handcuffed was not consistent with QPS Taser policy[15] and by reporting that she had only one handcuff on and was waving her arm around, was representing that she was not in that category and, moreover, was at risk of injuring police officers. [15]QPS Operational Procedures Manual, Chapter 14; QPS Conducted Energy Weapon Good Practice Guide. In fact MK had both hands cuffed together behind her back at the time the Taser was deployed. She was also surrounded by several police officers who were attempting to put her into the back of the police van, including the second respondent. Having viewed the video footage of the incident, the police officers present were not, in my view, at any sensible risk of harm. This is consistent with the findings of the QPS Discipline Investigation Report.[16] Dishonesty in this context raises serious concerns about the ability of the second respondent to uphold standards of integrity when under pressure.[16]Statement of Reasons: p 75: Investigation Report. The second respondent is in a senior leadership role within the police service. It may be assumed that his junior officers look to him for guidance and direction. It is important that in circumstances where the wrong thing is done by police, even assuming it to be in the heat of the moment, that the person with ultimate authority shows leadership and integrity by reporting accurately what occurred and ensuring others do the same. I have been referred to a decision in Chadwick v Acting Deputy Commissioner DA Wright.[17] In Chadwick, the police officer, by destroying evidence of body worn camera footage of an assault by his colleague on a tourist in a dark alley outside a nightclub and otherwise giving false accounts of what occurred, placed the interests of a colleague over his duty to protect the public. However, considered as a whole, the conduct the subject of the deception in Chadwick, was more serious. It involved an alleged serious assault by another officer of a member of the public unobserved by anybody else. The victim of the alleged assault suffered a bilateral fracture of the mandible; a fracture through the left jaw extending to the coronoid process; a fracture of the cheek bone and a fracture of the eye socket. The conduct of the officer in question involved the destruction of evidence by him in the form of the BWC footage of the alleged assault, the officer being untruthful in an interview about the incident and then, some six weeks after the alleged assault, making a statement under oath which was false in material respects. [17][2020] QCAT 66.