Garth v Queensland Police Service
[2013] QCATA 357
•21 June 2013
| CITATION: | Garth v Queensland Police Service [2013] QCATA 357 |
| PARTIES: | Mr Travis Garth (Applicant) |
| V | |
| Queensland Police Service (Respondent) |
| APPLICATION NUMBER: | APL329-12 and APL352-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 13 March 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr C Brabazon QC, Member Ms K O’Callaghan, Senior Member |
| DELIVERED ON: | 21 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is allowed. 2. The QCAT order of 20 April 2012 is set aside. 3. The categorisation of the charge of misconduct is confirmed. 4. The parties are requested to make further submissions as to the appropriate sanction by 4pm on 12 July 2013. |
| DELIVERED ON: | 7 August 2013 |
| ORDERS MADE: | 1. Mr Garth’s advancement from Constable pay level 1.5 to Senior Constable pay level 2.1 is to be deferred from 14 August 2011 until 14 August 2012; 2. Any further pay point progression is to be administered in accordance with Queensland Police Service policy and procedures. 3. The parties have liberty to apply if any further differences arise. |
| CATCHWORDS: | APPEAL – QUESTION OF LAW – OCCUPATIONAL REGULATION – POLICE OFFICER – DISCIPLINARY PROCEEDINGS – MISCONDUCT – where the applicant police officer was photographed posing with a woman with her breasts exposed – where the applicant was on duty and the photograph was taken with the applicant’s phone – where the applicant showed the photographs to other police officers – where the applicant’s conduct was categorised as misconduct at the disciplinary hearing – appropriate punishment Acts Interpretation Act 1954 (Qld), s 38 Police Service (Discipline) Regulations 1990 (Qld), reg 5 Ash Industries Pty Ltd v Plumb [2010] QCATA 53, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by Mr Gnech – Police Service Union. |
| RESPONDENT: | Represented by Mr Nicholson of counsel. |
REASONS FOR DECISION
Mr Charles Brabazon QC, Judicial Member (Presiding Member)
I accept my learned colleague’s description of earlier procedural issues in this litigation – including the surprising, but inevitable, conclusion that the QCAT decision of 20 April 2012 was not effective because QCAT had no power in this case to deal with a breach of discipline – even though it can do so if there is a finding of misconduct.
At about 1:00 pm on 12 September 2010 Constable Travis Garth entered a bar in Brisbane’s Valley precinct. He had served almost four years in the Queensland Police Service, in the Valley area. He had with him two junior Constables. They were all in uniform.
An attractive woman was dancing with a female friend. She stopped and spoke to him. She told him she had recently had “a boob job”. She asked him if he wanted to see her breasts.
Constable Garth was married, with children. He had done well in the QPS. There were no black marks on his record. Later, more senior colleagues were to say that he was a capable and enthusiastic officer. They gave him good references.
He made a mistake. He agreed to look at her breasts. He, the girl, her female friend, and the two other offices went out into Constance Street. They walked to a spot underneath a street light.
She twice pulled her dress down to her waist. She and her friend were laughing. Constable Garth allowed her to wear another officer’s cap. He held out his handcuffs, pretending to handcuff her. One of the other constables used his mobile phone to take a photo of them. The other constable used his phone to take a photo. The girlfriend took a photo.
It seems that two people walked past. It is possible, but not certain, that they saw what happened.
A more senior officer arrived. He told Constable Garth to delete the photos. But he did not do that. Later at the police station, he said to others, “I’ve just had the best night ever”. He showed them the photos.
Officers from Ethical Standards Command intervened. Twelve officers were interviewed. Seven were dealt with for various police offences. Constable Garth was accused of misconduct.
He was interviewed on 15 September 2010. Nothing happened until 22 June 2011. He was given a notice to attend a hearing. At the hearing, a “consensual discipline process” was offered. He declined that.
On 6 July 2011 he was found to have been guilty of misconduct. A sanction was imposed – his rank was reduced from constable paypoint 1.5 to constable paypoint 1.2. His advancement to paypoint 1.3 was deferred for 12 months.
Constable Garth must have been looking forward to 14 August 2010. He would have served for four years. With his good record, progression to senior constable was assured. But the finding of misconduct stopped that. He remains a constable, continuing to do the same police work, as before.
