Harvie v Commissioner Ian Stewart - [2014] QCAT 388

CITATION:

Harvie v Commissioner Ian Stewart [2014] QCAT 388

PARTIES:	Paul William Harvie (Applicant)
v
Commissioner Ian Stewart (Respondent)

APPLICATION NUMBER:

OCR046-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

22 July and 1 August 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver
Member Gordon

DELIVERED ON:

6 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent’s decision in respect of Matter 1 is confirmed.

2. The respondent’s decision in respect of Matter 6 is set aside and instead there be a decision that the matter is not substantiated.

3. The respondent’s decision in respect of Matter 7 is set aside and instead there be a decision that the matter is not substantiated.

4. The sanction of dismissal imposed by the respondent on 21 February 2014 is set aside.

5. In lieu thereof, the applicant is suspended from the Queensland Police Service from 21 February 2014 to 21 May 2014 inclusive.

CATCHWORDS:

POLICE DISCIPLINE – CONFLICT OF INTEREST – POSITION OF INFLUENCE – where the applicant took a complaint about domestic violence from an aggrieved person – where the applicant investigated the complaint and applied for a temporary domestic violence protection order against the aggrieved’s estranged husband – where within days of taking the complaint the applicant entered into a personal relationship with the aggrieved but continued as applicant in the domestic violence proceedings – whether the conduct of the applicant in entering into the relationship while the proceedings continued was improper and therefore misconduct – where subsequently the applicant allegedly harassed and intimidated the estranged husband by intercepting him for the purposes of a random breath test – whether the applicant was untruthful in a directed police interview – where the charges against the applicant were substantiated – where applicant was dismissed from the Queensland Police Service – review by the Tribunal

POLICE DISCIPLINE - MISCONDUCT – SANCTION – MITIGATION – where applicant formed a relationship with an aggrieved person – appropriate sanction – where necessary to take mitigating factors into account – factors include: circumstances of the misconduct; financial loss; service record; delay and knowledge of superiors.

Crime and Corruption Act 2001 (Qld) s 219BA, schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20
Police Service (Discipline) Regulations 1990 Reg 3
Police Service Administration Act 1990 (Qld) s 1.4

Aldrich v Ross [2001] 2 Qd R 235
Flegg v Crime and Misconduct and Anor [2013] QCA 376
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Police Service Board v Morris (1985) 156 CLR 397
Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors [1992] HCA 66

Victoria v Macedonian Teachers’ Association of Victoria Inc. [1999] FCA 1287
R v Saffron (1988) 17 NSWLR 395
Smith v NSW Bar Association in the High Court (1992) 176 CLR 256
Chapman v Assistant Commissioner Paul Wilson [2011] QCAT 529
Medical Board of Queensland v B [2009] QHPT 9;

Kennedy v Deptuty Commissioner Ian Stewart [2012] QCAT 66

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.

Keep reading for free

Create a free CaseChat account to read Harvie v Commissioner Ian Stewart and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCAT 388
Decision Date

CaseChat Overview and Summary

The case involves Paul William Harvie (the applicant) challenging the decisions made by the Commissioner Ian Stewart (the respondent) regarding his dismissal from the Queensland Police Service. The applicant was dismissed for misconduct, including entering into an inappropriate relationship with a complainant while investigating her case and allegedly harassing and intimidating the estranged husband of the complainant. The Tribunal was tasked with reviewing the Commissioner's decision on whether the charges against the applicant were substantiated and to determine the appropriate sanction.

The Tribunal found that the charge regarding the relationship with the complainant was substantiated, as the applicant had engaged in an intimate relationship with her while the domestic violence proceedings were ongoing. This conduct was deemed improper and therefore misconduct, as it did not meet the standard of conduct the community reasonably expects of a police officer. However, the Tribunal found that the charges related to the interception of the estranged husband's vehicle and the applicant's alleged untruthfulness in a directed police interview were not substantiated.

Considering the mitigating factors, the Tribunal decided that a three-month suspension from the Queensland Police Service was the appropriate sanction. This decision took into account the significant delay in finalising the disciplinary proceedings, the financial loss suffered by the applicant, and the consensual and long-term nature of the relationship between the applicant and the complainant. The Tribunal also noted that the applicant had a good police service record and had cooperated fully with the investigation into his conduct. The Tribunal concluded that a three-month suspension was a proportionate sanction that reflected the purposes of the disciplinary process, met community expectations, and served as a deterrent to other police officers who might be tempted to engage in similar conduct.

Orders