Crime and Misconduct Commission v Assistant Commissioner Ross Barnett

[2010] QCAT 690

CITATION: Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690

PARTIES:	Crime and Misconduct Commission
v
Assistant Commissioner Ross Barnett and Bryan Alan Eaton

APPLICATION NUMBER:   OCR079-10

MATTER TYPE: Occupational regulation matters

HEARING DATE:     Determined on papers

HEARD AT:  Brisbane

DECISION OF: Hon J B Thomas

DELIVERED ON: 9 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

(1) The Crime and Misconduct Commission is granted leave to adduce new evidence under section 219H of the Crime and Misconduct Act 2001, namely the inquest finding of the state coroner dated 14 October 2004 (attachment 1 to the application).

(2)  The Crime and Misconduct Commission is also granted leave to adduce evidence of attachments 2 and 3 to the application and copies of position descriptions for all QPS positions for the rank “Senior Sergeant” and below.

(3)  Leave is granted to all parties to apply for further directions before hearing.

CATCHWORDS : 

Police discipline – penalty – right of CMC to appeal against inadequacy – CMC’s role and status in such reviews – suggested application of Hardiman principle to avoid duplication of representation –
Whether “new evidence” may be received – whether coroner’s findings should be received – need for relevance – limited basis for reception – whether evidence “new” –

Crime and Misconduct Act 2001, ss 219A, 219BA(1), 219G, 219(H)
Police Service Administration Act 1990, s 7.4
Queensland Civil and Administrative Tribunal Act 2009, ss 7(2), 20, 28(3)
Coroners Act 1958, s 43
Coroners Act 2003, s 51

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Submissions from J J Allen, counsel for applicant
RESPONDENT:	M D Nicholson, counsel for first respondent, and P E Smith, counsel for second respondent

REASONS FOR DECISION

Nature of proceedings and jurisdiction

1. The principal proceedings are the CMC’s application for review of a disciplinary decision against a policeman (Sergeant Eaton) who was found guilty of police misconduct. A penalty was imposed of reduction in his level of salary from paypoint 4.4 to 4.3 for a period of 12 months. They were commenced by the CMC pursuant to section 219G of the Crime and Misconduct Act 2001 which gives the CMC the right to apply to QCAT for the review of a “reviewable decision”. That term is defined in section 219BA(1)(a) of that Act to include a decision of the present kind.

2. The CMC was not a party to the original disciplinary action against Sergeant Eaton which was conducted within the police service pursuant to section 7.4 of the Police Service Administration Act 1990.

1. The present application is brought by the CMC under section 219H of the Crime and Misconduct Act 2001 to adduce “new evidence”. The respondents are respectively the decision-maker (Assistant Commissioner Barnett) and Sergeant Eaton.

1. The Parties have consented to my determination of that application on the papers, which include all the evidence on which the original disciplinary proceedings were based.

The “new evidence”

1. The application listed four categories of additional facts, the first of which is described as “Inquest Finding of State Coroner dated 14 October 2004”.  It is a 30 page document attached to the application, and sets out the coroner’s findings in his inquest into the deaths of two north Queensland men in April 2003 in the course of a Police pursuit by Sergeant Eaton.

1. The coroner’s findings were delivered on 14 October 2004.

1. No mention was made of the previous pursuit incident in the original disciplinary proceedings which were conducted before the first Respondent.

1. Reception of the other three categories of evidence was not opposed by either Respondent as they regarded them as documents that would be within the knowledge of the prescribed officer when deciding what acceptable sanction should be imposed.  Thus the only live issue here is whether the inquest findings should be received into evidence in the present review.  This requires some appreciation of what facts the document is capable of being used to prove.