He filed an application to review that decision. He retained a solicitor to assist in his case. An application was made to QCAT. On 20 April 2012, the Member’s decision found that he was not guilty of misconduct. Rather, he had committed a serious breach of discipline. The Assistant Commissioner’s order was varied, in his favour. The Member ordered that he be reduced in rank from paypoint 1.5 to paypoint 1.3, with no progress to paypoint 1.4 for 12 months.
On 14 October 2012, he appealed against that decision. This judgment is QCAT’s response.
The appeal has to be allowed, because of the technical irregularity.
In my opinion, reached with some hesitation, Constable Garth was guilty of misconduct, in that his conduct was “improper or unbecoming an officer” – see the definition of “misconduct” in the Police Service Administration Act 1990:
misconduct means conduct that –
(a)is disgraceful, improper or unbecoming an officer; or
(b)shows unfitness to be able to continue as an officer; or
(c)does not meet the standard of conduct the community reasonably expects of a police officer.
Senior Member Oliver found that Constable Garth was guilty only of a breach of discipline, not amounting to misconduct. He referred to some informal examples of police conduct given by Ethical Standards Command. For example, “improper behaviour” might be a breach of discipline, while such things as “false complaint”, “untruthfulness” or “sexual misconduct” could be misconduct.
It can be seen that conduct that is “improper or unbecoming an officer” may include conduct that is not serious, from the point of view of an ordinary member of the public. It reflects the old idea, that a military officer holding the sovereign’s commission was expected to behave in a suitably proper way. Here, “officer” is used to describe all ranks – police recruits are included in the definition. The point is, that such conduct includes behaviour that is not necessarily seriously improper or unbecoming.
On this occasion, his behaviour was at the bottom of the scale of misconduct. There was no violence or dishonesty. The reputation of the police force has not been damaged. He made an unfortunate decision on the spur of the moment. He should not have done it. He was suddenly presented with an enticing opportunity – unlike his usual tasks such as dealing with drunks, fights, and men urinating in the street. This Tribunal has power to decide the appropriate punishment.
Counsel made submissions about the final orders. For the QPS Mr Nicholson asked that the original sanction be restored – “that there be a reduction of three paypoints, to take effect from 6 July 2011, and with advancement to paypoint 1.4 deferred for 12 months.” He also suggested that the sanctions imposed on the other police officers because they looked at the photographs, should be taken into account, in deciding the present order.
Mr Gnech, for the officer, mentioned several possible orders. Fundamentally, he maintained that the orders should concentrate on Constable Garth’s position up to the present time – that is, not attempt to project the impacts of his punishment into the future. He submitted, in effect that, the sanction imposed on 6 July 2011 should now be altered, to have the effect of imposing a punishment valued at $6,000 - $7,000, which might be taken out of his salary. He submitted that his promotion to senior constable should be backdated to 6 July 2011. That would mean payment now of the increased salary that he would have had after a progression to senior constable.
It might be noted that submissions about any future losses varied greatly. For Mr Garth, an accountant’s report assumed that he might remain in the force to July 2021. It assumed that the impact of a sanction of two paypoints would be taken into account. Shift allowances, base pay, and superannuation were also taken into account. The net loss of benefits, by 2021, would be $91,215.
Mr Nicholson suggested that the present value of such future losses would be no more than $25,000.00, over five years. In any case, it can be seen that such punishments would be very heavy, particularly so when the moderate salary of a police constable is taken into account.
Constable Garth’s future years in the police force are an unknown quantity. He is a fit and capable young man. In my opinion, the appropriate approach, is to consider what has happened up to the present time, and base any orders on that more certain foundation.
There have been delays in the QPS, and in this Tribunal. The reasons for that need not be considered here. However, it can be said that Constable Garth has not been responsible for the delay. It is necessary to frame an order that does not allow the passing of time to inflict a greater punishment.
