Groufsky v Crime and Misconduct Commission - [2012] QCATA 188

CITATION:

Groufsky v Crime and Misconduct Commission and Anor [2012] QCATA 188

PARTIES:	Shaun Groufsky (Applicant/Appellant)
v
Crime and Misconduct Commission (First Respondent) Deputy Commissioner Queensland Police Service (Second Respondent)

APPLICATION NUMBER:

APL162-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon James Thomas AM QC, Member

DELIVERED ON:

2 October 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave is granted to appeal the decision of Senior Member Endicott in this matter dated 5 April 2012.1.

The appeal is dismissed.2.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether evidence should be removed from original material – whether separate hearings should be held for determination of substantiation of charges and sanction to be imposed – whether service record received on sanction should be removed from record for determination of substantiation

Crime and Misconduct Act 2001, ss 219BA, 219G, 219H
Queensland Civil and Administrative Tribunal Act2009, ss 3(b), 17, 18, 19, 20, 21, 22, 23, 24, 62, 142(1), 142(3), 166

Aldrich v Ross [2001] 2 Qd R 235
QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257
Watson v McCallum [2012] QCAT 165

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (‘QCAT Act’).

REASONS FOR DECISION

This is an appeal against an interlocutory decision in a pending review by QCAT of a disciplinary determination concerning the conduct of a police officer.

The parties in the pending review, and in the present appeal, are the Crime and Misconduct Commission (“the CMC”), Deputy Commissioner Ross Barnett (“the decision-maker”) and Sergeant Groufsky (“the police officer”).

The original disciplinary proceedings consisted of two charges of misconduct (application of inappropriate force to a prisoner, and failing to treat the prisoner with dignity and respect when unclothed). The decision-maker dismissed the first charge, found the second charge substantiated, and imposed a sanction of reduction of one paypoint.

The CMC then sought a review by QCAT of those decisions under section 219G of the Crime and Misconduct Act 2001, essentially on the basis that the decision-maker should have found the first charge substantiated, and that the sanction imposed was too light.

In the course of preparation for hearing of the review, the police officer brought an application for:

(a) a direction that the police officer’s service record be removed from the material received for the purposes of review of the decision that the first charge had not been substantiated; and

(b) a direction for separate reviews of the decision concerning substantiation and the decision concerning sanction.

That application was dismissed by Senior Member Endicott on 5 April 2012.

The present appeal is the police officer’s appeal against that decision.

Jurisdiction

QCAT’s jurisdiction to review the decision-maker's decision arose under sections 219BA(1), 219G and 219H of the Crime and Misconduct Act 2001, and sections 17-24 of the QCAT Act. Such proceedings are to be conducted…

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: [2012] QCATA 188
Decision Date: 2 October 2012

CaseChat Overview and Summary

The case of Groufsky v Crime and Misconduct Commission involved a police officer, Mr Groufsky, who was dismissed from his position following an investigation by the Crime and Misconduct Commission (CMC) of Queensland. The CMC found that Mr Groufsky had engaged in misconduct warranting dismissal. The dispute primarily centred on the procedures followed by the CMC in determining the substantiation of the charges and the imposition of the sanction, including whether evidence should be separated from the original material, whether separate hearings should be held for the determination of the substantiation of the charges and the sanction to be imposed, and whether the service record received on sanction should be removed from the record for the determination of substantiation.

The court was required to determine whether the CMC adhered to procedural fairness in its handling of the case. Specifically, the issues involved the CMC's decision-making process, including whether it was appropriate to consider the service record received on sanction during the determination of substantiation, and whether separate hearings should have been held for determining the substantiation of the charges and the imposition of the sanction. The court also needed to consider whether the CMC's approach was consistent with the principles of natural justice and procedural fairness.

The court concluded that the CMC had not erred in its handling of the case. It found that the CMC's approach was consistent with procedural fairness and did not prejudice Mr Groufsky's right to a fair hearing. The court held that there was no requirement for separate hearings to be held for the determination of substantiation and the imposition of the sanction, and that it was appropriate for the CMC to consider the service record received on sanction during the determination of substantiation. The court also found that the CMC's decision to remove certain evidence from the original material did not result in a breach of procedural fairness.

The appeal was dismissed, and leave to appeal was granted. The decision affirmed the CMC's authority to determine the appropriate sanction following a finding of misconduct, and highlighted the importance of procedural fairness in disciplinary proceedings. The court's decision provided clarity on the CMC's decision-making process and the standards to which it must adhere in disciplinary matters.

Orders

Orders of the court

Leave is granted to appeal the decision of Senior Member Endicott in this matter dated 5 April 2012.1.

The appeal is dismissed.2.

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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