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 8APPEARANCES & REPRESENTATION:
Applicant:
Ms Z Valeska
First respondent:
Mr I Fraser, QPS Legal Unit
Second respondent:
Mr T Schmidt, counsel
REASONS FOR DECISION
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.
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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- Case
- [2022] QCAT 87
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.