Crime and Corruption Commission v Assistant Commissioner MJ Keating

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Crime and Corruption Commission v Assistant Commissioner MJ Keating & Anor [2021] QCAT 419
PARTIES: CRIME AND CORRUPTION COMMISSION

(applicant)

v

ASSISTANT COMMISSIONER MJ KEATING

ANTHONY TRAGIS

(respondents)

APPLICATION NO/S:

OCR039-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 November 2021

HEARING DATE:

26 October 2021

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The decision of Assistant Commissioner MJ Keating dated 28 January 2020 to impose a sanction on Anthony Tragis of 12 penalty units to be deducted from Anthony Tragis’ pay at a rate of one (1) penalty unit per fortnight is confirmed.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where allegations of misconduct – where subject officer accepts the charges of misconduct – where disciplinary sanction imposed – where the Crime and Corruption Commission applies to review the sanction decision – where allegations of misconduct were found to be substantiated – where subject officer treated motorists with disrespect and abuse and failed to exercise discretionary legal power – whether sanction imposed is correct and preferable

Crime and Corruption Act 2001 (Qld), s 219A, s 219L, s 219P, s 219Q, s 452, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 66

Penalties and Sentences Regulation 2015 (Qld)

Police Service Administration Act 1990 (Qld), s 1.4, s 7.1, s 7.34.

Aldrich v Ross [2001] 2 Qd R 235

Briginshaw v Briginshaw (1938) 60 CLR336

Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169
Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151
Murray v Deputy Commissioner Stewart [2011] QCAT 583

O’Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12

APPEARANCES & REPRESENTATION:

Applicant:

P Price, Principal Lawyer for the Crime and Corruption Commission

Respondent:

MC O’Brien, Senior Legal Officer for the Queensland Police Service

TE Schmidt, Counsel for Anthony Tragis

REASONS FOR DECISION

  1. Between 9 December 2017 and 9 January 2018, inclusive, Senior Constable Anthony Tragis treated motorists with disrespect and abuse and inappropriately exercised discretionary legal power concerning a life-endangering offence when dealing with an off-duty police officer. Mr Tragis was working as a single-officer patrol at the relevant time of the conduct.

  2. Disciplinary charges for Mr Tragis’ conduct in 2017 and 2018, were presented by the Queensland Police Service (QPS).

  3. Mr Tragis accepted the two matters of misconduct and on 28 January 2020, the Assistant Commissioner imposed a sanction of 12 penalty units to be deducted from Mr Tragis’ pay at a rate of one penalty unit per fortnight. At the relevant time, the total amount of the fine was $1,601.40 (the sanction decision).[1] The Assistant Commissioner prepared written reasons for the sanction decision dated 28 January 2020.[2]

    [1]See the Penalties and Sentences Regulation 2015 (Qld), one penalty unit being $133.45 at the relevant time.

    [2]Exhibit 1.

  4. The Commission applies to review the sanction decision. The Commission argues that Mr Tragis’ conduct in general, and particularly his decision to give…

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Details
Case
[2021] QCAT 419
Decision Date

CaseChat Overview and Summary

In the matter of Crime and Corruption Commission v Assistant Commissioner MJ Keating, the court was asked to review a decision made by the Assistant Commissioner regarding the misconduct of an officer, Mr Tragis. The misconduct involved improper conduct towards motorists, including disrespectful and abusive language, and the inappropriate exercise of discretionary legal power in relation to a life-endangering offence. The facts of the case were largely undisputed and included several incidents where Mr Tragis displayed disrespectful and abusive behaviour towards motorists, failed to introduce himself as required by law, and did not explain payment and court election options to motorists. Additionally, there was an incident where Mr Tragis failed to issue a traffic infringement notice to an off-duty police officer, despite the officer’s speeding offence.

The legal issues before the court centred on whether the Assistant Commissioner's findings of misconduct were supported by the evidence and whether the proposed sanctions were appropriate. The court needed to determine if the misconduct was properly characterised and if the sanctions were commensurate with the severity and nature of the misconduct. The court also had to consider whether the Assistant Commissioner had acted within his jurisdiction and followed a fair process in reaching his decision.

The court found that the Assistant Commissioner's findings of misconduct were well-supported by the evidence. The court noted that Mr Tragis’s conduct was not only disrespectful and abusive but also violated established police protocols and policies. The court upheld the characterisation of the misconduct and agreed with the Assistant Commissioner's assessment of its severity. Regarding the sanctions, the court found that they were appropriate and proportionate to the misconduct. The court concluded that the Assistant Commissioner had exercised his discretion reasonably and in accordance with the law.