His sanction was imposed some 10 months after the Valley incident. It can now be seen that the QPS has been asking for a sanction that is a good deal too severe. That is because recent QCAT decisions, in my respectful opinion, have established a more appropriate level of sanction. For example, there was a significant decision in the “police van case”, where intoxicated officers took off their clothes and ran naked around the van, when it stopped at several traffic lights. See Murray v Deputy Commissioner Stewart [2011] QCAT 583. The facts in that case show misconduct that was more serious than the present case. The off duty police ran naked around the van when it stopped, several times, at traffic lights. Members of the public saw the naked men and there was a good deal of unfavourable reporting in the newspapers. The loss of two pay points for 12 months was the order, after an appeal by Sergeant Murray.
In effect, the impact was a loss of about $6,000. The previous sanction would have meant a loss of around $25,000.
Murray was a sergeant. A slightly lower loss was imposed on Senior Constable Staples – see [2011] QCAT 582. His conduct was not so serious. He suffered the loss of one paypoint in salary, for 12 months.
It might be noted that the sanctions imposed on the other officers, connected with Constable Garth’s conduct, are more severe. It is inappropriate here for the QPS to seek a penalty in line with those decisions. Some of them are surprisingly harsh. They were penalties that seem to have been intended to impose punishment, rather than reinforce the need for discipline.
It is difficult to be certain about the amount of his financial loss. The accountant’s schedule shows that his loss of salary from the time of the sanction, 6 July 2011, to 6 July 2013 would have been $31,485. That means that his loss of salary up to the present time is potentially some $30,000. If his deserved loss of salary is set at $6,000 (which would be appropriate) then it can be seen that he is out of pocket by about $24,000.00.
If it is right to assume that Constable Garth has diligently continued to serve as an effective police officer, then an attempt is necessary to fashion a final order which will treat him justly. He has not been responsible for the delays up to the present, from 6 July 2011, when the misconduct finding was made.
It was raised at the hearing that there might be an opportunity to make further submissions about the appropriate order. The substance of the order might be along these lines:
(a)Set aside the QCAT order of 20 April 2012.
(b)Order that Constable Garth progress to the rank of Senior Constable, effective from 6 July 2012.
(c)Order that his salary, from 6 July 2012 to the present, be based on the salary that he would have been paid, had there been no reduction made on 6 July 2011.
(d)Order that he be paid outstanding salary of $24,000 to the present time (i.e. an amount that takes into account the punishment of $6,000 loss of salary).
Kerrie O’Callaghan, Senior Member
The facts about the incident are set out in my learned colleague’s decision. I have set out the history of the application, findings on specific preliminary points, and grounds of appeal.
I have reached a different view on the appropriate sanction.
Disciplinary action followed as a consequence of the incident.
Senior Sergeant Byles and the other junior constable who took photos of the incident were charged under the Police Services Administration Act 1990. Both elected to have the matter dealt with through the administrative consensual disciplinary process. Sergeant Byles received a sanction of a reduction from Sergeant paypoint 3.5 to Sergeant paypoint 3.1 for not reporting the misconduct. The junior constable received a sanction of reduction from Constable paypoint 1.3 to Constable paypoint 1.1.
Constable Garth did not accept the consensual disciplinary process and the matter proceeded to a disciplinary hearing. Constable Garth’s conduct was found to amount to misconduct and he was ordered to be reduced in rank from Constable paypoint 1.5 to Constable paypoint 1.2 with advancements deferred for 12 months.
Constable Garth applied for that decision to be reviewed by QCAT.
On review the Tribunal found that the conduct fell short of misconduct and was instead a serious breach of discipline.
The learned Senior Member made an order reducing the sanction to imposing a reduction in Constable Garth’s level of rank from Constable paypoint 1.5 to Constable paypoint 1.3 with no advancement for a period of 12 months.
Following the decision QPS applied to the Tribunal to reopen the decision seeking to delete those paragraphs in the findings which made reference to a finding of breach of discipline. It was submitted that it was not open to the Senior Member to make findings about the classification of the conduct because the only ground of review raised was sanction and not substantiation of the charge.
The Senior Member refused the reopening on the basis that no reopening ground as defined in the QCAT Act was established.[1]
[1] Assistant Police Commissioner Wright v Garth [2012] QCAT 488 at [15].
Constable Garth then lodged an appeal against the Tribunal’s review decision relying on 2 grounds, firstly that upon finding that the conduct was a breach of discipline the Tribunal should have made an order that the matter was unsubstantiated rather than impose a sanction, or alternatively that the sanction imposed was manifestly excessive.