Three Parties – a preliminary observation

1. The CMC brought the application against two respondents, and to date both have responded in adversarial fashion leading to some duplication of effort.  It seems odd that there should be two active respondents in proceedings such as these.  The usual convention is that when there is a true adversarial respondent, the decision-maker does not become a protagonist other than in exceptional circumstances (R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35, 36). The joinder of the two Respondents was no doubt made because of the terms of section 219G(3) of the CMC Act. That section refers to “the prescribed person”, “the person who made the reviewable decision” and “if the application is made by the Commission – the Commission” as the parties to a proceeding, but does not say that all of them must remain active parties in every type of application.

10. It is undesirable that an adjudicating officer be put in the position of having to defend his or her decision in adversarial mode when the reasons for the decision have already been given. It is preferable that the decision be defended by the party who wants to uphold it. It should be noted that the position of the decision-maker on a review differs from that of a fully adversarial party, and is expressed in section 21 of the Queensland Civil and Administrative Tribunal Act 2009 as a requirement to "use his or her best endeavours to help the tribunal so that it can make its decision on the review”.

11. In these circumstances the normal response from the decision-maker should be to supply QCAT with the same material as upon an ordinary review, and to intimate in accordance with the Hardiman principle that he or she will not take any further part in these proceedings and will abide the order of the Tribunal, reserving the right to appear if any costs are claimed against them.  In certain cases where the protection of a police policy that might not be properly understood or ventilated by the other parties, it would be appropriate for the decision-maker to make a limited intervention.  In my view it would eliminate considerable duplication, expense and effort if the Hardiman principle were generally followed.  This point may deserve further consideration after full argument, and I shall say no more about it in the present matter.

Should the evidence be received?

12. The primary provision concerning the reception of such evidence is section 219H of the Crime and Misconduct Act 2001 which provides:-

219H Conduct of proceedings relating to reviewable decisions

(1) A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).

(2) However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—

(a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or

(b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.

(3) If QCAT gives leave under subsection (2), the review is—

(a) by way of rehearing on the original evidence; and

(b) on the new evidence adduced.

13. Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 provides:-

20 Review involves fresh hearing

(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

(2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

This must be read in the light of section 7(2) of that Act, which provides that to the extent of any inconsistency between a modifying provision in the enabling act and the powers of the QCAT Act the former shall prevail.

14. In order to tell whether the evidence is "new" it is necessary to understand the role and character of the CMC in such proceedings. The CMC has the right to intervene as a party for the bringing of the present review. Section 219G of the Crime and Misconduct Act 2001 provides, where relevant –

(1) The commission or a prescribed person against whom a reviewable decision has been made may apply, within the period mentioned in subsection (2) and otherwise as provided under the QCAT Act, to QCAT for a review of the reviewable decision.

…

(3) The parties to a proceeding are—

(a) the prescribed person; and

(b) the person who made the reviewable decision; and

(c) if the application is made by the commission—the commission.

15. It is inconceivable that the prescribed officer, who imposed the penalty, could appeal against its inadequacy.  In cases where it may be perceived that a penalty is inadequate, the CMC is the party which would logically take over such a role.

16. The role of the CMC in proceedings like the present is plainly that of a watchdog in the public interest. Section 219A of the Crime and Misconduct Act 2001 states that the purposes of the provisions in that part of the Act are–

(a) to protect the public; and

(b) to uphold ethical standards within units of public administration and the police service; and

(c) to promote and maintain public confidence in the public sector.

17. When it intervenes in this way the CMC litigates in its own right, not as a representative of any other party.

18. Reception of the evidence of the coroner’s findings is opposed on the ground that it could not have been relevant to the decision-maker in considering the sanction to be imposed.  It has also been submitted that the inquest findings are in any event “not relevant to the current proceedings”.  The submission proceeds that the comments made by the coroner against Sergeant Eaton are highly prejudicial, and no charges were instituted against him nor were any criminal, disciplinary or other proceedings taken following those findings.  In those circumstances it was submitted that it would be unfair to admit the findings.