The final orders of the court were to affirm the findings of misconduct and the sanctions imposed by the Assistant Commissioner, thus upholding the decision in its entirety. The court found no grounds to interfere with the Assistant Commissioner’s determination and endorsed the measures taken to address the misconduct.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It is noncontroversial in the present matter that the allegations of misconduct found to be proven by the Assistant Commissioner are not challenged on review.[16] As discussed above, the relevant misconduct is characterised for Matter 1 as being improper conduct because Mr Tragis treated motorists with disrespect and abuse; and for Matter 2 the conduct was improper because he failed to exercise discretionary legal power inappropriately concerning a life-endangering offence.[17] It is convenient to set out below the factual background relevant to the two matters of misconduct summarised by the Commission in its written submissions that are also accepted by Mr Tragis (footnotes excluded):[18][16]Submissions on behalf of the applicant filed 6 July 2020, applicant’s submissions in reply filed 7 September 2020 and second respondent’s outline of submissions filed 11 August 2020, [14]. See decision on disciplinary finding and proposed sanction dated 28 January 2020, Exhibit 1.[17]Exhibit 1.[18]Ibid.Summary of FactsMatter 19. Matter 1 comprises the following events, all of which were recorded on the Second Respondent’s body worn video (BWV). This footage (with the exception of that which occurred on 10 December 2017) has been included in the section 21(2) material provided by the First Respondent to the Tribunal and parties.10 December 201710. At 3:48 pm on 10 December 2017, the Second Respondent intercepted a vehicle for speeding, and using a mobile phone. The Second Respondent questioned the driver (Motorist A) in relation to the offence, and then began a discussion about Motorist A’s faulty brake light. During the conversation, Motorist A made a comment about police working alone. The Second Respondent replied: “that’s why when people carry on, I’ve got Mr Yellow and Mr Black”, in reference to his taser and firearm.11. In addition, the Second Respondent disclosed to Motorist A the presence of flags for being anti-police, and rude/arrogant towards police on Motorist A’s record. He failed to introduce himself, by providing his name and station in accordance with the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), and also failed to explain payment and court election options to the motorist as required in the Traffic Manual.17 December 2017 12. At 12:22 pm on 17 December 2017, the Second Respondent intercepted an offending vehicle. In the process, an unrelated vehicle (Motorist B) pulled to the side of the road. Upon exiting his police vehicle, the Second Respondent yelled at Motorist B: “You… f*ck off!”.13. The Second Respondent then approached the driver of the offending vehicle (Motorist C), failed to identify himself as required by the PPRA, and began his conversation with Motorist C with the words: “You’re an idiot.” During the course of the interaction, he referred to a passenger as a “knucklehead” and told Motorist C that he was “driving like a spastic up here.” Some discussion then ensued about the use of the descriptor “spastic”, during which the Second Respondent said to Motorist C “You offend me, driving like a moron up here”. Upon issuing Motorist C with a traffic infringement notice (TIN), the Second Respondent also failed to explain payment and court election options as required by the Traffic Manual. 8 January 201814. At about 3:15 pm on 8 January 2018, the Second Respondent was working single officer patrols at Mount Coot-tha when he intercepted a blue car (Motorist D) in relation to a speeding offence. During the course of the Second Respondent’s interactions with Motorist D, tensions between the two increased, resulting in the Second Respondent pushing Motorist D, drawing a service issued Taser on the driver, and threatening him with it. Motorist D subsequently reported the Second Respondent’s use of force.15. The BWV recorded the Second Respondent raising his voice, shouting and swearing at Motorist D. When the Second Respondent drew his taser and aimed it at Motorist D’s back, he asked if the Second Respondent was going to shoot him. The Second Respondent’s reply was “No, I am going to f*cking taser you, you cock. F*cking moron.”16. In contravention of the QPS use of force policy concerning taser presentations, the Second Respondent failed to provide a warning to Motorist D prior to drawing and aiming his taser.17. In addition, he refused to show Motorist D the RADAR display, stating instead that Motorist D had been driving at 83 kms in a 60 km zone, but that the Second Respondent had only ‘locked him off’ at 75 kms. He then advised Motorist D that he intended to issue the TIN at the higher speed limit.18. Finally, he failed to explain the TIN at the point of issuing it to Motorist D, in contravention of the QPS Traffic Manual Policy 8.6.4. After issuing the TIN, the Second Respondent got in his car, waved at Motorist D, and blew him a kiss. He then drove behind Motorist D for approximately 2.5 minutes. Motorist D responded by placing his arm out of the car window, and extending his middle finger to the Second Respondent. In turn, the Second Respondent wound down his window, put his arm out of the window, waved at Motorist D and yelled out the open window: “Another ticket’s coming – see ya!”. He then issued the driver another TIN for limb protrude.Other occasions19. On five occasions, the Second Respondent failed to introduce himself to intercepted motorists, by providing his name and station as required by the PPRA.20. The Second Respondent admitted to all of the above allegations during his disciplinary interview. In relation to the requirements to identify and provide payment and court election options, he agreed that he did not comply, noting that at some stage, he had fallen into a “bad habit” and simply stopped providing this information.Matter 2 – 7 January 201821. On 7 January 2018 at 3:47 pm, the Second Respondent intercepted a red Ducati Motorcycle for travelling at 89km per hour in a 60 km zone. When the Second Respondent asked the rider to produce his driver’s licence, the rider (who was an off-duty QPS officer) allowed the Second Respondent to view his QPS badge. On viewing the badge, the Second Respondent said: “Ahh… really? You should know better”. He then engaged in some further discussion with the off-duty officer and let him go, without issuing a TIN.22. The Second Respondent again made full admissions to this conduct during his disciplinary interview. When questioned as to his motivation behind his decision not to issue a TIN to the off-duty officer, the Second Respondent was unable to provide any reason.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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