Crime and Misconduct Commission v Assistant Commissioner J P Swindells - [2009] QSC 409

SUPREME COURT OF QUEENSLAND

CITATION:

Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409

PARTIES:

CRIME & MISCONDUCT COMMISSION
(applicant)
v
ASSISTANT COMMISSIONER J P SWINDELLS
(first respondent)
and
CONSTABLE PATRICK BRIAN GARDINER
(second respondent)
and
PETER J BYRNES, MEMBER, MISCONDUCT TRIBUNAL
(third respondent)

FILE NO:

9405 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

15 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2009

JUDGE:

Applegarth J

ORDER:

1. The decision of the Misconduct Tribunal made on 31 July 2009 to dismiss the applicant’s appeal in respect of matters 1 and 2 is set aside.

2. The matter is referred to the Queensland Civil and Administrative Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where misconduct tribunal finds charges of misconduct against a police officer of use of excessive force against detainees unsubstantiated – whether tribunal erred in taking a “compartmentalised” view of the evidence that directly related to each complainant and failed to give weight to the probative value of evidence of multiple, similar allegations from unconnected complainants – whether the tribunal erred in applying a standard of proof higher than the civil standard

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where evidence that police officer slapped handcuffed detainee in the face – where another police officer sees the second respondent standing over the detainee with hand raised and hears him say “I’ll slap you again” – where tribunal concludes in effect that use of the word “again” not compelling evidence that the second respondent had previously slapped detainee – whether conclusion that complaint unsubstantiated so unreasonable that no reasonable tribunal could have reached it – whether tribunal’s conclusion indicative of error of law in applying standard of proof higher than the civil standard

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where evidence that the second respondent threw a handcuffed detainee on his chest onto the floor of a police station – whether the tribunal provided adequate reasons in respect of the incident and legal justification for the use of force

Judicial Review Act 1991 (Qld), s 20, s 20(2)(e), s 20(2)(f), s 23(a), s 23(b), s 23(g)
Misconduct Tribunals Act 1997 (Qld), s 23(2)(a)
Police Powers and Responsibilities Act 2000 (Qld), s 615
Queensland Civil and Administrative Tribunal 2009 (Qld), s 247, s 248, s 252(1)

Aldrich v Ross [2001] 2 Qd R 235, cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, cited
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, cited
Bruce v Cole (1998) 45 NSWLR 163, applied
Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343, cited
Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462, cited
Hill v Green (1999) 48 NSWLR 161, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited
Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154, cited
Minister for Immigration and Multicultural Affairs v Eshetu 197 CLR 611, applied
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, cited
Purnell v Medical Board of Queensland [1999] 1 Qd R 362, cited
Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002 (2003) 198 ALR 59, cited
Rejfek v McElroy (1965) 112 CLR 517, cited
Res 1 v Medical Board of Queensland [2008] QCA 152, cited
Waterford v The Commonwealth (1987) 163 CLR 54, cited
Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272, cited

COUNSEL:

P J Callaghan SC and G P Long SC for the applicant
L Burrow for the first respondent
B W Farr SC for the second respondent

SOLICITORS:

Official Solicitor, Crime and Misconduct Commission for the applicant
Office of the Queensland Police Service Solicitor for the first respondent
Gilshenan & Luton Legal for the second respondent

The applicant seeks judicial review pursuant to s 20 of the Judicial Review Act 1991 (Qld) (JRA) of a decision of the third respondent, who constituted a Misconduct Tribunal under the Misconduct Tribunals Act 1997 (Qld) (MTA).[1] The tribunal on 31 July 2009 found that two charges of misconduct against the second respondent, a police constable, had not been substantiated. The first charge was that between 29 June 2004 and 1 October 2004 the second respondent’s conduct was improper in that he used excessive force against diverse persons, whilst they were being held in police custody and restrained by handcuffs. The second charge was that between 2 July 2004 and 17 August 2004 the second respondent’s conduct was improper in that he used excessive force against diverse persons, whilst they were being held in police custody.
[1]The MTA has since been repealed. The Misconduct Tribunal was abolished by s 247 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and s 248 provides that the Queensland Civil and Administrative Tribunal (QCAT) is the successor to it. Section 252(1) provides that the decision of the Misconduct Tribunal is taken to be a decision of QCAT.

At the original disciplinary hearing on 2 July 2007 a third charge was “accepted” by the second respondent, but with “significant matters of mitigation and explanation ... to be put forward”. The third charge was that on 13 September 2004 the second respondent’s conduct was improper in that he removed handcuffs from Cain Revell, a person in police custody, and enticed him to engage in a fight with the second respondent. On 30 November 2007 the first respondent, as Assistant Commissioner of Police, delivered his decision in the original disciplinary proceedings. He found that the first two matters had not been substantiated. He found that the third matter had been substantiated but ordered that no sanction be imposed.

The first respondent erroneously stated that the standard of proof “must be to the criminal standard”. The tribunal found that the first respondent erred in applying the criminal standard. Rather than return the matter to the original decision-maker, the tribunal proceeded to determine the contested charges. As a consequence, the tribunal was required to make its own decision on the available evidence in accordance with the principles expressed by Thomas JA in Aldrich v Ross.[2]
[2][2001] 2 Qd R 235.

The charges of misconduct and the hearing before the tribunal

The charges of misconduct against the second respondent were formally particularized as follows:

Charge 1
1.That between 29 June 2004 and 1 October 2004 at Brisbane your conduct was improper in that you:
(a)     used excessive force against diverse persons, whilst they were being held in police custody and restrained by handcuffs.
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
·   On 30 June 2004 at the Brisbane Central Mall Beat Office you slapped Matthew Francis in the face with your hand.
·    On 11 September 2004 you punched Bojan Vukovic in the body at the Brisbane City Botanical Gardens.
·   On 11 September 2004 you kicked Bojan Vukovic in the body whilst he was handcuffed at the Brisbane City Botanical Gardens.
·    On 13 September 2004 you threw Cain Revell across the floor at the Brisbane City Beat Office.
·    On 28 September 2004 you kicked Barry Ludwig in the body at the Brisbane City Beat Office.
·    On 28 September 2004 you punched Barry Ludwig in the body at the Brisbane City Beat Office.
·    On 28 September 2004 you slapped Barry Ludwig across the face with an open hand at the Brisbane City Beat Office.
·    On 30 September 2004 you slapped Joseph Gracia across the face with an open hand at the Brisbane City Beat Office.
·   On 30 September 2004 you punched Joseph Gracia in the head with your hand at the Brisbane City Beat Office.

Charge 2
2.That between 2 July 2004 and 17 August 2004 at Brisbane your conduct was improper in that you:
(a) used excessive force against diverse persons, whilst they were being held in police custody.
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]

Further and better particulars
·    On the 3 July 2004 you punched Scott Douglas in the body at the Brisbane City Beat Office.
·    On 16 August 2004 you forced Grant Alexander’s face onto a wall at the Brisbane City Beat Office.
·    On 16 August 2004 you kicked Grant Alexander in the body at the Brisbane City Police Beat Office.
·    On 16 August 2004 at Brisbane you punched Grant Alexander in the body at the Brisbane City Beat Office.

Charge 3
3.That on 13 September 2004 at Brisbane your conduct was improper in that you:
(a) removed handcuffs from Cain Revell, a person in police custody, and enticed him to engage in a fight with you.
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]

The volume of material placed before the tribunal in order to conduct the appeal by way of rehearing was massive. The matter was complicated by a jointly heard appeal involving an allegation of improper conduct against another police officer which arose out of the same events on 11 September 2004 involving Mr Vukovic. The written material before the tribunal consisted of more than 5,500 pages. This volume is explicable, in part, because there were seven persons against whom the second respondent was alleged to have used excessive force and because of the number of particulars in support of the first two disciplinary charges. There were 15 volumes of written material in excess of 4,350 pages. There were audio tapes and miscellaneous documents. The written material included transcripts, some parts of which were hard to follow due to difficulties in transcribing recordings.

