Deputy Commissioner Peter Martin v King

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Deputy Commissioner Peter Martin v King [2019] QCATA 77

PARTIES:

DEPUTY COMMISSIONER PETER MARTIN
(appellant)
v

DAVID KING

(respondent)

APPLICATION NO/S:

APL296-17

ORIGINATING APPLICATION NO/S:

OCR195-16

MATTER TYPE:

Appeals

DELIVERED ON:

27 May 2019

HEARING DATE:

20 April 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member McLennan

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where alleged misconduct that officer stole money – where original Tribunal considered charge was not substantiated

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – whether leave to appeal should be granted– where Tribunal gave consideration to inconsistency and gaps in transcript evidence – whether error in Tribunal’s approach

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 142(3)(b)

Allesch v Maunz (2000) 203 CLR 172
Briginshaw v Briginshaw (1938) 60 CLR 336
Cui v Kim & Ors [2014] QCATA 33
House v The King (1936) 55 CLR 499
King v Deputy Commissioner Peter Martin [2017] QCAT 291
Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

Applicant:

Mr S McLeod, instructed by Queensland Police Service Legal Unit

Respondent:

Mr M Black, instructed by Gilshenan and Luton Legal Practice

REASONS FOR DECISION

  1. On 8 December 2014, Constable Dunkley (‘Dunkley’) and Constable Warren (‘Warren’) requested assistance with an arrest in suburban Townsville. They had searched and questioned a man who was seated inside a utility motor vehicle with a flat tray. There was a tool box bolted to the utility’s flat tray. During the search, the man handed $905 in cash to Warren who counted the money. Warren handed the cash to Dunkley who placed it on the flat tray up against the tool box on the driver’s side of the utility.

  2. Acting Sergeant King (‘Officer King’) responded to their call for assistance and arrived at the scene shortly followed by a second back up crew: Constables Polman (‘Polman’) and Chew (‘Chew’). Shortly after these arrivals, the man was arrested and removed from the scene. At the watch house, the arrested man asked about the money and it was discovered to be missing.

  3. An internal Queensland Police Service (‘QPS’) investigation ensued. Each of the officers was interviewed. Video footage captured by a body camera worn by Dunkley at the scene was viewed.

  4. The Deputy Commissioner subsequently brought a disciplinary charge of misconduct against Officer King. It was alleged that Officer King had dishonestly taken the $905. The particulars of the charge included allegations as follows:

    ·Whilst Constables Warren and Dunkley were placing [the arrested man] into the back of the police van, you walked around to the driver’s side of the [arrested man’s] vehicle, in the immediate vicinity of the $905 cash;

    ·You took possession of this money from the rear of the vehicle;

    ·You failed to lodge this money as an…

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Details
Case
[2019] QCATA 77
Decision Date

CaseChat Overview and Summary

In the matter of Deputy Commissioner Peter Martin v King, the Court of Appeal was tasked with reviewing the decision of the Queensland Civil and Administrative Tribunal (QCAT) which found that the charge against Officer King, alleging he stole money, was not substantiated. The Deputy Commissioner of Police appealed against the QCAT's decision, arguing that the Tribunal had erred in its consideration of the evidence and the standard of proof applied. The Court of Appeal was required to determine whether the QCAT had erred in law, fact or discretion in its consideration of the evidence, and if the Tribunal had correctly applied the standard of proof required to substantiate the misconduct charge.

The Court of Appeal found that the QCAT had carefully considered the evidence, including the video footage and testimonies of various officers. The Tribunal identified inconsistencies and gaps in the evidence, particularly concerning the timing of when the money went missing and who searched the vehicle. The Deputy Commissioner argued that the Tribunal should have focused on the video evidence to infer that Officer King took the money. However, the Court of Appeal held that the Tribunal was not in error by considering all available evidence and that focusing solely on the video evidence would have been inappropriate given the limited nature of the appeal process. The Court of Appeal emphasised that the Tribunal's role was to find facts and draw inferences from the evidence presented, and that the inconsistencies identified by the Tribunal meant that the Deputy Commissioner's inference was not the only one open on the evidence.

