Jose v Assistant Commissioner Michael James Condon
[2013] QCAT 515
•1 October 2013
| CITATION: | Jose v Assistant Commissioner Michael James Condon [2013] QCAT 515 |
| PARTIES: | Mr Gabriel Raymond James Jose (Applicant) |
| v | |
| Assistant Commissioner Michael James Condon (Respondent) |
| APPLICATION NUMBER: | OCR132-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Margaret McLennan, Member |
| DELIVERED ON: | 1 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Gabriel Raymond James Jose has leave to withdraw his application for a review of the substantiation of the matter of misconduct. 2. The sanction imposed by Assistant Commissioner Michael James Condon dated 14 May 2013 is set aside. The following sanction is imposed: a) Senior Constable Gabriel Raymond James Jose be reduced from pay point 2.9 to 2.1 for a period of twelve (12) months commencing 14 May 2013. b) After that period of twelve (12) months Senior Constable Gabriel Raymond James Jose progress back to pay point 2.9 following confirmation being received by the Assistant Commissioner South-Eastern Region of: (i.) Successful completion of his Performance Planning and Assessment for the period 14 May 2013 to 13 May 2014; (ii.) Presentation of himself for an assessment by Queensland Police Service (QPS) Safety and Wellbeing Branch by 13 May 2014; (iii.) Senior Constable Gabriel Raymond James Jose having undertaken any counselling or other program recommended by the QPS Safety and Wellbeing Branch by 13 May 2014. c) If 3(b) (i), (ii) and (iii) not be completed by 13 May 2014, then progression to 2.9 shall occur as soon thereafter as confirmation of the outstanding condition is received by the Assistant Commissioner. 3. Publication of the names and any personal particular of the two juveniles, the juveniles’ stepfather and the complainant driver is prohibited. 4. Publication of any incidental third party name or particulars logged on 21 April 2013 on DDO logs; District Office activity logs or Compass Report Summary is prohibited 5. Any person who has access to the file of material in this case is prohibited from publishing the information contained in 4. and 5. of this order. |
| CATCHWORDS: | Disciplinary proceedings – Police Police Service Administration Act 1990 - Medical Board of Australia v Martin [2013] QCAT 376 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr S Zillman, counsel, instructed by Mr Adrian Braithwaite, solicitor, Gilshenan & Luton |
| RESPONDENT: | Mr S McLeod, counsel, instructed by Ms Melissa Cable, Queensland Police Service Solicitors |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 2 July 2013 Gabriel Raymond James Jose (the applicant) lodged an application in the Queensland Civil and Administrative Tribunal (the tribunal) seeking review of a decision made on 14 May 2013 by Assistant Commissioner Michael James Condon (the respondent). The application was in relation to a disciplinary hearing which was conducted under the Police Service Administration Act 1990 (PSAA). The review sought was in respect of both the finding made by the respondent in relation to the Matter 1 charge that the applicant was guilty of misconduct and of the sanction imposed pursuant to that finding of misconduct.
On September 2013, immediately prior to the scheduled hearing of the matter, a compulsory conference was held which required the parties’ presence in the tribunal pursuant to s 67 of the QCAT Act and was conducted under the provisions of Part 6 Division 2. An outcome of the compulsory conference was that the applicant applied for the leave of the tribunal to withdraw the application for review in relation to the substantiation of the matter of misconduct and for an order from the tribunal in relation to an amended sanction.
Section 46(1) of the QCAT Act provides for the withdrawal of an application before the matter is heard and decided in the tribunal “if the tribunal gives leave”. The respondent raised no objection to the withdrawal.
The basis of the charge of misconduct was that on 21 April 2013, while off duty, driving in a personal vehicle and acting on the assertions of two eleven (11) year old children in his vehicle, the applicant concluded that another vehicle driving on the road was the reported stolen vehicle which belonged to the applicant’s personal friends. A spurious identification of a sticker on the rear of the purported stolen vehicle reinforced the applicant’s conclusion.
In contravention of the specific instructions of the District Duty Officer (the DDO) not to become involved in any way and to allow the uniform crew to handle a matter relating to the suspected stolen vehicle, without justification and with no further enquiries as to the circumstances, particularly the vehicle’s rear sticker, the applicant intervened and arrested the driver, a member of the public. The applicant used excessive force in arresting the member of the public, the sole occupant of the vehicle which was not, in fact, a stolen vehicle.