The resolution of the appeal to the tribunal was assisted by outlines of argument from the parties and summaries of the evidence relied upon by the applicant organised in respect of each person against whom the second respondent was alleged to have used excessive force. However, this assistance did not relieve the third respondent of the burden of reviewing such a large volume of material. His task in resolving disputed questions of fact and issues of credit was not made any easier by being required to make findings “on the papers” without the benefit of seeing the witnesses give evidence. As the third respondent observed in respect of the challenge confronting him in conducting such an appeal “on the papers”:

“... I have been required to make assessments of various witnesses’ credit on this basis, in a significant number of matters which could be described as quite crucial.”[3]

[3]Reasons for Decision of the Tribunal dated 31 July 2009 (hereinafter referred to as “Tribunal Decision”) paragraph 135; Exhibit DTM-00 to the affidavit of Dominique Murphy filed 1 October 2009 (Court File Index No (“CFI”) 7).

The initial tribunal hearing on 29 and 30 January 2009 dealt with a number of significant legal issues. Written submissions subsequently were received and a further hearing was held on 22 May 2009. The decision was delivered on

31 July 2009. The third respondent’s conscientious attention to detail is apparent from the decision which runs to 123 pages of single spaced type, consisting of 584 paragraphs. Its completion in such a relatively short time, including footnoted references to transcript and other evidence, is a testament to the dedication of the third respondent. In accordance with usual practice, the third respondent played no active part in these proceedings. The first respondent was formally represented at the hearing before me, but made no submissions.

Grounds for judicial review

The applicant’s grounds for judicial review are that the decision involved an error of law[4] and was an improper exercise of power.[5] Those grounds were further particularised in the applicant’s outline of submissions. As is often the case in judicial review proceedings, there is some overlap in the grounds for judicial review: for instance, matters relied upon as amounting to an error of law also are advanced as involving an improper exercise of power. It is convenient to deal with the matters under the same headings and in the same order as the parties’ submissions. These may be summarised as:
[4]JRA s 20(2)(f).
[5]JRA s 20(2)(e).

(1)failure to consider all relevant evidence, particularly in taking a “compartmentalised” view of the evidence, rather than a more “compendious” approach;
(2)applying a standard of proof that was higher than the balance of probabilities;
(3)insufficiency of reasons in respect of findings of use of justified or lawful force;
(4)reaching a decision that was so unreasonable that no reasonable person could have made it;
(5)failing to take relevant considerations into account.

Limits on judicial review

The Judicial Review Act does not make the Supreme Court a merit review tribunal.[6] In Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002[7] Kirby J stated:
[6]Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343 at 346–347.
[7](2003) 198 ALR 59 at 84 [114].

“Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a relitigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power.” (citations omitted)

As Brennan J (as his Honour then was) stated in Waterford v The Commonwealth:[8] “There is no error of law simply in making a wrong finding of fact.” In Australian Broadcasting Tribunal v Bond[9] Mason CJ stated that:

“a finding of fact will ... be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing”.

[8](1987) 163 CLR 54 at 77.

[9](1990) 170 CLR 321 at 359–360. As to the application of grounds of review for “error of law” and “no evidence” see Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002 (supra) at 72 [57] and Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 238–239 [48]–[52].

The distinction between errors of fact and law arises in different legal contexts. In the context of appeals on questions of law or appeals that are dependent upon demonstrating an error of law, it has been said that a finding of fact does not amount to an error of law if the finding “is perverse, that it is contrary to the overwhelming weight of the evidence, that is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it”.[10] Whatever may be the position in relation to perverse findings of fact in the context of appeals limited to “errors of law”, in the context of judicial review I respectfully adopt the view that a decision-maker who acts “perversely”, namely without probative evidence, does not make a valid decision.[11]
[10]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155–156. The status of Azzopardi and its application to cases of judicial review is “problematic”: see Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 at 174 [71]; see also Aronson Dyer and Groves 4^th ed 4.105–4.115.
[11]Bruce v Cole (1998) 45 NSWLR 163 at 189.

In Minister for Immigration and Multicultural Affairs v Eshetu[12] a submission invoking the Wednesbury principle was made in contending that the Refugee Review Tribunal’s conclusion was so unreasonable that no reasonable tribunal, acting within jurisdiction and according to law, would have come to such a conclusion. Gleeson CJ and McHugh J questioned whether the suggested error was of the kind to which the Wednesbury principle was directed.[13] Gummow J concluded that the Wednesbury principle related to the exercise of discretionary power.[14] His Honour, however, recognized the scope for review of “findings or inferences of fact which were not supported by some probative material or logical grounds”.[15] Whether treated as an application of the Wednesbury principle to what is alleged to be a perverse factual conclusion, or as a separate but similar principle that permits judicial review of findings of fact for extreme irrationality or illogicality, perverse factual conclusions are open to judicial review. However, the scope to challenge irrational or illogical fact-finding is limited. As Gleeson CJ and McHugh J stated in Eshetu:[16]

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”

[12](1999) 197 CLR 611.

[13]Ibid at 626 [40].

[14]Ibid at 648–650 [122]–[127].

[15]Ibid at 657 [145]–[147].

[16]Supra at 626 [40]. As to want of logic in the drawing of inferences see Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272at 294–296 [97]–[99].

There are strong grounds to conclude that “Wednesbury unreasonableness” relates to the exercise of discretionary power and is not available to challenge unreasonable findings of fact.[17] Another view is that Wednesbury unreasonableness remains available to challenge findings of fact but that, in practical terms, it “will be largely confined to review of discretionary decisions.”[18] Whether described as Wednesbury unreasonableness, or review on the grounds of illogicality or irrationality, judicial review of findings of fact is subject to demanding requirements if a challenge is to succeed. It is not sufficient that the decision is unreasonable in the sense of being against the overwhelming weight of the evidence. It must be perverse or capricious, for instance, because there was no probative evidence to support it.
[17]The arguments are essayed in Aronson Dyer and Groves Judicial Review of Administrative Action 4^th ed [4.405]–[4.435], [5.75] and [6.275].
[18]Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 584 [562].

Whether such a finding of fact constitutes an “error of law” falls to be determined in the context of statutory judicial review rather than in a constitutional setting or in the context of an appeal in which rights of appeal only arise in respect of “errors of law”.[19] In the context of judicial review under the JRA it is possible to characterise a finding of fact that is perverse as involving an improper exercise of power.[20] It is also possible to characterise such a perverse finding of fact as involving “an error of law” within the meaning of s 20(2)(f) of the JRA. This is because where reasons for decision demonstrate manifest error or indicate “such an unexplained perversity as to suggest that an error has taken place” in the process of decision-making, an error of law may be established.[21]
[19]Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002 (supra) at 71–73 [53]–[60].
[20]See Eshetu (supra) at 626–627 [39]–[41] per Gleeson CJ and McHugh J, and s 23(i) of the JRA which includes as an improper exercise of power “any other exercise of a power in a way that is an abuse of the power”.
[21]Azzopardi v Tasman UEB Industries Ltd (supra) at 151 per Kirby P, who dissented in respect of the definition of an error of law in the context of a statutory appeal.

The important distinction between errors of fact and law does not preclude judicial review of findings of fact. Findings of fact are not open to review on the grounds of irrationality or illogicality simply because the process of reasoning is open to compelling criticism or the conclusion reached is one which most reasonable decision-makers would not reach. A factual conclusion, however, will be invalid in circumstances in which it is not reasonably open to the decision-maker acting according to law on the basis of probative evidence. Expressed in terms of the principle of legal authority that underlies judicial review and the doctrine of Wednesbury unreasonableness, a statutory power to decide does not authorise a “perverse decision” or, more specifically, a factual conclusion which no reasonable person could have reached.[22] Expressed in terms of “error of law”, the decision may be one which it would not be possible to reach on the basis of probative evidence without committing a legal error. In that regard, the decision must be one which would not be open upon the application of a legal test, or a required legal standard, such as the standard of proof, to the probative evidence that is accepted by the decision-maker.