Based on its findings, the Court of Appeal dismissed the appeal, affirming the QCAT's decision that the charge against Officer King was not substantiated. The Court found that the QCAT had not erred in its analysis of the evidence and the standard of proof, and that the Deputy Commissioner's arguments did not establish that the QCAT had acted on a wrong principle, failed to consider relevant matters, or was influenced by irrelevant considerations. Therefore, leave to appeal was refused.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Finally, the Tribunal was not in error in concluding that the evidence left it open to find that another officer (other than Officer King) took the money with the honest intention of dealing with it appropriately but misplaced it. Warren and Dunkley’s evidence confirms that they both forgot about the money. When they learned the money was missing, they searched their pockets and their vehicle. They were uncertain about whether one of them had dealt with it in some way.Ground 4: Did the Tribunal err in finding that the evidence fell short of establishing when the money went missing The Deputy Commissioner submits that the evidence is consistent, in that no-one saw the money after the ‘thirty four second window of opportunity’, and that therefore, it was gone during that period. As earlier discussed, Polman’s evidence left open a potential finding that the money may have been on the utility tray when the search commenced but that he did not see it. It was, as the Tribunal found, equivocal. Polman was not sure where Officer King was standing.When questioned about the money, and the possibility that it was there and he had not seen it, he said: ‘I hope I would’ve noticed the money there but yeh maybe. I don’t know’.[43] Further, Chew, although certain the money was not there when he opened the toolbox from the driver’s side, was, according to Polman, initially engaged in a ‘QV’ rather than the search of the vehicle .[44] Accordingly, the point in time when his evidence confirms the money was gone is uncertain, but appears to be later than the time at which the search began.[43]Respondent’s Outline of Submissions filed 18 January 2018, 5 [22] (a).[44]King v Deputy Commissioner Peter Martin [2017] QCAT 291, 14 [52]. Each discrepancy may have been minor in itself, ‘subtle’ as Mr McLeod suggests, but considered together (in the context of the inference that must necessarily be drawn if the charge was to be substantiated, and having regard to the applicable onus and standard of proof) we accept that it was open to the Tribunal not to be satisfied that the alleged misconduct was substantiated on the evidence. A thorough review of the video evidence and the transcript evidence, her dissection of the inconsistencies and gaps that remained untested by subsequent interview of the officers, taken together, led the learned Member to conclude that the inference that Mr King took the money was unreliable. The Appeal Tribunal does not accept that the learned Member focused unnecessarily on the search of the tool box and the interior of the cabin. She examined time,[45] placement,[46] as well as absence or presence of the officers,[47] in the search of the tool box and interior of the cabin.[48] The discrepancies identified by the Tribunal raised legitimate concern about relying on the video evidence as explaining when the money went missing. [45]Ibid, 18 [71] (a). [46]Ibid, (d).[47]Ibid, (b).[48]Ibid, [71].Ground 5: Did the Tribunal err in its application of the standard of proof?

Decision

Reasons for decision

The appeal process is for correcting legal, factual or discretionary error by the original tribunal.[8] A decision is not erroneous, simply because one conclusion is preferred over another possible view.[9] An appeal tribunal will not usually interfere with the tribunal’s exercise of its discretion unless, for example, it is demonstrated that the tribunal acted on a wrong principle, failed to take into account material or relevant considerations, or was influenced by irrelevant matters.[10] [8]Allesch v Maunz (2000) 203 CLR 172, 180 [23].[9]Cui v Kim & Ors [2014] QCATA 33, 5 [9].[10]House v The King (1936) 55 CLR 499, 504.The Tribunal’s decision Having explained the Tribunal’s role on the review, the learned Member relevantly set out the allegation of misconduct made against Officer King.[11] [11]King v Deputy Commissioner Peter Martin [2017] QCAT 291, 5 [20]. The Tribunal considered the video and other evidence. It accepted that Dunkley placed the $905 on the utility tray against the toolbox.[12] It accepted that Dunkley and Warren were the only officers who knew about the money.[13] It accepted that none of the other officers who attended were briefed about its existence.[14] It discussed the evidence about what happened after Officer King arrived at the scene, considering which officers were where and who left when, noting the inconsistencies in the officers’ evidence about the actions they each took after the arrested man had been placed inside the police van and during the search of the utility. [12]Ibid, 7 [24].[13]Ibid, 8 [30].[14]Ibid, 7–8 [25]–[30]. The learned Member then considered what each of the relevant officers said about the missing money. Dunkley said that he had forgotten about the money, as did Warren, who said they were focused on the arrested man.[15] Dunkley said that when the arrested man raised the money, he and Warren both searched their pockets, looked in their police vehicle, and he (Dunkley) then telephoned Officer King to report it.[16] [15]Ibid, 11 [41]; 12 [46].[16]Ibid, 12 [46]. The Tribunal then considered the Deputy Commissioner’s submissions about when the money went missing. That is, the Deputy Commissioner contended that it must have been taken during the thirty-four seconds from when it was last seen on the video, until ‘when it was gone’,[17] contending that the Tribunal could infer that Polman would have seen the money had it been there when he searched the utility. The Tribunal was not satisfied that the money was missing prior to the search of the utility.[18][17]Ibid, 16 [60].[18]Ibid, [62]. In reaching this conclusion, the learned Member discussed the equivocal evidence of Polman about whether he saw the money when he opened the toolbox ‘from the passenger side,’ observing that his evidence had not been properly tested by the QPS.[19] The learned Member had set out Polman’s evidence to the effect that he hoped he would have noticed any money during the search, but conceded that it was possible it was there and he didn’t see it.[20] She also referred to Chew’s unequivocal evidence that he did not see any money, and that the toolbox could only be opened from the driver’s side,[21] and that the evidence of the officers’ was inconsistent as to which officer or officers searched the passenger and driver’s side of the cab of the utility and the toolbox, and from which side of the utility.[22] In doing so, the learned Member also identified that, when inconsistency occurred, the QPS investigating officers had not clarified when each of the events were said by the respective officers to have occurred.[23] [19]Ibid, 17 [63].[20]Ibid, 14 [53]–[54]; 17 [63].[21]Ibid, 17 [64].[22]Ibid, 17–18 [65]–[70].[23]Ibid, [66]–[70]