The QPS lodged a cross appeal citing a number of grounds including that the Senior Member erred in not limiting the application to a review of the sanction, or alternatively in not being satisfied that the conduct was misconduct. QPS also challenged the sanction imposed by the Tribunal on a number of bases.
The grounds of appeal revealed a number of issues in dispute between the parties. They both agree however that the Tribunal does not have jurisdiction to impose a sanction where a finding is made that the conduct in question amounts to a breach of discipline rather than misconduct. This has been confirmed in the Appeals Tribunal decision of DA v Deputy Commissioner Stewart[2] where the former Deputy President commented:
The effect of the relevant provisions of the Police Service Administration Act 1990 and the Crime and Misconduct Act 2001 is that QCAT only has jurisdiction to deal with conduct that qualifies as misconduct.[3] (Footnotes omitted)
[2] [2011] QCATA 359.
[3] Ibid [84].
Consequently the Tribunal decision to impose a sanction following a finding that the conduct amounted to a breach of discipline was beyond the jurisdiction of the Tribunal. It is appropriate that that outcome is rectified if possible by the Appeal Tribunal.
Preliminary issues
There were 2 preliminary issues raised by the parties which were determined at the hearing of the appeal. It is appropriate to record those findings, and the Appeal Tribunal’s reasons.
§Is leave to appeal necessary
Leave is not required if the appeal is on a question of law, it is however required on a question of fact, or mixed law and fact.[4]
[4] QCAT Act ss 146, 147.
Both parties submitted that leave was not necessary in this case as the appeal related to questions of law. Constable Garth submits that his first ground of appeal namely that the Tribunal erred in not making a finding that the charge was unsubstantiated, is a matter of law. The Appeal Tribunal agrees with that submission.
QPS submits that its grounds of appeal which include that the Tribunal committed errors in failing to draw appropriate inferences, placing disproportionate weight on Constable Garth’s personal mitigating circumstances, and not giving sufficient weight to certain factors, involve issues which have previously been held to be questions of law.[5]
[5] Ash Industries Pty Ltd v Plumb [2010] QCATA 53.
The Appeal Tribunal accepts that this appeal is on questions of law, and that leave to appeal is not necessary.
§Extension of time for QPS to file the appeal
It is accepted that the final day for filing an appeal was 9 October 2012. QPS filed its cross appeal on 10 October 2012.
QPS say its appeal was nonetheless within time, because a public holiday fell during October. It submits that because a public holiday is an “excluded day” under the Acts Interpretation Act 1954,[6] the result is that the time for filing the appeal is extended, by 1 day. The Appeal Tribunal does not accept that submission. We accept Constable Garth’s submission that it is only if the last day for the filing was an “excluded day” that the time for filing would be taken to be the day after.
[6] See s 38.
The cross appeal was 1 day out of time. The question is whether an extension of time should be granted.
The QPS referred the Tribunal to the decision of the Honourable James Thomas AM QC in Crime and Misconduct Commission v Chapman and Anor[7] wherein he stated the principles to be considered in an application to extend time under s 61(3) of the QCAT Act.
[7] [2011] QCAT 229.
At paragraph [7], he said that:
The only statutory requirement regulating the exercise of the tribunal’s discretion is section 61(3) which states:
“The Tribunal can not extend or shorten the time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.”
He goes on to state the other factors that are relevant in considering an extension of time which are:
a.Whether a satisfactory explanation is shown to account for the delay.
b.The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed upon the preliminary material).
c.Prejudice to adverse parties.
d.Length of the delay.
e.Overall whether it is in the interests of justice to grant the extension.[8]
[8] Ibid [9].
QPS submitted that the findings of the Honourable James Thomas AM QC in that decision applied in this case, namely:
No prejudice was occasioned to any adverse party, and the present case is an obvious one in which an extension should be granted. In cases of a relatively short and properly explained delay, when there is no real prejudice or disadvantage to other parties, it is difficult to conceive an extension being refused.[9]
[9] Ibid [12].
Constable Garth opposed the granting of an extension of time. He argued that no satisfactory explanation was given for the delay and there was potential for him to be severely prejudiced if the extension were granted in that there was a possibility that the sanction imposed by the Tribunal could in fact be increased by the Appeal Tribunal.
