Crime & Misconduct Commission v Deputy Commissioner, Queensland Police Service & Damien Chapman (No 2)

[2010] QCAT 636

CITATION:		Crime & Misconduct Commission v Deputy Commissioner, Queensland Police Service & Damien Chapman (No 2) [2010] QCAT 636
PARTIES:	Crime & Misconduct Commission (Applicant)
v
Deputy Commissioner, Queensland Police Service (First Respondent) Mr Damien Chapman (Second Respondent)

APPLICATION NUMBER:   OCR015-10

MATTER TYPE: Occupational regulation matters

HEARING DATE:     8 December 2010

HEARD AT:  Brisbane

DECISION OF: Hon James Thomas, Presiding Member
Susan Booth, Acting Deputy President

DELIVERED ON: 10 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

A disciplinary declaration that:

(1)     On 18 May 2007 the respondent Sergeant Damien Chapman was guilty of improper conduct in that he used excessive force against Jamie Graham McCormack.

(2) The order that the Tribunal would have made under section 219J of the Crime and MisconductAct if Sergeant Chapman’s employment had not ended is that he be dismissed from the police service.

CATCHWORDS :  Police discipline; disciplinary declaration; discretion unfettered, to be decided on facts of each particular case; Crime and Misconduct Act 2001 s219J and s219A

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 

Crime & Misconduct Commission was represented by Mr J J Allen

RESPONDENT: 

Deputy Commissioner, Queensland Police Service was represented by Ms M Dixon

Damien Chapman was represented by Mr C Gnech instructed by Queensland Police Union

REASONS FOR DECISION

Hon James Thomas, Presiding Member

1. On 4 November 2010 this Tribunal found that Sergeant Chapman was guilty of misconduct and adjourned the question of sanction to 8 December 2010. 

1. Last Friday, 3 December 2010 Sergeant Chapman ceased to be a serving Police Officer. He resigned from the service and his resignation was accepted by a Deputy Commissioner of Police. This deprives the Tribunal of its ordinary disciplinary jurisdiction but in 2009 the power was given in such cases to the Tribunal to make a disciplinary declaration under section 219J of the Crime and Misconduct Act.

2. The question is whether we should exercise that power.  It is a discretionary power, it is only available if the order that we would be making would have been dismissal or reduction in rank.  It is however a general discretion and not limited to cases of official misconduct as originally seemed to be submitted.  It is available for consideration in the present circumstances. It, is an unfettered discretion, and it is undesirable that we attempt to restrict it in any way by laying down the guidelines.  It should be exercised on the facts of each particular case.

1. The circumstances as we saw them, having considered all the evidence, are recounted in our published reasons.

1. The salient features of the case are a gratuitous, violent assault on a young offender causing him to suffer a ruptured spleen.  It is not a case where we could be asked to regard it as an unlucky or accidental outcome of a physical engagement in the course of duty.  In the case of that kind, the Tribunal might take a lenient view and impose something less than dismissal.  But here there was no candour, as we see it, in the defence and no satisfactory explanation because Sergeant Chapman chose to rely on a total denial of any physical contact that could have caused the injury.

1. Mr Gnech for Sergeant Chapman referred to a number of matters in mitigation.  They include the fact that there was only one blow administered and that the Sergeant was entitled to make an arrest at the time on the information then in his possession although it was mistaken in fact.  He acknowledges that remorse is not a submission available to him because his client denies any wrong- doing.  He submits that a demotion of five pay points from 3.5 to 3.1 would be an adequate response in the circumstances.  He submits that dismissal or demotion are unsuitable and that it should be seen as a reduction in pay point case so far as the level of seriousness is concerned.

1. In my view the persistent attempt to cover up the misconduct only aggravates the situation and does reveal an attitude that is not acceptable in a serving officer. 

Is it then appropriate that a disciplinary declaration be made in this case?

1. Section 219A of the Crime and Misconduct Act states that the purposes of disciplinary proceedings are to protect the public, to uphold ethical standards within units of public administration and the police service, and to promote and maintain public confidence in the public sector.

1. This case involves a relatively serious although short episode of misconduct by a police officer followed by a continuing attempt to cover it up. The evidence is also sufficient to show the continuance of threatening and insulting, abusive conduct towards the suspect over an extended period following the infliction of the injury.

[10]   It is in the public interest that police officers should know that conduct of this kind will not be tolerated and that officers who so behave are likely to be dismissed and to suffer the loss of their careers. It is also desirable in circumstances like these that there be a public record.

[11]  The evidence which has been accepted is sufficient to show the continuance of threatening and insulting, abusive conduct towards the suspect over an extended period following the infliction of the injury.  Mr Gnech has mentioned every possible mitigating circumstance but I do not think that the circumstances justify any sanction less than dismissal.  I have no doubt that this is a “strike off” offence, that is to say the only appropriate discipline is dismissal from the service.

Orders

[12]  The order that I would propose is that there be a disciplinary declaration that:

1. On 18 May 2007 the respondent Sergeant Damien Chapman was guilty of improper conduct in that he used excessive force against Jamie Graham McCormack.

1. The order that the Tribunal would have made under section 219J of the Crime and MisconductAct if Sergeant Chapman’s employment had not ended is that he be dismissed from the police service.

Susan Booth

[13]  The sanction of dismissal is warranted and the disciplinary declaration should be made for the reasons outlined by Mr Thomas. I agree with the decision.