Taking a “compartmentalised” view of the evidence and not considering the “logical probity” of separate allegations

[22]Hill v Green (1999) 48 NSWLR 161 at 213 [245].

On the first day of the hearing before the tribunal a significant issue arose in relation to what was conveniently, but loosely, referred to in submissions by the applicant as “similar fact evidence”. Counsel for the applicant criticised the first respondent as having “approached his task on the basis of separate and distinct considerations of each particularised incident” and, consequently, having failed to properly appreciate, amongst other things, that “these allegations related to a course of improper conduct connected to the duties performed by the second respondent, over a relatively short period of time and when he was stationed at the City Beat”. The same issue arose before the tribunal which was required to consider a number of separate allegations from several unconnected complainants that they were subjected to the use of excessive force by the second respondent. The applicant submitted that the tribunal should not adopt a “compartmentalised” approach involving reference only to the evidence directly relevant to particular allegations, but should have regard to the evidence “more compendiously”. Submissions were made by the applicant concerning the applicable principles, and the second respondent did not take issue with them.

The law with respect to the admissibility of similar fact evidence in criminal trials cannot be directly transposed to disciplinary proceedings.[23] In the context of disciplinary proceedings of the present kind, the issue is the probative value of evidence as to similar incidents. The probative value of such evidence lies in the improbability of witnesses giving accounts of happenings having a degree of similarity unless the events occurred.[24] In Purnell v Medical Board of Queensland[25] Mackenzie J stated:

“Ultimately the question is whether the inference that the act complained of was committed upon the complainant can be properly drawn having due regard to the standard of proof applicable to the kind of case before the court or tribunal. Where credibility of a complainant’s evidence is in issue the fact that complaints of similar acts have been made by other persons can provide strong support of the complainant’s evidence in the absence of any factors diminishing the strength of the inference logically available from the fact that they were made independently of and unaffected by the complainant’s own account.”

[23]Purnell v Medical Board of Queensland [1999] 1 Qd R 362 at 368–369.

[24]Ibid at 369 citing Pfennig v The Queen (1995) 182 CLR 461 at 482.

[25]Supra at 380.

In this matter, the applicant identified to the tribunal certain matters which were submitted to display “underlying characteristics of similarity”. The tribunal dealt with each of them and reached conclusions that were reasonably open to it concerning their lack of probative value. The matters relied upon by the applicant were:

·All incidents, except that involving Vukovic, occurred at the Beat Office where the Second Respondent was stationed;
·Each act occurred when an arrested offender was vulnerable or, at least, not a physical threat to any police officer (and often when handcuffed or otherwise restrained);

·The acts occurred in response to “verbal banter” and/or after an offender had to be physically restrained; and

·Often the second respondent intervened in relation to persons in whose arrest he was not directly involved.[26]

The first point was unremarkable. As the tribunal observed, “it is not surprising that they are alleged to have happened in the place where [the police officer] is stationed.” The second and third points were addressed by the tribunal, which noted that in the case of some complaints there were indications that the complainant was not compliant. The fourth point was not particularly probative. The fact that the second respondent intervened in one case in circumstances in which other officers who were more directly involved were unwilling to arrest a person, and on other occasions proactively went to the assistance of inexperienced police officers is not extraordinary. The tribunal concluded that such actions “represented effective policing and, indeed, appears to have been encouraged by the ‘team’ structure adopted in the beat office”.[27]

[26]Tribunal Decision [108].

[27]Tribunal Decision [113].

In response to the applicant’s submission that “regard may be had to the multiplicity of such allegations, which come from diverse and unconnected sources”, the tribunal acknowledged that there appeared to be no links amongst the seven persons against whom the second respondent was alleged to have used excessive force, but observed that describing them as coming from diverse sources “misses the link that all of them had come to the notice of the police and were being dealt with by the police for offences in respect of which, subsequently, they either pleaded guilty, or were found, guilty”. This observation about the identity of complainants was correct. However the point remains that, by their nature, allegations of excessive force by police against detainees in police stations are likely to come from persons who have come to the notice of police and are dealt with behind closed doors, not from a diverse range of citizens who do not come to police attention. The weight to be given to similar allegations by persons who were dealt with by police for offences was a matter for the third respondent.

Particular reliance was placed by the applicant on the fact that in separate episodes the second respondent was alleged to have said to different individuals words to the effect:

“I get so many complaints mate, and I’m still here doing what I do. You’re going to have to do something more than complain mate.”

The tribunal observed that such a statement could have been made by the second respondent in response to an arrested person’s remonstrating with him, even if he had been using an appropriate level of force with which to restrain the arrested person. It continued:[28]

“The statement, by itself, does not demonstrate that the second respondent was using excessive force in respect of that person. The second respondent’s alleged propensity for making a statement of this kind may demonstrate a certain cavalier attitude, even an element of bravado, and while both of these may be inappropriate, his propensity for making them does not go very far, even when taken with the other evidence, in demonstrating to the requisite standard that he had used excessive force in those situations.”

[28]Tribunal Decision [119].

In these proceedings the applicant complains that the tribunal’s approach to such similar statements portrayed a “compartmentalised” approach. It pointed to an exchange that was recorded on a police micro-cassette in which a Mr Naughton complained to the second respondent that he had picked up Mr Revell off his chair and thrown him on the ground:

“Naughton: You didn’t have to pick him up and throw him on the ground.
Gardiner: You go and make your shitty complaint because I don’t care, right, because I’ve had hundreds of complaints and I’ve still got a job mate.”

The applicant submitted that this piece of evidence had a particular significance in relation to all matters and the tribunal was in error in concluding that it, and similar statements made by the second respondent, did not demonstrate a propensity for using excessive force. The applicant argues that apart from reflecting adversely on the complainant’s credibility, the making of such statements discloses an attitude towards complainants. The tribunal might have attached more weight to these statements than it did as showing, not simply a propensity for making statements indicating an indifference to complaints about his use of force, but as showing a propensity to use excessive force, safe in the knowledge that such complaints posed no threat to his employment. Logically, the statements in question might be made by a police officer who did not use excessive force and who wished not to be vexed by unmeritorious complaints. Ultimately, the weight to be accorded to such statements was a matter for the tribunal.

The applicant’s principal submission is that, despite acknowledging the test of “logical probity” referred to in Purnell v Medical Board of Queensland, the tribunal declined to apply this test to a consideration of the evidence, and this is said to be shown in paragraph 121 of its reasons:

“I have reflected on this issue of whether evidence of the overall conduct of the second respondent, as revealed in the circumstances of each of the complaints, should be considered ‘compendiously’, to use the expression of counsel for the appellant also at the hearing, and have come to the conclusion that the weight I would accord such evidence is significantly reduced by the realisation that the very nature of police work and the general characteristics of the persons they deal with on a regular basis, especially, as is the case here, in ‘front-line’ inner-city police establishment (sic) in a state metropolis, are factors which give rise to large numbers of complaints of varying degrees of substance. To my mind, this makes it necessary to focus on the actual evidence adduced to substantiate each complaint. This understanding is reinforced by the approach I have outlined below as to the requisite degree of satisfaction in the context of the standard of proof adopted in this matter by the Tribunal.” (citations omitted)

I do not consider that this paragraph of the tribunal’s reasons shows that it declined to adopt what the applicant describes as a “compendious approach” to the consideration of the allegations. Instead, it indicates that the tribunal considered that the weight that should be accorded to evidence of similar allegations was “significantly reduced”.

