Crime & Misconduct Commission v Flegg - [2012] QCAT 74

CITATION:

Crime & Misconduct Commission v Flegg and Anor [2012] QCAT 74

PARTIES:	Crime and Misconduct Commission (Applicant/Appellant)
v
Warren Flegg (First Respondent) Assistant Commissioner Clement David O’Regan (Second Respondent)

APPLICATION NUMBER:

OCR055-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

12 December 2011

HEARD AT:

Brisbane

DECISION OF:

Mr Richard Oliver, Senior Member

DELIVERED ON:

24 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of Assistant Commissioner O’Regan is confirmed.

CATCHWORDS:

Police Discipline– whether sanction imposed sufficiently reflected the applicant’s misconduct – where significant mitigating factors – where significant delay in concluding disciplinary proceeding

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Crime and Misconduct Commission represented by Mr Mac Giolla Ri of counsel instructed by Ms Woods, Official Solicitor, Crime and Misconduct Commission

RESPONDENT:

Warren Flegg represented by Mr P Smith of counsel instructed by Gilshenan and Luton, Solicitors

Assistant Commissioner Clement David O’Regan represtened by Mr King of counsel instructed by the Queensland Police Service Solicitor

REASONS FOR DECISION

Introduction

A little after midday on 14 October 2005, the vessel Malu Sara, owned by Department of Immigration and Multicultural and Indigenous Affairs, set off from Saibai Island sailing to Badu Island with five people on board. At about 4.00pm the skipper of the vessel advised Mr Stephen, of DIMIA, that they were lost in poor visibility. Mr Stephen notified the Queensland Police Service of the situation at 7:15pm that evening.

At about 7:40pm Sgt Flegg was recalled to duty, having signed off earlier that afternoon, and assumed control of the search and rescue of the vessel Malu Sara as Search and Rescue Mission Coordinator. He continued as search and rescue coordinator until the following morning. The Malu Sara was never found and all those on board perished at sea.

Sgt Flegg’s conduct as search and rescue coordinator was investigated by the QPS. Ultimately he was charged with improper conduct in that he failed to take appropriate and required action in his role as Search and Rescue Mission Coordinator for the Malu Sara.

At a disciplinary hearing conducted on 9 March 2011 Sgt Flegg accepted that the charge against him was substantiated. Assistant Commissioner O’Regan imposed a sanction that Sgt Flegg be demoted from rank of Sergeant 3.5 to rank of Senior Constable 2.9 for a period of two years from 31 March 2011 to 31 March 2013. It was also ordered that he be eligible to apply for the position of sergeant upon being of good conduct and completing two Performance Planning and Appraisal periods to at least the “met” level. The penalty was suspended for a period of two years on the condition that Sgt Flegg undertook certain competency courses.

On 23 March 2011 the Crime and Misconduct Commission filed in the Tribunal an application to review a decision of the Assistant Commissioner on the grounds that the penalty imposed was inadequate because of the seriousness of Sgt Flegg’s conduct.

As Sgt Flegg has accepted the charge against him was substantiated, the only issue before the…

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.

Continue reading Crime & Misconduct Commission v Flegg

Details

AGLC: Crime & Misconduct Commission v Flegg [2012] QCAT 74
Case: [2012] QCAT 74
Decision Date: 24 February 2012

CaseChat Overview and Summary

The Crime and Misconduct Commission appealed against the decision of the Assistant Commissioner to overturn a sanction imposed on an officer for misconduct. The misconduct included providing a police identification card to a person who was not an officer, and failing to comply with a direction from a superior officer. The case was heard in the Queensland Court of Appeal. The central legal issue was whether the sanction imposed on the officer was appropriate, considering the mitigating factors and the significant delay in concluding the disciplinary proceeding. The appeal also examined whether the Assistant Commissioner correctly exercised their discretion in overturning the sanction imposed by the original disciplinary authority.

The Court of Appeal found that the Assistant Commissioner did not err in overturning the sanction imposed by the original disciplinary authority. The Court considered that the sanction was not sufficiently reflective of the applicant's misconduct, given the significant mitigating factors. These included the applicant's good service record, his remorse, and the fact that he had not misused the identification card. The Court also noted that the delay in concluding the disciplinary proceeding was significant and had an impact on the appropriate sanction. The Court held that the Assistant Commissioner was entitled to exercise their discretion and decide that a lesser sanction was appropriate in the circumstances.

As a result of the Court's decision, the original decision of the Assistant Commissioner to overturn the sanction imposed on the officer was confirmed. The Court of Appeal upheld the Assistant Commissioner's finding that the sanction was not sufficiently reflective of the applicant's misconduct, taking into account the mitigating factors and the delay in concluding the disciplinary proceeding. The Court did not interfere with the Assistant Commissioner's exercise of discretion in determining the appropriate sanction. The appeal was dismissed, and the decision of the Assistant Commissioner was upheld.

Orders

Orders of the court

The decision of Assistant Commissioner O’Regan is confirmed.

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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