Ratio Decidendi

Legal Principle Established

The Deputy Commissioner submits that the learned Member had failed to give proper weight and draw the proper inferences from the evidence of Dunkley, Polman, and Chew in reaching its conclusions, by distracting itself and focussing on ‘subtle’ inconsistencies in the evidence. It is enough, he submits that Officer King was the last person in the video, close to where the money was last seen. He submits that the Tribunal need not to have gone further.Consideration of the issues The Deputy Commissioner says that the Tribunal should have drawn the inference from the relevant thirty four seconds of video evidence that Officer King took the money. The video evidence shows the money placed on the utility tray.[36] Dunkley stated, and the Tribunal accepted, that he placed the money on the flat tray up against the tool box which was bolted to the utility tray.[37] This occurred before King arrived.[38] This is corroborated by the video evidence.[39] Dunkley and Warren corroborated King’s evidence that he did not know of the money when he arrived at the scene.[40][36]King v Deputy Commissioner Peter Martin [2017] QCAT 291, 6 [22].[37]Ibid, [23].[38]Ibid, [22].[39]Ibid, 7 [24]. [40]Ibid, [26]. King maintained that he did not know of the money until after he had returned to the police station.[41] Other than the arresting officers, Dunkley and Warren, who both handled the money, the subsequent attending officers, Polman and Chew, did not know of the money’s existence, and Dunkley did not remember briefing any other officer as to its existence. The Tribunal found that Polman was equivocal as to whether the money was there when he searched the utility, whereas Chew was certain it was not when he searched. Further, the Tribunal held that it was uncertain, on the available evidence, when Chew undertook his search; given the evidence that he first conducted a ‘QV’. The Deputy Commissioner concedes that the Tribunal was not mistaken as to the evidence. Those findings were open to the Tribunal. The Deputy Commissioner does not argue that they were not. He submits in effect that the Tribunal should not have given the inconsistencies and gaps in the evidence, and/or their relevance, the weight given to them by the learned Member in drawing her conclusions and, it seems, further, that she ought to have given the video evidence greater weight.[41]Ibid, [25]. We do not accept that submission. The Tribunal carefully, and appropriately given that its review was by way of fresh hearing on the merits, considered all of the available evidence before it reached its conclusions. It would have been an error for the Tribunal to focus its attention upon the video evidence to the exclusion of the other available evidence in the manner that the Deputy Commissioner argues it should have done. The Tribunal had no opportunity to have the evidence tested before it, bearing in mind the limited nature of the hearing to be conducted, whereby no witnesses are seen or heard in the review and the Tribunal considered the material before the original decision-maker.[42] The Tribunal could consider only the evidence it had, as it was presented in order to find the facts and draw inferences. As the Tribunal’s analysis reveals, the consequence of the inconsistencies it identified was that the inference contended for by the Deputy Commissioner was not the only inference open on the evidence. [42]Ibid, 5 [17]–[18].