There was no evidence before the tribunal concerning the number of complaints made against “front-line” inner-city police, and whether the second respondent was subject to more complaints than most other officers performing those duties. The tribunal was not bound by the rules of evidence[29] and cannot be criticised for operating on the assumption that police patrolling the inner city and who arrest drunken and disorderly individuals may be subject to a large number of complaints “of varying degrees of substance.” The issue was not the number of complaints of varying degrees of substance made against police in general, but the probative value of the complaints in the present case, which the second respondent did not contend were frivolous or vexatious or wholly lacking substance. It would have been open to the tribunal to place substantial weight upon the making of similar allegations of excessive force against the second respondent, being allegations which came from independent persons, as logically probative of a propensity on the part of the second respondent to act with excessive force. Before doing so, it might have considered the prevalence of such complaints against police officers who undertake the difficult task of dealing with street offences that are often committed by drunk and disorderly individuals. Too much weight might be given to the simple fact that a particular police officer was the subject of several similar complaints, being complaints that appeared to the investigating authorities to be of sufficient substance to justify charges of misconduct. The number of complaints might be explained by the number of arrests made by an officer, a relatively forceful approach by a particular police officer in dealing with difficult situations or other factors. However, it might also be indicative of a propensity to use excessive force. The tribunal did not say that it attached no weight to such propensity evidence. Ultimately, the weight that it gave to such evidence was a matter for it.
[29]MTA s 23(2)(a).

In the course of the tribunal’s lengthy reasons there was no specific reference to such evidence in determining specific allegations. This led Mr Callaghan SC for the applicant to submit that rather than giving such evidence “significantly reduced” weight, its weight was reduced “to vanishing point”.[30] The absence of specific reference to this propensity evidence in dealing with the separate allegations is consistent with a “compartmentalised approach” in which no weight was given to separate, similar allegations. However, I proceed on the basis that the tribunal approached the task of fact finding as it indicated in paragraph 121 and, in doing so, placed some weight on such evidence. The decision to not accord such evidence substantial weight does not constitute an error of law. Nor can the tribunal’s approach to the issue of “similar facts” amount to an improper exercise of power in taking an irrelevant consideration into account, or in failing to take relevant considerations into account, as the applicant submits. It is unnecessary to dwell upon the issue of whether such evidence constitutes a relevant consideration as that term is understood in administrative law. Consideration was given to it and the weight to be given to it was a matter for the tribunal. It is generally for the decision-maker and not the Court to determine the appropriate weight to be given to matters which are required to be taken into account.[31]
[30]Transcript of hearing 19 November 2009 1-9 l 10.
[31]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.

The applicant’s first ground of challenge fails.

Standard of proof

The applicant submits that although the tribunal found that the first respondent had erred in applying the criminal standard of proof, the tribunal also erred in law in applying to its own consideration of the evidence a standard of proof that was higher than the balance of probabilities. This is said to appear in the concluding paragraph of its reasons in relation to the standard of proof to be applied by it:[32]

“In making my findings in this appeal, I have, of course, applied the Briginshaw principle, as expressed by Dixon J., but I would note that the degree of satisfaction that I have imposed in arriving at a position of being reasonably satisfied as to the relevant facts is very much towards the higher end of the scale as the seriousness of the allegations, involving, as they do, accusations of “police bashings”, again to use the common parlance, to my mind warrants this. Further, the consequences for the second respondent, in the event that these allegations were to be substantiated, would be, potentially, most serious in that he would be liable to dismissal from the police service.”

[32]Tribunal Decision [131].

This paragraph and the other parts of the reasons in relation to the standard of proof make it clear that the tribunal understood that it was required to apply the civil standard of proof. Reference was made by the tribunal to the “effect of the qualifications to the civil standard of proof” enunciated by Dixon J in Briginshaw v Briginshaw[33] and, taken in isolation, this might suggest that the tribunal apprehended that some higher standard than the civil standard of proof was required. However, in its context in paragraph 129 of the reasons the reference should be understood as referring to the fact that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.[34] The passage cited from Rejfek v McElroy by the tribunal makes clear that there are two distinct standards:[35]

“But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words; it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”

[33](1938) 60 CLR 336 at 361–362.

[34]Being a reference to Rejfek v McElroy (1965) 112 CLR 517 at 521.

[35]Ibid at 521–522.

The tribunal referred to what was said to have been expressed in common parlance as a “sliding scale” in respect of the reasonable satisfaction principle. Such a phrase is possibly ambiguous in suggesting that “the higher end of the scale” (to use the expression in paragraph 131 of the reasons) is virtually the criminal standard of proof. However, expressions such as “high end of the scale” are used in respect of proof of serious allegations in civil proceedings.[36] Given his familiarity with and exposition of the relevant principles in relation to the standard of proof to be applied by the tribunal, I do not accept that the third respondent was mistaken in his formulation of the standard to be applied.
[36]See, for example, Cross on Evidence Australian ed [9050].

The applicant argues in the alternative that if the tribunal did not err in its formulation of the standard of proof, a perusal of its reasons indicates that it erred in its actual application of that standard in its assessment of the evidence. This submission is said to be demonstrated by a consideration of:[37]
[37]Tribunal Decision [23].

“(a)the extent to which the decision is the result of an (sic) a search for reasons to have doubts about the general reliability of the evidence of witnesses, as relied upon by the Applicant;
(b)the extent to which the decision is a result of putting aside evidence from sources that were not completely independent of the complainants, expecting that corroboration was required and/or that this required evidence that was directly confirmatory of the allegation in question;

(c)the analysis of each of the aspects of the matter referred to below under the headings ‘Improper Exercise of Power – Unreasonable Decision’; and

(d)the manner of rejection of MacKinney’s evidence in respect of the Ludwig allegations and the rejection of the allegation supported by Grainger’s evidence and in respect of Alexander are each indicative of a ‘benefit of the doubt’ approach or at least the application of a higher standard of proof than balance of probabilities.” (citations omitted)

These submissions invite consideration of the reasons as a whole and the particular aspects which the applicant relies upon in support of its contention that the decision to find that neither charge was substantiated is so unreasonable that no reasonable person could have made it.

Consideration of the reasons as a whole indicates that the tribunal adopted a rigorous approach to the evidence of witnesses upon which the applicant relied. But this does not necessarily demonstrate insistence upon proof beyond reasonable doubt. Rather than deal with the reasons globally, the preferable course is to focus upon particular aspects upon which the applicant relies and to determine whether they permit the conclusion to be reached that the tribunal’s conclusions could only have been reached by applying a standard of proof that was higher than the balance of probabilities. These aspects will be considered in the course of considering the other grounds of review.

Alleged insufficiency of reasons in respect of findings of use of justified or lawful force

The MTA, in dealing with the tribunal’s appellate jurisdiction, does not address the requirement of reasons. However, the parties accept that the tribunal had a duty to give reasons, and this position accords with authority.[38] The content of the duty to give reasons is circumscribed by the matters in issue between the parties.[39] The broad principle is that the decision-maker is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made.[40] Particular complaint is made by the applicant concerning the adequacy of reasons in respect of findings about the use of justified or lawful force in instances in which the tribunal found that the second respondent used force. Early in its reasons the tribunal discussed important legal issues concerning the extent of police power to use force. It canvassed matters such as the “Situational Use of Force Model” and aspects of police training before turning to relevant statutory provisions including the provision which is now s 615 of the Police Powers and Responsibilities Act 2000 and s 283 of the Criminal Code in relation to excessive force. Paragraph 80 of the reasons indicate that the extent of police power to use force was to be considered “in the context of each of the individual allegations against the second respondent.” The applicant correctly submits that in cases in which the second respondent was found to have used force it was necessary for the tribunal to identify a source of the power which justified its use. The applicant submits that the tribunal did not do so when providing its conclusions in respect of certain allegations.
[38]Res 1 v Medical Board of Queensland [2008] QCA 152 at [14].
[39]Ibid at [15].
[40]Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 at 476–479, 482–485.

Before turning to individual cases, I should deal with the general submission made by the second respondent that the tribunal’s reference to s 615 (at the relevant time s 376) of the Police Powers and Responsibilities Act 2000 was a sufficient reference to the source of legal justification for the use of force. I accept the second respondent’s submission that the identification of s 615 had general application to the entire decision. The third respondent was not required to repeatedly refer to it. Section 615 provides:

“615 Power to use force against individuals
(1) It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.
Example-
A police officer may use reasonable force to prevent a person evading arrest.
(2) Also, it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.
(3) The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death.”

