| 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 |
APPLICATION NUMBER: MSR005-07
| MATTER TYPE: | Occupational Regulation |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham |
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…
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- Case
- [2010] QCAT 490
- Decision Date
CaseChat Overview and Summary
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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