The Appeal Tribunal determined at the hearing that because of the short period of delay and the importance of the questions raised by the QPS in its appeal, particularly whether the classification of the conduct as breach of discipline was an error, meant it was in the interests of justice to grant the extension of time.
Issues arising from the grounds of appeal
The appeal and cross appeal give rise to a number of issues to be considered.
§Whether there was a decision by the Tribunal that the conduct was characterised as the breach of discipline
This issue was not dealt with in written submissions but was raised orally by the counsel for QPS at the hearing. The argument was to the effect that although the learned Senior Member made reference and indeed findings in his reasons that the conduct was more appropriately categorised as a breach of discipline, his actual decision was only a reduction in the sanction.
The Appeal Tribunal is satisfied that there is sufficient comment and consideration given by the learned Senior Member in his reasons in relation to this issue for it to be clear that a decision was made by the Tribunal - that the conduct amounted to a breach of discipline and not misconduct.
§Was it open to the Tribunal to make a finding that there was a breach of discipline when the review application did not specify that Constable Garth sought a review of the categorisation of the charge as misconduct.
QPS argued that it was the Tribunal’s function to review only the sanction imposed, because the issue of breach of discipline versus misconduct was not a ground of review raised in Constable Garth’s application. Further, it was not a ground contained in the “grounds of review” document filed by his solicitors.
QPS does concede that, at the original hearing submissions on this issue were made.
Constable Garth submits that there is no basis for this argument in that classification of the conduct was always a live issue at the hearing. He says that when the application was filed he was unrepresented. He points out that the QPS made the same argument in the application to reopen and the Senior Member commented in the reopening decision that the distinction between misconduct and breach of discipline was clearly an issue in contention at the hearing upon which the parties expected a finding would be made.[10] It is noted that Constable Garth made written submissions on this issue and, indeed, QPS filed submissions in response.
[10] Assistant Police Commissioner Wright v Garth [2012] QCAT 488 at [10].
The Appeal Tribunal has no difficulty with the notion that the Tribunal could make a finding in relation to classification of the conduct even though it was not specifically raised in the application to review. It was squarely raised as an issue for determination at the hearing.
The Tribunal on a review has all of the rights and functions of the decision maker of the decision being reviewed. It is a fresh hearing on the merits. The purpose of the review is to produce the correct and preferable decision.[11] It is consistent with those principles that if the issue of the appropriateness of the classification of the charge is raised during the hearing and the Tribunal forms a different view than that of the original decision maker, then it should set aside the decision and substitute its own decision. It follows that the ground of appeal raised by QPS that the Tribunal erred in not limiting itself to review of the sanction is rejected.
§Should the order have been only that the charge of misconduct was unsubstantiated, or should the matter have been referred back to QPS for reconsideration
[11] QCAT Act s 20(1).
Constable Garth submits that the Tribunal erred in that, having found that the conduct amounted to a breach of discipline and not misconduct, it did not simply make a decision that the charge of misconduct was unsubstantiated. He says it would then have been a matter for the QPS to take it further if it so decided.
The QPS say that if the Tribunal made the correct decision in classifying the conduct as breach of discipline and not misconduct (which it disputes and which is one of its grounds of appeal) then the appropriate course was for the Tribunal to refer the matter back to the QPS for further consideration on sanction.
Constable Garth’s argument was that it was not open to the Tribunal to refer the matter back to QPS for reconsideration. Having found that the matter was a breach of discipline, he submitted that the Tribunal then had no jurisdiction to make any further orders on the basis that it only has jurisdiction to make orders when there is a finding of misconduct.
The Appeal Tribunal does not agree with that submission. The Tribunal is empowered on a review to confirm or amend the decision; set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate.[12]
[12] Ibid s 24(1).
The Tribunal had jurisdiction to consider the matter as it was reviewing a finding of misconduct. It conducted that review and found that the charge should have been classified as one of breach of discipline. It follows that it had the power to return the matter to QPS for reconsideration of the sanction. It did not have power to impose the sanction itself.