Section 615(1) does not itself confer a power. Instead, it authorises the use of reasonably necessary force in the exercise or attempted exercise of a power that is elsewhere conferred on a police officer.

In giving reasons about the use of justified or lawful force in respect of each individual case in which the tribunal found that the second respondent had used force against a complainant, the tribunal was not required to essay at length the legal justification for the use of force. For instance, if the use of force was justified or lawful by way of self-defence, the tribunal was not required to essay at length the elements of self-defence under s 271 of the Criminal Code. It was sufficient for the reasons to state in a summary way the circumstances that justified the use of force by way of self-defence. Similar observations apply to the use of force to effect an arrest or to prevent the person from escaping from lawful custody. However, it was necessary to identify the power being exercised and the circumstances that justified the exercise of that power.

The following account of the facts of individual cases is largely based upon the tribunal’s reasons for decision.

Revell

On 13 September 2004 Mr Revell and an associate (Naughton) were drunk in the city. Revell was arrested for causing a public disturbance in the early hours of 13 September 2004. Naughton was arrested shortly afterwards for obstructing police when he intervened on Revell’s behalf. After being arrested they were taken to the Police Beat in handcuffs and seated on chairs. It was at this time that the incident that gave rise to the third charge against the second respondent occurred. There was ample evidence that Revell and Naughton displayed disruptive and aggressive behaviour in the day room at the police station. Naughton later recalled that when Revell was “gobbing off” the second respondent grabbed him while he was handcuffed and “threw him ... only a few metres across the room.” A micro-cassette recording by a police officer named Birchley records Naughton saying to the second respondent “You picked him up off the chair and threw him on the ground”, to which the second respondent replied “If you’re behaving like dickheads [unidentified over talking].” Naughton repeated “You didn’t have to pick him up and throw him on the ground”, to which the second respondent responded, as earlier quoted, in respect of making complaints. Importantly, the second respondent did not deny at the time having picked up Revell and thrown him on the ground.

Another police officer named Wilson was interviewed about the incident on

7 February 2005 and gave the following account of the second respondent’s actions:

“... he just walked straight up to him, just walked up and grabbed him ... by both arms ... picked him up ... and walked him across and threw him onto the ground, onto the chest in that corner ...”

The reference to “the chest” should be understood as referring to Revell’s chest.[41]

[41]Transcript 19 November 2009 1-34 ll 10–20 at which this point was clarified, namely that the reference to the chest was not to an object such as a tea chest.

When the second respondent was interviewed he stated that Revell and Naughton were baiting each other and him, and that he separated them in an attempt to deal with them. He described his actions as follows:

“I basically picked him up off the chair and it was a forceful walk but it was by no means a throw or a – I didn’t throw him to the ground, I didn’t trip him, I didn’t do anything like that but I basically sort of – it would have been a bit of a pull out of the chair, a bit of a – never actually physically shoved him so he went flying but a bit of a by the shirt, shake, sit down in the corner, sit on the floor and behave yourself.”

and:

“I did not pick him up and throw him across the room. It was then I removed him out of the chair, I lifted him up, basically pulled him over and walked him over to the corner near the photocopiers and sat him down and said sit there and be quiet, I’ve had it.”

The second respondent said that he moved Revell about “three metres, if that”.

The particular of the first charge that related to Revell was that the second respondent threw him “across the floor at Brisbane City Beat Office”. The tribunal interpreted the second respondent’s statements in police interviews as consistently denying that he “threw” Revell. It did not refer to officer Birchley’s recording of Naughton’s complaint at the time about a throw and the absence of a denial from the second respondent at the time that he threw Revell on the ground. In reaching a conclusion in respect of the incident involving Revell the tribunal gave the following reasons:

“303. In coming to a conclusion as to whether the second respondent ‘threw’ Revell, there are the consistent and firmly expressed denials of the second respondent as against the evidence of Naughton and Wilson. Naughton, on his own admission, was very much under the influence of alcohol and, since the accuracy of his recollection must be questioned, because of his state, in relation as to whether the second respondent actually threw Revell, it might be what he had in mind could have been something approaching the second respondent’s description.

304.      Wilson’s description, namely, the section (sic) respondent’s actions were ‘borderline inappropriate’, ‘not an extreme reaction’ and not ‘a terrible thing’, does not sit easily with the concept of his engaging in a fully fledged throw. To throw someone across a room, in the mind of an observer, would seem to warrant a much stronger depiction of the event than that given by Wilson.
305.      I find that, on the standard of proof I have formulated, the second respondent did not throw Revell across the room in the sense conveyed by the relevant particular in support of Matter One.
306.      In hindsight, while the actual steps he took in this regard might be regarded as not being the most appropriate, I am, nevertheless, of the view that the second respondent was justified in doing what he did, on his version, in order to maintain order and an appropriate level of restraint in relation to Revell and to take proactive steps to counter any threatening conduct on the part of Revell as described by Wilson.
307.      Accordingly, I find the allegations against the second respondent in respect of Revell have not been substantiated.”

The finding made in paragraph 305 is problematic in stating that the second respondent did not throw Revell across the room “in the sense conveyed” by the relevant particular. The particular does not refer to a throw in any particular sense or state that the throw was over a certain distance. Paragraph 305 is somewhat ambiguous. On one reading and in the context of paragraph 304 it amounts to a finding that the second respondent threw Revell across the room but did not do so by way of “a fully fledged throw” (whatever that means). It is sufficient to observe that the particular of misconduct does not refer to “a fully fledged throw”. It simply alleges that the second respondent threw Revell across the floor. Unfortunately, paragraph 305 is an inadequate statement of the tribunal’s reasons in determining the throw that occurred. At least one thing is reasonably clear. The tribunal did not find that the second respondent did not throw Revell. If it had found that the second respondent did not throw Revell then the finding in paragraph 305 would have been different, and possibly ended at the word “room”. Paragraph 305 does not state at all clearly what the second respondent did by way of a throw. This, in turn, leads to an inadequacy in the reasons given in paragraph 306 in which the tribunal concludes that

“the second respondent was justified in doing what he did, on his version, in order to maintain order and an appropriate level of restraint in relation to Revell and to take proactive steps to counter any threatening conduct on the part of Revell described by Wilson”.

The reasons do not disclose precisely what the second respondent did “on his version”. On the second respondent’s version, as interpreted by the third respondent, the second respondent did not throw Revell at all.

The evidence of Wilson, which appeared to command the tribunal’s acceptance, was that the second respondent threw Revell “onto the ground, onto the chest in that corner”. The second respondent did not deny Naughton’s statement at the time it was made that he picked up Revell and “threw him on the ground”. In circumstances in which the evidence which the tribunal appeared to accept disclosed that the second respondent threw Revell onto his chest in the corner of the room after picking him up off a seat, the particular of having thrown Revell “across the floor” would seem to have been established. If the tribunal intended to find that throwing Revell on his chest in the corner did not amount to throwing him “across the floor” then this should have been stated in the reasons.

Having effectively found that the second respondent threw Revell across the floor (although not in the sense that the tribunal understood to be conveyed by the relevant particular) it was necessary for the tribunal to address the legal justification for throwing Revell across the floor or, more precisely, having thrown him onto his chest on the floor in the corner of the room whilst handcuffed. General references to the need to “maintain order” were not sufficient in the circumstances. The need to separate Revell and Naughton and to maintain order is one thing. Lawful justification for doing so by throwing Revell to the ground is another.

I conclude that the reasons in respect of Revell are inadequate in respect of the substance of the particular, namely that Revell was thrown across the floor, and in relation to the important issue of whether such a use of force was justified or lawful.

Ludwig

The particulars relating to the first charge include three allegations involving a Barry Ludwig, namely that on 28 September 2004 the respondent kicked Ludwig in the body, punched him in the body and slapped him across the face with an open hand. Each of these incidents is alleged to have taken place in the Brisbane City Beat Office. The focus of the present issue is upon the third matter. It should be stated, in order to avoid any misunderstanding, that the respondent found that there was no evidence that linked the second respondent to kicks inflicted on Ludwig. There is no doubt that Ludwig was kicked. A police officer saw a police officer deliver a kick and heard Ludwig make a noise as if he was being kicked. However, according to the tribunal’s review of the evidence, this officer did not connect the second respondent in any way with the kicks inflicted to Ludwig.

