Crime and Misconduct Commission v Swindells & Gardiner - [2010] QCAT 490

CITATION:

Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490

PARTIES:	Crime and Misconduct Commission (Applicant)
v
J. P. SWINDELLS, Assistant Commissioner (First Respondent)
P. B. GARDINER (Second Respondent)

APPLICATION NUMBER: MSR005-07

MATTER TYPE:

Occupational Regulation

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Judge Fleur Kingham
(Deputy President)

DELIVERED ON: 2 September 2010

DELIVERED AT: Brisbane

ORDERS MADE:

Upon review, the decision of Assistant Commissioner Swindells in relation to:

a) the finding that charges 1 and 2 were unsubstantiated; and

b) the sanction imposed upon Constable Gardiner in relation to the third misconduct charge admitted; is set aside.

The misconduct charges as particularised in these reasons are substantiated.

Constable Gardiner is dismissed from the Queensland Police Service.

His dismissal is suspended on the following conditions:

a) The period of suspension is three years from the date of this order;

b) During the suspension period, Constable Gardiner must attend Dr Lynagh for further assessment and undertake such counselling, treatment or training program he is reasonably directed to undertake by the prescribed officer of the Queensland Police Service, upon the recommendation of Dr Lynagh;

c) If Constable Gardiner is found to have committed an act of misconduct or to have contravened a condition during the suspension period, the suspension is revoked and the decision to dismiss Constable Gardiner from the Queensland Police Service has immediate effect.

CATCHWORDS :

MISCONDUCT – Police Officer – where officer used excessive force against persons in custody – where officer incited a person to fight him – where conduct admitted – where delay between conduct and resolution has been extensive – where officer has been of good conduct since – whether impact of the delay is relevant to the penalty in this case

DISMISSAL – where joint submission by two parties that agreed orders are appropriate – where agreed that dismissal should be suspended – whether suspension of sanction is appropriate – whether conditions should be imposed on suspension

Misconduct Tribunals Act 1997 ss 26(2), 28, 35

Police Service Administration Act 1990 s7.4

Queensland Civil and Administrative Tribunal Act 2009 ss 243, 259, 260,

Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 followed

Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597 applied

Spencer v Baulch (2004) QCA 234 applied

REASONS FOR DECISION

This matter has a lengthy and complex history. Disciplinary proceedings were brought against Constable Gardiner on allegations that he used excessive force against a number of people in police custody (charges 1 and 2) and enticed another to engage in a fight with him (charge 3).[1]
[1]The proceedings were brought pursuant to the Police Service Administration Act 1990 s7.4
Assistant Commissioner Swindells conducted a disciplinary hearing in April 2007 and delivered his decision in November that year. He dismissed charges 1 and 2 and, on Constable Gardiner’s admission, found charge 3 proved but imposed no sanction.
The CMC appealed the decision to the Misconduct Tribunal, since abolished. The appeal was heard over 3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 490
Decision Date: 2 September 2010

CaseChat Overview and Summary

The case before the court involved the Crime and Misconduct Commission's review of disciplinary actions taken against two police officers, Assistant Commissioner Swindells and Constable Gardiner. The dispute arose from allegations that Constable Gardiner used excessive force against individuals in custody and incited one person to fight him. The misconduct charges against the officers were brought before the court following admissions of misconduct by the accused. The court was tasked with determining whether the initial findings of the Assistant Commissioner regarding the unsubstantiated charges and the sanctions imposed on Constable Gardiner were appropriate, and whether the delay in resolving the case impacted the penalty.

The legal issues the court needed to address included whether the misconduct charges substantiated by the Crime and Misconduct Commission were valid, given the admissions of misconduct by Constable Gardiner. Another issue was whether the penalty of dismissal should be imposed and, if so, whether it should be suspended, and if so, under what conditions. The court also had to consider the relevance of the extensive delay between the misconduct and the resolution of the case in determining the appropriate penalty.

In delivering the judgment, the court found that the initial decision of the Assistant Commissioner regarding the unsubstantiated charges and the sanction imposed on Constable Gardiner was flawed. The misconduct charges were substantiated, and Constable Gardiner was dismissed from the Queensland Police Service. However, the dismissal was suspended for three years, contingent on specific conditions being met. These conditions included attending further assessment and counselling as directed by Dr Lynagh and refraining from any misconduct during the suspension period. If Constable Gardiner contravened any of these conditions, the suspension would be revoked, and the dismissal would take immediate effect.

The court's final orders included setting aside the Assistant Commissioner's initial decisions on the unsubstantiated charges and the sanction imposed on Constable Gardiner. The misconduct charges were confirmed as substantiated, and Constable Gardiner's dismissal was suspended on the conditions outlined in the judgment. These conditions aimed to ensure that Constable Gardiner received necessary support and complied with the terms of his suspension to maintain public confidence in the police service.

Orders

Orders of the court

1. Upon review, the decision of Assistant Commissioner Swindells in relation to:

a) the finding that charges 1 and 2 were unsubstantiated; and

b) the sanction imposed upon Constable Gardiner in relation to the third misconduct charge admitted; is set aside.

2. The misconduct charges as particularised in these reasons are substantiated.

3. Constable Gardiner is dismissed from the Queensland Police Service.

4. His dismissal is suspended on the following conditions:

a) The period of suspension is three years from the date of this order;

b) During the suspension period, Constable Gardiner must attend Dr Lynagh for further assessment and undertake such counselling, treatment or training program he is reasonably directed to undertake by the prescribed officer of the Queensland Police Service, upon the recommendation of Dr Lynagh;

c) If Constable Gardiner is found to have committed an act of misconduct or to have contravened a condition during the suspension period, the suspension is revoked and the decision to dismiss Constable Gardiner from the Queensland Police Service has immediate effect.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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