It follows that that ground of appeal raised by Constable Garth is rejected. If the Appeal Tribunal concludes that the Tribunal did not err in finding that the conduct was classified as a breach of discipline then the appropriate order for this Appeal Tribunal would be to set aside that part of the decision with respect to the sanction and refer the matter back to QPS for reconsideration.
This leads to the next issue for determination - a ground of appeal relied on by the QPS.
§Was the conduct properly classified as a breach of discipline or was it misconduct?
Misconduct is defined in the legislation as conduct which:
(a) is disgraceful, improper or unbecoming of an officer; or
(b) shows unfitness to be or continue as an officer; or
(c) does not meet the standard of conduct the community reasonably expects of a police officer.[13]
[13] Police Service Administration Act 1990 s 1.4.
QPS submits that the Tribunal erred in not being satisfied that the conduct was properly categorised as misconduct. It says that the actions of Constable Garth fall within the scope of subsection (a) and (c) in that the conduct was “improper” and “would not meet the standard of conduct members of the community would reasonably expect of a police officer.” Constable Garth maintains that the conduct was correctly classified as a breach of discipline.
At the hearing of this appeal the presiding Member indicated to the parties that, in our opinion, the appeal on this ground should be allowed as the conduct did amount to misconduct (although at the bottom of the scale) in that it was conduct that was improper or unbecoming of an officer.
In his decision the learned Senior Member made reference to tables extracted from Ethical Commands Training Material which gave example of behaviours which may amount to misconduct, or breach of discipline.
He considered that the examples of “improper behaviour” in the examples of breach of discipline were more akin to Constable Garth’s conduct. He also noted that,
… not every indiscretion or mistake would necessarily be conduct deserving of the description “misconduct” for disciplinary purposes. There needs to some nexus or some factor which raises that conduct to another level or “puts it over the line” so far as the reasonable expectations of the public are concerned.”[14]
[14] Garth v Queensland Police Service [2012] QCAT 261 at [31].
The QPS in its submissions criticised the Senior Member’s use of the tables. It pointed out that the tables used were out of date and said they were only used as learning aides during training sessions to invoke discussion about actions that may amount to breach of discipline, and whether those actions could escalate to misconduct if the improper behaviour is of such a nature that it did not meet the standard of conduct reasonably expected from a police officer.
In response Constable Garth says that the tables are formal documents used by the QPS in the training of police officers to conduct police discipline, and that it was appropriate that the Senior Member had regard to the material in determining the classification of the conduct.
I accept that it was appropriate for the Senior Member to have regard to the tables in coming to the correct and preferable decision about the classification of the conduct. Although a Tribunal is not bound by particular policy directives (and these tables do not go as far as being policy) the Tribunal is entitled to have regard to information that the original decision maker had in making the decision.
I do consider however the conduct of Constable Garth was improper to such an extent that it was raised to another level or “put over the line” so far as the reasonable expectations of the public are concerned. The fact that Constable Garth was the senior officer, the use of the handcuffs and the police cap, and the fact that he participated in the taking of photographs and the circulation of the photos in my view escalates the conduct to the point that it does not meet the standard of conduct that the community would reasonably expect of a police officer.
The sanction – was it manifestly excessive or inadequate?
Both Constable Garth and QPS maintained that the Senior Member erred in the sanction which he imposed. The Assistant Commissioner ordered that Constable Garth be reduced in rank from Constable paypoint 1.5 to 1.2. The learned Senior Member reduced that sanction to a reduction in his level of rank from paypoint 1.5 to 1.3.
On appeal Constable Garth says that the sanction imposed was manifestly excessive in all the circumstances. QPS say that the Senior Member committed a number of errors in reducing the sanction, and that the correct and preferable sanction is the sanction imposed originally by the Assistant Commissioner.
Imposition of a sanction involves the exercise of a discretion.
The circumstances in which an Appeal Tribunal should interfere with that discretion are set out in the High Court’s decision of House v The King[15]:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or effect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its discretion in substitution for his if it has the materials for doing so.[16]
[15] (1936) 55 CLR 499.
[16] Ibid 504-505.
I agree with the Presiding Member that the learned Senior Member did make an error in his exercise of discretion in imposing the sanction. The error is not that the sanction was necessarily excessive or inadequate. Rather, it was the product of the Tribunal’s conclusion that a breach of discipline, and not misconduct, should be the basis for the sanction.