The tribunal found that there was no, or virtually no, evidence to support a finding that the second respondent punched Ludwig.[42]
[42]Tribunal Decision [348].

As far as the second respondent slapping Ludwig in the face is concerned, evidence was given by a police officer named MacKinney. When initially interviewed about whether Ludwig was assaulted by police, MacKinney initially replied “I don’t believe he was assaulted, no”. However, when pressed about the matter he described how the second respondent “had words with Ludwig due to his aggressive nature and at one stage used an open hand ... slap to the face.” MacKinney elaborated on the incident by saying that the second respondent “open hand slapped his side of the head as a diversionary to try and get him to stop (being abusive towards him) so he could talk to him.” MacKinney described the slap as “not hard by any means” and also that it was “soft enough” but nevertheless succeeded in Ludwig’s quietening down.[43]
[43]Ibid at [338].

When police put to the second respondent MacKinney’s allegation that he had slapped Ludwig across the face with an open hand as a diversionary tactic, the second respondent responded that he did not remember it, and did not remember being provoked whatsoever. He also said that he would use “the communication strategy based on the situational use of force” if he was being verbally attacked with obscenities but, if a detained person was handcuffed and sitting on the floor, as Ludwig was, he would certainly not take it any “higher”. He repeated that he would not slap anyone if they were handcuffed.

In resolving the allegation that the second respondent slapped Ludwig across the face the tribunal noted that the issue ultimately rested on a comparison of the evidence of MacKinney and the second respondent and their respective credit-worthiness and reliability. It concluded:

“352. The fact remains that MacKinney was initially evasive when he denied that he had slapped Saunders and attempted to avoid admitting he had slapped Saunders on a technical point. To my mind, this impugns his credit, to an extent, when considered together with evidence of the lack of reliability in his evidence, for example, in relation to the identity of the police officer who had walked Saunders back to the beat office from the Queen Street Mall that evening, that is sufficient to discount his evidence that the second respondent had slapped Ludwig. Alternatively, if I am in error on this point, reliance on MacKinney’s description of the alleged slapping as being a diversionary tactic to counter Ludwig’s abuse and ‘aggressive nature’ so that the second respondent could talk with him and, further, it was neither excessive nor inappropriate, would constitute, in my view, sufficient evidence as to the lawfulness of the second respondent’s action, so that the requisite standard of proof in support of this allegation is not reached.”

The applicant challenges the adequacy of the reasons for the alternative basis of dismissal that appear in the second part of this paragraph. In particular, the applicant contends that there is no explanation as to how an act of slapping a handcuffed detainee constitutes a justified or lawful application of force. I agree that the alternative basis for dismissal is not the subject of adequate reasons. Police evidence about such a technique being used as a “diversionary tactic” does not explain the source of power to use such force on a handcuffed detainee. If the allegation concerning slapping of Ludwig had been dismissed solely on this basis, then consideration would have been required to appropriate relief. However, the second half of paragraph 352 amounted to an alternative, precautionary finding. The particular in respect of the slapping of Ludwig was not made out because the tribunal was not satisfied to the requisite standard of proof that the second respondent slapped Ludwig across the face.

No separate challenge is made to the sufficiency of the reasons for this conclusion.

The discounting of MacKinney’s evidence does not demonstrate that the tribunal erred in applying a standard of proof higher than the balance of probabilities. It is consistent with requiring a high degree of satisfaction on the balance of probabilities standard.

Gracia

The allegations concerning Gracia are that the second respondent slapped him across the face with an open hand and also punched him in the head. The applicant submits that the reasons for decision do not support the conclusion that alleged conduct in hitting Gracia across the top of his head with an open hand as a diversionary tactic and in order to calm him down or to answer questions was a lawful or justified use of force.

A consideration of the material relied upon by the applicant before the tribunal show that the one particular related to an allegation that the second defendant struck Gracia to the head after he went behind a closed door at the Beat Office, following which Gracia attempted to escape. The tribunal was not satisfied that the second respondent struck Gracia prior to his attempted escape.[44] The tribunal’s reasons for reaching this conclusion were adequate, and there is no challenge to them.
[44]Tribunal’s Decision [413].

The blows that the second respondent struck to Gracia following his failed attempt to escape were found to have been struck “in both self-defence and in attempting to restrain Gracia who was resisting such attempts”. In a detailed consideration of the evidence in relation to Gracia the tribunal referred to the evidence of a police officer, Stuart, who gave evidence in the Magistrates Court denying that Gracia was hit from behind after first being taken to the office. Stuart gave evidence of Gracia’s attempted escape and actions taken by officers, including the second respondent, in self-defence and in seeking to restrain him. Stuart went on to refer to Gracia being taken into the interview room at which point the second respondent began to slap him with an open hand variously described as “a few times” or “a substantial number of times”.

The applicant also claims that the tribunal erred in not appreciating that these allegations concerned conduct that occurred in the interview room when Gracia was handcuffed.

The tribunal’s reasons indicate that it appreciated the allegations and the sequence of events from when Gracia first arrived at the Police Beat and went behind a closed door, at which point he is alleged to have received a blow to his head. The tribunal considered events associated with the use of force during Gracia’s attempted escape. It is also considered Stuart’s evidence that she saw the second respondent slap Gracia with an open hand across the top of the head on two occasions. This evidence did not support the particular of being slapped across the face with an open hand and, in the circumstances, the tribunal apparently found it unnecessary to deal with issues that may have arisen had the evidence supported the particular or the particular matched the evidence.

I consider that the tribunal’s reasons in relation to the Gracia incidents are adequate. It found the allegation that Gracia was struck prior to his attempted escape was not proven to its satisfaction. It found the later blows struck in dealing with Gracia’s failed escape attempt as having been taken in both self-defence and in attempting to restrain Gracia. The final episode involved slaps to the head of Gracia whilst handcuffed in an interview room. If the particular had not been confined to slaps across the face, then the second defendant would have been required to justify his use of force in slapping Gracia to the head, and the tribunal would have been required to address this issue. A fair reading of the tribunal’s reasons is that it was not satisfied that the second respondent slapped Gracia across the face.

Douglas

Finally, the applicant complains of inadequacy of reasons in respect of a conclusion in respect of an allegation that the second respondent punched Mr Douglas in the body. In short, the second respondent explained his action in punching Douglas as having occurred in self-defence. The tribunal found the second respondent’s version was “tenable on the evidence and, further, there is sufficient evidence to hold that, when he did punch Douglas, it was in an effort to restrain him, given that, on the evidence of Wilson at least, Douglas did not complain at the time”. I consider that the tribunal’s reasons in respect of the Douglas incident were sufficient to adequately explain the legal justification for the use of force. Detailed reasons were given by the tribunal which were sufficient to explain the tribunal’s finding that the action was in self-defence.

Improper exercise of power:Wednesbury unreasonableness and error of law

The applicant contends that certain findings are indefensible by reference to the factual material or in logic, or are so unreasonable that no reasonable person could have so decided.

Francis

The second respondent is alleged to have slapped Mr Francis in the face with his hand on 30 June 2004 at the Brisbane Central Mall Beat Office. Francis was unable to identify the officer who he alleged slapped him in the face. However, significant evidence was given by another police officer named Birchley who on the evening in question was working at the front of the office. On hearing a commotion, including the raised voice of the second respondent, Birchley returned to see the second respondent standing over Francis, who was lying on the floor with handcuffs on. Birchley says that the second respondent was standing over Francis and said words to the effect “Do it again and I’ll smack you again”.