19. Counsel for the CMC submitted that it was inexplicable that the decision-maker had failed to have regard to the coroner’s findings.  It is of course hardly surprising that he failed to do so, since the investigation failed to bring them to his attention.  I do not imply any bad faith on the part of those who carried out this investigation and conducted the disciplinary proceedings.  There had been no disciplinary action taken in 2003-4, and it was true that Sergeant Eaton’s “record” was unblemished.  There may be an assumption that the only admissible history consists of former antecedents in which formal charges have been laid and recorded, but this is incorrect.  There is nothing in section 2.4.9 of the Human Resources Management Manual that requires such a limitation.  It advises the decision-maker to “consider any relevant material” on the issue of “sanction”.

20. Before one can sensibly determine whether the evidence should be received there are threshold questions as to whether it is relevant, and what it is capable of proving.

Relevance

21. It seems to have been assumed by counsel for the CMC that the tender of the documents containing the coroner’s findings could be used by the tribunal as evidence of the facts concerning the fatal police pursuit in North Queensland in 2003, along with the coroner’s opinion concerning the driving of Sergeant Eaton.  However I do not think that it could be used for either of these purposes.

22. It is true that the tribunal is not bound by the rules of evidence, it may inform itself in any way it considers appropriate and act with as little formality and technicality as the requirements of the Act and fair practice will permit (Queensland Civil and Administrative Tribunal Act 2009 section 28(3)). However the tribunal is conscious of the fact that the rules of evidence “represent the attempt made, through many generations to evolve a method inquiry best calculated to prevent error and elicit truth” (per Evatt J in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228, 256). The curial rules of evidence may afford useful guidance even though they are not binding here.

23. The present document would not be receivable in a court of law to prove the facts concerning the pursuit incident in north Queensland.  Even when a party has been convicted in a criminal court, in subsequent civil proceedings it is possible to look behind the formal conviction and for the court to make an independent finding of fact inconsistent with the conviction (Hollington v F Hewthorn and Co Ltd (1943) 1 KB 587; Helton v Allen (1940) 63 CLR 691). That common law has been altered by statutes, and in Queensland section 79 of the Evidence Act 1977 permits proof by tender of the conviction, although such proof is not conclusive of the facts and may be rebutted. The relevant provision is that unless the contrary is proved, the person is taken to have committed the acts and you have possessed a state of mind which at law constitutes that offence. That is to say, it amounts only to prima facie proof of the bare elements of the offence. That section of course does not bind this tribunal but it is indicative of the practice in the courts when far more telling findings have been made against the person then a coroner’s statement of reasons for a recommendation or non-recommendation for committal.

24. The coroner’s findings are obviously of less force than a conviction.

25. The deaths, the subject of the coroner’s enquiry occurred before December 2003, the date on which the Coroners Act 2003 was proclaimed. They were therefore “pre-commencement deaths” within section 100 of that Act, and the provisions of the Coroners Act 1958 therefore applied to the inquiry notwithstanding that it was conducted in 2004 under the terms of the new Act.

26. Relevantly section 43 of the Coroners Act 1958 provided:

Finding of Coroner

(1) After considering all the evidence before the coroner at the inquest the coroner shall give the coroner’s finding in open court.

(2)Where the inquest concerns the death of any person, the finding shall set forth—

(a) so far as has been proved—

(i) who the deceased was;

(ii) when, where, and how the deceased came by his or her death; and

(b) the persons (if any) committed for trial.

…

(5)The coroner shall not express any opinion on any matter outside the scope of the inquest except in a rider which, in the opinion of the coroner, is designed to prevent the recurrence of similar occurrences.

(5A)A rider shall not be or be deemed to be part of the coroner’s finding but it may be recorded if the coroner thinks fit.

(6)No finding of the coroner may be framed in such a way as to appear to determine any question of civil liability or as to suggest that any particular person is found guilty of any indictable or simple offence.

27. Section 51 of the Coroners Act 2003 is even more restrictive. Section 51 of that Act provides:

Record of coroner’s findings and comments

(1) A coroner must keep a record of the coroner’s findings and comments.