Having determined that the conduct amounted to actual misconduct, it is open for this Appeal Tribunal to consider and make a decision about what the appropriate sanction should be.[17]
[17] QCAT Act s 146(b).
The following issues were put forward by the parties for the Tribunal’s consideration in imposing the appropriate sanction.
§Parity
There was a debate both before the review Tribunal and the Appeal Tribunal as to the role comparable cases should play in the imposition of penalties.
There are two aspects to this issue. Firstly, disciplinary proceedings which involve comparable misconduct and secondly, sanctions imposed on other officers who were are involved in the same incident.
As far as comparable incidents of misconduct are concerned I have considered the cases put before the Appeal Tribunal and although there is no directly comparable case the cases concerning the off duty police officers engaged in the series of “streaking” incidents around a police bus in 2009 are perhaps the closest.[18] Two of the six officers involved reviewed sanctions imposed on them following disciplinary proceedings.
[18] Staples v Deputy Commissioner Stewart [2011] QCAT 582; Murray v Deputy Commissioner Stewart [2011] QCAT 583.
In those cases the sanction imposed by the Deputy Commissioner was reduced on review because of the severe financial consequences; and, also the Tribunal found that the disparity between the sanction imposed on the various officers involved was too great. The sanctions imposed on the officers who sought review of their decisions were higher than the others.
In this case Sergeant Byles misconduct was to not report the actions of Constable Garth. He received a sanction of reduction of Sergeant paypoint 3.5 to Sergeant paypoint 3.1. Because he was at the rank of Sergeant, the financial effect was not as severe.
The junior Constable received a reduction in Constable paypoint 1.3 to paypoint 1.1. This did have financial consequences similar to those imposed upon Constable Garth.
QPS says that Constable Garth’s actions were the most serious because he was the Senior Constable involved so it is appropriate that his sanction not be less than the other officers involved.
Constable Garth submits that the sanctions imposed on the other officers were excessive and that in coming to the correct and preferable decision in this case the Tribunal should not feel obliged to ensure consistency between the harsh penalties imposed on and accepted by the other officers and that to be imposed upon him Garth.
I have some sympathy with that submission. It is important that there be consistency as far as possible (as was the view of the Tribunal in the “nude run” cases). However I also accept that the purpose of the review jurisdiction is to ensure that the correct and preferable decision is made. This means that, if the Tribunal forms the view that the sanction imposed was excessive, then it is for the Tribunal to substitute what it considers the correct and preferable sanction.
These findings are not inconsistent with comments made by the Honourable James Thomas AM QC in Murray v Deputy Commissioner Stewart[19] where he said:
Considerable respect is paid in this Tribunal to the views of the original decision-maker (cf Aldrich v Ross [2001] 2 QR 235), but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own views. Aldrich v Ross (at p 257) recognises that the independent review Tribunal is the only vehicle by which a public perspective is brought to bear in police disciplinary matters, and accordingly there will be cases where it will appropriate and necessary to depart from the views of the original decision maker.
[19] [2011] QCAT 583 at [40].
Both parties agree and the Appeal Tribunal accepts that the object of disciplinary proceedings against a police officer is not to punish or extract retribution but rather, as noted by the learned Senior Member, to protect the public; uphold ethical standards within the QPS; and, promote and maintain public confidence in the police service. It is also accepted that as identified by the learned Senior Member, a sanction involving a reduction in paypoints will necessarily have a punitive element.
Constable Garth argues that the sanction imposed in this case is purely punitive.
He produced evidence from an accountant containing an analysis of the financial consequences of the penalty imposed by the Assistant Commissioner. The report indicates that the imposition of a reduction of 3 paypoints had consequences for Constable Garth until 2023, and will effectively cost him in excess of $100,000.00.[20]
[20] Parfitt Chartered Accountants Report, Exhibit 2 in review hearing (OCR149-11).