Reference to the transcript of an interview undertaken with Senior Constable Birchley on 28 September 2004[45] identifies Birchley’s account of the context in which these words were spoken. Francis was handcuffed on the floor on his left side. According to Birchley, the second respondent was standing with his hand raised and open over Birchley when the words “I’ll smack you again” were spoken. Understandably, Birchley was “left with the impression that [Francis had] been slapped because Gardiner had his hand raised and open”. Birchley “stepped in there and got Francis back up”. He did not ask what had been going on because it was “quite clear” to him what had gone on. Birchley did not speak to the second respondent and arranged to get Francis “out of the place as quickly as I could”.
[45]Exhibit “DTM-02” to the affidavit of Dominique Murphy (CFI no 7) described as Attachment 1.18 at 19–29.

The second respondent said that he had no recollection of the episode and denied slapping Francis. When Birchley’s allegations were put to him the second respondent said “I don’t know. It doesn’t sound familiar to me.”

Other officers said that they did not hear or see the incident. The response of one officer was “I did not hear those words or I can’t recall hearing those words”. The tribunal’s conclusion in relation to the allegation concerning Francis is as follows:

“176.     An examination of the evidence as to whether the second respondent slapped Francis in the face reveals a number of conflicting and vague versions. Francis alleged that he had been slapped but was unable to identify the officer who had done so. For Birchley’s statement to constitute compelling evidence that the second respondent had slapped him, one must take it that the use of the word, “again”, in what the second respondent was alleged by Birchley to have said to Francis, implies that he had previously slapped him. Jensen, who was present virtually the entire time, stated that did (sic) not see the second respondent slap Francis across the face and he did not believe there would have been any reason why he would not have seen it, had it happened. However, Jensen was curiously unaware of the second respondent’s presence for almost all of the relevant time.
177.      Edwards, who was in and around the area and did see the second respondent come out of an interview room and tell Francis to quieten down, likewise apparently had no reason to believe that the second respondent had slapped Francis – he certainly did not see it happen – but he did see Francis charge at the second respondent. There was ample evidence that Francis had been aggressive and difficult to restrain.
178.      In light of Francis’ inability to identify the officer who had come out of the interview room and had hit him, the fact that, according to the evidence of Birchley and Edwards, they saw the second respondent come out of the interview room, in itself, would not preclude another officer from being identified as the officer who had hit Francis, if that did happen.
179.      In essence, I have come to the conclusion that to determine, on the standard of proof I have set, that the second respondent had slapped Francis places far too much reliance on the significance of the word, “again”, as used in Birchley’s account and, consequently, it is my decision that the allegation that the second respondent slapped Francis has not been sustained.” (emphasis added)

I have difficulty in understanding the sentence in paragraph 176 that I have highlighted. The tribunal seemed to encounter some difficulty in understanding the use of the word “again” in the phrase “I’ll smack you again” as implying that the second respondent had slapped Francis previously. At the hearing of this proceeding I asked Senior Counsel for the second respondent what else “I’ll smack you again” could mean. Senior Counsel suggested that there might be some ambiguity but acknowledged that he could not place much store on that submission.[46]
[46]Transcript 19 November 2009 1-53 ll 35–51.

Instead, reliance was placed upon the tribunal’s analysis of all the other evidence. However, that does not answer the question as to why reliance could not be placed upon Francis’ evidence coupled with Birchley’s evidence which permitted only one rational conclusion, namely that the second respondent had previously smacked Francis. The tribunal did not reject Birchley’s evidence. It did not reject Francis’ evidence, merely noted that Francis was unable to identify the police officer who had slapped him. Birchley’s evidence supplied that identification. The second defendant did not actually deny using those words, merely saying that “it doesn’t sound familiar to me.” The evidence of other police officers who did not see or hear the incident was equivocal and did not diminish Birchley’s evidence.

It is impossible to understand why Birchley’s statement about the second respondent’s use of the word “again” was not thought to constitute compelling evidence that the second respondent had previously slapped Francis. With respect to the tribunal, any other conclusion is perverse.

As to the conclusion reached by the tribunal at paragraph 179 of its reasons, the fact that another officer, such as Edwards, did not see the second respondent slap Francis is not a sufficient basis to not conclude that the second respondent did so in circumstances where:

(a)there was a confrontation between the second respondent and Francis;
(b)Francis gave evidence that he was slapped by a police officer;
(c)the evidence from officer Birchley that the tribunal accepted was that the second respondent said to Francis “I’ll smack you again”.

Satisfaction to the required standard of proof was not ruled out because of the possibility that it was another police officer who hit Francis. No such officer is alleged to have had occasion to hit Francis, or the opportunity to do so, in the vicinity of the interview room. By contrast, it was the second respondent who had occasion to deal with Francis in that vicinity.

The evidence of Birchley, which was accepted, admitted of only logical conclusion: that the second respondent had slapped Francis previously. It provided the requisite identification of the second respondent. I do not accept the second respondent’s submission that the approach of the tribunal was “entirely consistent with the degree of proof that Briginshaw requires”. It is unnecessary to conclude whether the evidence was capable of satisfying the criminal standard of proof. The issue is whether it was open to the tribunal on the probative evidence to not be satisfied of the particular alleged, applying the civil standard of proof. That standard of proof required the tribunal to be reasonably satisfied of the truth of the fact alleged, taking into account matters such as the seriousness of the allegation, the inherent unlikelihood of a particular occurrence and the gravity of the consequences flowing from a particular finding.[47] As the High Court stated in Rejfek v McElroy, no matter how grave the fact which is to be found according to the civil standard of proof, the mind has only to be reasonably satisfied and has not to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
[47]Rejfek v McElroy (1965) 112 CLR 517 at 521; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362.

On the basis of the evidence that the tribunal accepted, including the evidence of Birchley, no reasonable decision-maker applying the civil standard of proof, taking into account the gravity of the allegation and the gravity of the consequences flowing from an adverse finding, could fail to conclude that the second respondent had previously slapped Francis. The tribunal’s determination that to come to the conclusion that the second respondent had slapped Francis “places far too much reliance on the significance of the word ‘again’” is strongly suggestive of a requirement to be satisfied to a standard of proof higher than the balance of probabilities. The significance of the word “again” was that the second respondent had previously slapped Francis. It constituted compelling evidence that the second respondent had previously slapped Francis. Application of the appropriate standard of proof to the probative evidence compelled the conclusion that the second respondent slapped Francis, as alleged.

I find that the conclusion reached in respect of the Francis incident is one which was not reasonably open on the probative evidence, including the probative evidence of Birchley.

It is unnecessary in this context to consider the weight which might be given to other evidence which the tribunal accepted in respect of other incidents in which the second respondent admitted or was found to have used force in the form of slaps against persons held in custody. Regard to the “compartmentalised” evidence in relation to the Francis incident compelled the conclusion that the second respondent slapped Francis, as alleged.

The authority conferred upon the tribunal did not authorise it to make a factual conclusion that no reasonable person could have reached on the probative evidence, applying the appropriate standard of proof. The tribunal’s conclusion in relation to the Francis matter was not authorised because no reasonable person could have reached it on the probative evidence, applying the appropriate standard of proof.

I conclude that the applicant has established grounds to set aside the decision because it was an improper exercise of power.

Revell

I have previously dealt with the matter of Revell in connection with the adequacy of reasons.

The applicant contends that there is no rational explanation as to how an action described by another police officer as throwing a handcuffed person onto his chest on the floor could be regarded as a justifiable application of force by the police officer. Before such a finding could be made it would be necessary to identify a relevant power being exercised by the police officer and a conclusion that the force used was reasonably necessary in order to exercise that power.

The second respondent responds to those submissions by contending that the tribunal found that the allegation that the second respondent threw Mr Revell across the floor had not been substantiated and that, as a consequence, the applicant’s reliance upon s 23(g) of the JRA in this context was misplaced and irrelevant. I need not repeat what I have earlier said concerning the tribunal’s finding in relation to the allegation that the second respondent threw Mr Revell across the floor. At the very least, the reasons involve an implicit finding that the second respondent threw Revell to the floor whilst handcuffed.