(2) The record of the coroner’s findings and comments is not evidence in any court or tribunal of any fact asserted in the record.

(3) If a coroner becomes aware of a clerical mistake or omission in the record, the coroner must correct it.

28. As the recording of a coroner’s findings and comments is a procedural step, it is a nice question whether the 1958 Act or the 2003 Act apply to the findings in the present matter which were delivered after the commencement of the latter Act.  It is not necessary for me to resolve it, because the relevant sections of either Act make it perfectly clear that the findings did not amount to any final determination of facts which bind anyone in subsequent proceedings.

29. In some of QCAT’s jurisdictions it will be convenient and appropriate to admit a coroner’s findings as prima face evidence of the facts stated.  But where any fact is contested in proceedings of the present kind where discipline is to be imposed which may deprive a person of his or her livelihood, a high degree of satisfaction is required and evidence of any disputed fact contained in such findings would need to be proved afresh.

30. In the present matter reception of the coroner’s findings is opposed.  For the above reasons I do not think that the coroner’s findings should be received by the tribunal as evidence of the coroner’s opinion or as evidence of the facts stated therein as to the speed and circumstances of Sergeant Eaton’s driving.  However Sergeant Eaton was represented in the proceedings before the coroner, and there does not seem to have been any contest about the fact that two men died in the course of a police chase in which Sergeant Eaton was the driver.

31. In disciplinary proceedings any evidence that gives an insight into the intrinsic character of the person charged is of the utmost importance.  In the present case, evidence of the fact that Sergeant Eaton had had a serious warning which he might have been expected to heed would be a potentially relevant matter in this respect, as it allows his conduct in question in the instant matter to be examined in context.

32. The potential relevance of the document, if received, is that it can be used to show that in 2003 there was a coronial inquiry into the death of two persons in the course of a police chase in which Sergeant Eaton was involved.  He was represented in that inquiry and it is open to infer that he knew that his conduct was the subject of adverse comment by the coroner in his public findings.  The evidence is capable of being received as evidence that Sergeant Eaton had had a serious warning of which he might be expected to have taken heed.  In short, the limited purpose of its reception is to demonstrate the background knowledge and state of mind of Sergeant Eaton when he chose to drive in the manner he did in 2009.  Beyond that it has no relevance.

33. In describing the capacity of the evidence I am not implying that it carries any particular level of persuasion or seriousness, or that the case falls at the serious end of the spectrum.  Its weight will be for the tribunal member who conducts the review after considering all the evidence.  Its admission will simply permit the CMC to make out a fuller case than has so far been presented.

34. Sergeant Eaton should have the opportunity, if advised to exercise it, of giving further evidence to explain or rebut the evidence so admitted.  It will therefore be necessary to allow the parties to seek any further directions covering the presentation of any such evidence.

Is the evidence “new” under s 219H(2) of the Crime and Misconduct Act?

35. For the reasons stated in paragraphs 14 to 19 above, the CMC appears in the present proceedings as a distinct entity separate and apart from the parties responsible for conducting the original proceedings.  It follows that the CMC (“the person seeking to adduce the new evidence”) did not know or could not reasonably be expected to have known of its existence at the original proceeding.  Section 219(2)(a) is therefore satisfied.

36. I also consider that in the present circumstances it would be unfair not to allow the CMC to adduce the new evidence on the limited basis stated above, and accordingly that section 219H(2)(b) is also satisfied.

Orders

It will therefore be ordered that:

(1)The Crime and Misconduct Commission is granted leave to adduce new evidence under section 219H of the Crime and Misconduct Act 2001, namely the inquest finding of the state coroner dated 14 October 2004 (attachment 1 to the application).

(2)The Crime and Misconduct Commission is also granted leave to adduce evidence of attachments 2 and 3 to the application and copies of position descriptions for all QPS positions for the rank “Senior Sergeant” and below.

Leave is granted to all parties to apply for further directions before hearing.