The QPS submits that this figure should not be accepted by the Tribunal. It said that the report fails to take into account that progression for a police officer is not automatic, and that there is no certainty that Constable Garth would progress in the way suggested in the report. The Tribunal accepts that it is inappropriate to look as far into the future as 2023. It does however accept on the basis of the evidence that was before the Tribunal[21] that it is likely that Constable Garth would have progressed to the next level being paypoint 2.1 with the rank of Senior Constable. He was due to reach this position 4 weeks after the imposition of the sanction. Prior to this incident Constable Garth had an impeccable career record. He also produced impressive references to the original Tribunal.
[21]Transcript of Proceedings, Garth v Queensland Police Service (QCAT, OCR149-11, Senior Member Oliver, 20 April 2012) [5]-[8].
Accepting that his progression to Senior Constable at paypoint 2.1 was a likely scenario, the cumulative loss over a 5 year period suffered as a consequence of the sanction imposed and the resulting delay in promotion is on Constable Garth’s evidence, in excess of $35,000.00.
The QPS again disputes this figure and says that a more likely financial consequence is around $25,000.00. In either case, I consider that financial detriment in the vicinity of $25,000 to $35,000 is excessive and disproportionately punitive.
It goes beyond the protective purpose of disciplinary proceedings. I agree with Constable Garth’s submission that the public would not expect the imposition of such a heavy financial sanction for the conduct engaged in this instance. It was improper and inappropriate, but not dishonest or corrupt.
It was argued by counsel for Constable Garth that the Appeal Tribunal could abandon the use of reduction in paypoints as a sanction. He submitted that regulation 5 of the Police Service (Discipline) Regulations 1990 was sufficiently broad to allow the Appeal Tribunal to impose an appropriate fine.
Regulation 5 provides:
Where the Commissioner or a Deputy Commissioner has formed the opinion that an officer should be disciplined, the Commissioner or Deputy Commissioner may order that the officer be disciplined in a manner that appears to the Commissioner or Deputy Commissioner to be warranted.
I accept the breadth of that provision but it must be read in light of s 7.4 of the legislation[22] which provides:
Without limiting the range of disciplines that may be imposed… such disciplines may consist of –
…
(f) deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.
[22] Police Service Administration Act 1990 s 7.4(3).
Whilst I accept it would be open to the Tribunal to impose a sanction of a kind not referred to in s 7.4,[23] where a fine is referred to and the amount is specifically limited to $200.00, I don’t accept it is open for us to make an order imposing a fine in excess of that.
[23] As happened in DA v Deputy Commissioner Stewart [2011] QCATA 359.
Taking into account the conduct involved and the evidence concerning the financial consequences to Constable Garth and consistent with the sanction imposed in the “nude run” cases, an appropriate sanction would be one which would see Constable Garth being in a similar career position in July 2013 as that which he was in July 2011. In this regard my view differs from the Presiding Member who considers he should be in that position in July 2012. As best as I can deduce, a reduction of one paypoint for 12 months effective from 6 July 2011 would achieve the outcome I consider appropriate. This sanction would still involve financial detriment but not to such an extent to make the sanction disproportionately punitive. It would also serve as a deterrent and maintain public confidence. I would impose such a sanction, with the need for further submissions.
I agree with the learned Presiding Member that, so far as possible, there should be clarity around the sanction. The officer should, at the end of the proceedings, know with reasonable certainty what are the financial aspects of the order. Because the learned Presiding Member has sought further submissions those submissions should, in my respectful view, be directed to that purpose.
Final Decision of both Members – 7 August 2013
The parties have agreed to a consent order:
1.Mr Garth’s advancement from Constable pay level 1.5 to Senior Constable pay level 2.1 is to be deferred from 14 August 2011 until 14 August 2012;
2.Any further pay point progression is to be administered in accordance with Queensland Police Service policy and procedures.
Their joint submissions now say this:
5.Mr Garth would be returned to pay level Constable 1.5 as at 6 July 2011 and therefore entitled to all back pay associated. The parties are confident these issues can be resolved amicably by the Queensland Police Service Human Resource and Payroll sections.
6.Although both parties are confident of an amicable resolution about this issue if the Tribunal is concerned then the Tribunal should find confidence in the fact that it would be open for either of the parties to bring the matter back to the Tribunal if necessary for this issue to be resolved.
We are told that each side agrees, that the machinery is in place, to give effect to those orders. Mr Garth’s promotion, and back pay, will be dealt with accordingly.
Orders as in para 115 above.
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