Because the matter should be the subject of further consideration, it will be necessary for a new decision-maker to reach their own conclusions concerning the throw, including whether any possible legal justification could exist for throwing a handcuffed person to the floor. If, contrary to my earlier finding, the conclusions reached at paragraphs 305 and 306 are adequate and should be read as suggesting that the second respondent was justified in throwing a handcuffed detainee to the floor from his previously seated position in order to “maintain order” and an appropriate level of restraint, then such a finding would be perverse and liable to be set aside on the ground that no reasonable person could have reached it. The justification for such an exercise of force does not lie in the subjective assessment of a fellow-officer that such an action was “not an extreme reaction”. It lies in an analysis of the facts, identification of the power being exercised by the police officer and its purpose and a consideration of the force that is reasonably necessary in order to exercise that power. The tribunal’s reasons do not disclose the legal justification for throwing a handcuffed detainee to the floor. The obnoxious conduct of Revell on the night, for which he later apologised to the second respondent, may explain the second respondent’s reaction. It does not necessarily provide legal justification for conduct in throwing a handcuffed detainee to the ground.

I have previously addressed the adequacy of the reasons of the tribunal as to whether Mr Revell was thrown across the floor. In the present context, I conclude that the implicit finding that the second respondent threw Revell across the floor (although not in the sense that the tribunal understood to be conveyed by the relevant particular) required consideration whether such a use of force was lawful. The reasons of the tribunal are inadequate in this regard. In the present context, the second respondent does not advance an argument concerning the legal justification to throw Revell, as described by officer Wilson and in other evidence. To the extent that the tribunal made a finding that there was lawful justification to throw a handcuffed detainee onto the floor in the corner of the room and onto his chest, the conclusion is liable to be set aside as disclosing an error of law or being an improper exercise of power in that it is a conclusion that was not open to the tribunal to make. However, I have previously concluded that this finding should be set aside on the grounds of inadequate reasons. So far as other grounds of review are concerned, the material does not disclose, and the submissions of the second respondent in the present proceedings do not contend that throwing Revell, whilst handcuffed, onto his chest in the corner was justified “to maintain order”.[48] An “appropriate level of restraint” in relation to Revell did not require him to be thrown to the ground. If it was necessary to take “proactive steps to counter any threatening conduct on the part of Revell”,[49] or simply to separate him from Naughton, this could reasonably have been achieved without throwing Revell to the floor. I am unable to conclude that a tribunal could reasonably conclude that such a throw was a reasonable use of force in the circumstances.
[48]Tribunal Decision [306].
[49]Ibid.

Irrelevant considerations

The applicant relies upon grounds of judicial review concerned with relevant and irrelevant considerations to argue that, for the reasons argued in other parts of its submissions, the tribunal failed to have regard to “all aspects of the evidence that was logically probative of the allegations under consideration” and thereby failed to take into account a relevant consideration.

I consider that this argument is misplaced. A failure by a tribunal to consider some aspect of the evidence cannot be equated with a failure to take into account a “relevant consideration” as that term is understood in the context of judicial review.[50]
[50]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra) at 39–40.

The tribunal certainly was not required to refer to all the evidence. It did, however, refer to the evidence in great detail. I decline to uphold the challenge to the tribunal’s decision as an improper exercise of power on the basis of either taking into account an irrelevant consideration or failing to take into account a relevant consideration.[51]
[51]JRA s 23(a) and s 23(b).

Other matters

There are other findings by the tribunal that are relied upon by the applicant as indicative of the application of a standard of proof higher than the balance of probabilities. I find it unnecessary to deal with those arguments.

Conclusion and orders

The applicant has established grounds for judicial review based upon the inadequacy of reasons in relation to the Revell matter and the conclusion in relation to the Francis matter being one which no reasonable tribunal could have reached on the probative evidence applying the appropriate standard of proof.

Further consideration of those matters by the tribunal’s successor may have an impact upon other aspects of the two contested charges. The second respondent accepted that in principle findings of excessive force in respect of some of the allegations may be logically probative in the determination of other allegations.

The tribunal acknowledged the appropriateness of what the applicant describes as a compendious approach whilst focusing on the actual evidence adduced to substantiate each complaint. The weight to be accorded to similar allegations from unconnected, independent sources will be a matter for the new decision-maker.

The applicant submitted that the establishment of any of the grounds for review advanced by it was such as to warrant the setting aside of the tribunal’s decision. The second respondent did not contest this proposition.

The appropriate order is that the decision of the tribunal made on 31 July 2009 to dismiss the applicant’s appeal in respect of matters 1 and 2 be set aside.

By reason of the Queensland Civil and Administrative Tribunal Act 2009 and consequential amendments the jurisdiction of the Misconduct Tribunal is now exercised by the Queensland Civil and Administrative Tribunal. The matter should be referred to the Queensland Civil and Administrative Tribunal. I decline to make a specific direction that such a rehearing be by someone other than the third respondent. The constitution of the tribunal will be a matter for the new tribunal.

I will hear the parties in relation to costs.

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Citations

Crime and Misconduct Commission v Assistant Commissioner J P Swindells [2009] QSC 409

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Cited Sections

CITATION:	Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409
PARTIES:	CRIME & MISCONDUCT COMMISSION (applicant) v ASSISTANT COMMISSIONER J P SWINDELLS (first respondent) and CONSTABLE PATRICK BRIAN GARDINER (second respondent) and PETER J BYRNES, MEMBER, MISCONDUCT TRIBUNAL (third respondent)
FILE NO:	9405 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	15 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2009
JUDGE:	Applegarth J
ORDER:	1. The decision of the Misconduct Tribunal made on 31 July 2009 to dismiss the applicant’s appeal in respect of matters 1 and 2 is set aside. 2. The matter is referred to the Queensland Civil and Administrative Tribunal.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where misconduct tribunal finds charges of misconduct against a police officer of use of excessive force against detainees unsubstantiated – whether tribunal erred in taking a “compartmentalised” view of the evidence that directly related to each complainant and failed to give weight to the probative value of evidence of multiple, similar allegations from unconnected complainants – whether the tribunal erred in applying a standard of proof higher than the civil standard ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where evidence that police officer slapped handcuffed detainee in the face – where another police officer sees the second respondent standing over the detainee with hand raised and hears him say “I’ll slap you again” – where tribunal concludes in effect that use of the word “again” not compelling evidence that the second respondent had previously slapped detainee – whether conclusion that complaint unsubstantiated so unreasonable that no reasonable tribunal could have reached it – whether tribunal’s conclusion indicative of error of law in applying standard of proof higher than the civil standard ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where evidence that the second respondent threw a handcuffed detainee on his chest onto the floor of a police station – whether the tribunal provided adequate reasons in respect of the incident and legal justification for the use of force Judicial Review Act 1991 (Qld), s 20, s 20(2)(e), s 20(2)(f), s 23(a), s 23(b), s 23(g) Misconduct Tribunals Act 1997 (Qld), s 23(2)(a) Police Powers and Responsibilities Act 2000 (Qld), s 615 Queensland Civil and Administrative Tribunal 2009 (Qld), s 247, s 248, s 252(1) Aldrich v Ross [2001] 2 Qd R 235, cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, cited Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, cited Bruce v Cole (1998) 45 NSWLR 163, applied Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343, cited Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462, cited Hill v Green (1999) 48 NSWLR 161, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154, cited Minister for Immigration and Multicultural Affairs v Eshetu 197 CLR 611, applied Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, cited Purnell v Medical Board of Queensland [1999] 1 Qd R 362, cited Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002 (2003) 198 ALR 59, cited Rejfek v McElroy (1965) 112 CLR 517, cited Res 1 v Medical Board of Queensland [2008] QCA 152, cited Waterford v The Commonwealth (1987) 163 CLR 54, cited Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272, cited
COUNSEL:	P J Callaghan SC and G P Long SC for the applicant L Burrow for the first respondent B W Farr SC for the second respondent
SOLICITORS:	Official Solicitor, Crime and Misconduct Commission for the applicant Office of the Queensland Police Service Solicitor for the first respondent Gilshenan & Luton Legal for the second respondent