Groufsky v Assistant Commissioner Brian Codd - [2021] QCAT 366

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Groufsky v Assistant Commissioner Brian Codd [2021] QCAT 366

PARTIES: SHAUN GROUFSKY

(applicant)

v

ASSISTANT COMMISSIONER BRIAN CODD

(respondent)

APPLICATION NO/S:

OCR151-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 October 2021

HEARING DATE:

17 September 2021

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The decision of Assistant Commissioner Brian Codd dated 1 June 2018 is set aside and the following decision is substituted:

Sergeant Groufsky is reduced in pay point from Sergeant pay point 3.4 to 3.3 for 12 months effective from 1 June 2018.

At the conclusion of the 12-month period Sergeant Groufsky shall return to pay point 3.4.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where allegations of misconduct and disciplinary sanction imposed – where subject officer applied to review the charges of misconduct and sanction – where Tribunal on review found allegation of misconduct to be substantiated – where subject officer inappropriately applied excessive force – whether sanction imposed is correct and preferable

Crime and Corruption Act 2001 (Qld), s 219BA, s 219C, s 219G(2), s 219B, s 219H, s 444, Schedule 2

Police Service Administration Act 1990 (Qld), s 1.4. Police Service (Discipline) Regulations 1990 (Qld), s 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 66

Aldrich v Ross [2001] 2 Qd R 235

Briginshaw v Briginshaw (1938) 60 CLR 336
Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) [2014] QCAT 488
Crime and Corruption Commission v Acting Assistant Commissioner Glenn Horton and Anor [202] QCAT 422
Groufsky v Assistant Commissioner Codd [2019] QCAT (11 October 2019)

Murray v Deputy Commissioner Stewart [2011] QCAT 583

APPEARANCES & REPRESENTATION:

Applicant:

B I McMillan of Counsel instructed by Gilshenan & Luton Legal Practice

Respondent:

S McLeod QC of Counsel instructed by QPS Legal Unit

REASONS FOR DECISION

Sergeant Groufsky seeks a review of a disciplinary sanction imposed by Assistant Commissioner Codd for one ground of misconduct found to be proven and later upheld on review by the Tribunal.
On 11 October 2018, Member Holzberger found that Mr Groufsky applied excessive force against a person brought into custody at the Southport Watch House.[1] The Tribunal’s reasons contain relevant findings about Mr Groufsky’s conduct that took place on 12 April 2017 during a time when Mr Groufsky was rostered to perform shift supervisor duties.
[1]Groufsky v Assistant Commissioner Codd [2019] QCAT (published 11 October 2019) (‘Tribunal’s reasons’).
As reflected in the Tribunal’s reasons, the person brought into custody was heavily intoxicated and potentially self-harming prompting a decision to move him to the violent detention cell.[2] After being placed in the violent detention cell the person tried to exit before the door could be closed prompting a Watch House officer to push the person back into the cell so that the door could be closed safely. The person was later observed to place his shirt around his neck prompting Mr Groufsky and the Watch…

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.

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Details

Case: [2021] QCAT 366
Decision Date

CaseChat Overview and Summary

Shaun Groufsky, a police sergeant, sought a review of the disciplinary sanction imposed by Assistant Commissioner Brian Codd for a ground of misconduct found to be proven and upheld on review by the Tribunal. The Tribunal found on 11 October 2018 that Mr Groufsky applied excessive force against a person brought into custody at the Southport Watch House on 12 April 2017. The person was heavily intoxicated and potentially self-harming prompting a decision to move him to the violent detention cell. The Tribunal found that Mr Groufsky’s action of pushing the person to get him clear of the door was appropriate but the force used to achieve that outcome was not justified. The Tribunal found that the fall and the extent of the person’s injuries was foreseeable given the level of the person’s intoxication at the relevant time. The issue before the Tribunal was whether the misconduct as found to be proven warrants a sanction of demotion.

The Tribunal found that the purpose of discipline will be served in this matter by way of a reduction in pay points from Sergeant pay point 3.4 to 3.3 for a period of 12 months. The proposed sanction reflects the serious nature of the misconduct involving the use of excessive force in a busy Watch House. It also protects the reputation and standards expected of a senior officer within the service by sending a clear message to members of the Service and the community that the use of excessive force on a person in police custody is not acceptable. Further to that, officers must take care when dealing with a person who is under the care and control of the Service to ensure safety and security is maintained. The Tribunal ordered that Sergeant Groufsky is reduced in pay point from Sergeant pay point 3.4 to 3.3 for 12 months effective from 1 June 2018. At the conclusion of the 12 month period Sergeant Groufsky shall return to pay point 3.4.

Orders