The arrest which included the use of handcuffs, was without justification or circumstance which made the arrest necessary as required under section 365(1) of the Police Powers and Responsibilities Act 2000 (Qld).
The sanction imposed as a result of the substantiation of misconduct was that the applicant, a senior constable in the QPS was reduced in rank from level 2.9 to level 1.6 under section 10(e) of the Police Service (Discipline) Regulations 1990 and particular conditions were set for reinstatement to level 2.9.
The tribunal is mindful that subsection 62(1) of the QCAT Act provides that the tribunal may give a direction in a proceeding in the interest of the speedy and fair conduct of the proceeding. In seeking leave to withdraw the application for review to the tribunal in relation to the substantiation of misconduct, it is appropriate that the tribunal have regard to the sanction that the parties have jointly proposed in the compulsory conference.
The tribunal will not depart from the proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the misconduct.[1] The purpose of disciplinary proceedings within the police jurisdiction encompasses the requirements of deterrence, the protection of the public,[2] the maintenance of proper standards[3] and the necessity for community confidence in the police service.[4] Any sanction has to reflect appropriate disapproval.[5]
“It is integral to this disciplinary jurisdiction that these public factors must be considered. The Full Court of the Federal Court has said just this in Hardcastle v Commissioner of Police in relation to the relevant Australian Federal Police (Discipline) Regulations:
‘The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body.’ ”[6]
[1]Medical Board of Australia v Martin [2013] QCAT 376 per Deputy President Judge Alexander Horneman-Wren SC, at [91].
[2] Aldrich v Ross (2001) 2 QdR 235 at 247.
[3] Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597.
[4] Aldrich v Ross (2001) 2 Qd R 235 at 247.
[5] Queensland Police Service v Compton (No 2) [2011] QCATA 246 at [25].
[6] (1984) 53 ALR 593 at 597.
The tribunal endorses the comments made by the Deputy President of this tribunal that:
“It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter.”[7]
[7]Medical Board of Australia v Martin [2013] QCAT 376 per Deputy President Judge Alexander Horneman-Wren SC, at [93].
It is appropriate that the tribunal impose a sanction. The sanction jointly proposed by the parties is as follows:
1. Gabriel Raymond James Jose has leave to withdraw his application for a review of the substantiation of the matter of misconduct;
2. That the decision of Assistant Commissioner Michael James Condon dated 14 May 2013 be set aside on the matter of sanction.
3. a) Senior Constable Gabriel Raymond James Jose be reduced from pay point 2.9 to 2.1 for a period of twelve (12) months commencing 14 May 2013.
b) After that period of twelve (12) months Senior Constable Gabriel Raymond James Jose progress back to pay point 2.9 following confirmation being received by the Assistant Commissioner South-Eastern Region of:
(i) Successful completion of his Performance Planning and Assessment for the period 14 May 2013 to 13 May 2014;
(ii) Presentation of himself for an assessment by QPS Safety and Wellbeing Branch by 13 May 2014;
(iii) Senior Constable Gabriel Raymond James Jose having undertaken any counselling or other program recommended by the QPS Safety and Wellbeing Branch by 13 May 2014.
c) If 3(b)(i), (ii) and (iii) not be completed by 13 May 2014, then progression to 2.9 shall occur as soon thereafter as confirmation of the outstanding condition is received by the Assistant Commissioner.
The tribunal is satisfied that the sanction proposed reflects an appropriate level of disapproval as a result of the disciplinary proceedings and is protective of the reputation of and standards within the QPS. The sanction is at the same time rehabilitative and appropriate in the circumstances of this matter.
The tribunal directs that the application for review of the substantiation of the matter of misconduct be withdrawn from the application for review before the tribunal.
Non-Publication
The tribunal under section 66(1)(c) of the QCAT Act may make an order prohibiting the publication of information that may enable a person who is affected by a proceeding to be identified. The tribunal may make such an order if it is necessary to avoid the publication of confidential information or information publication of which would be contrary to the public interest.[8] The tribunal may make the order on the application of a party to the proceedings or on its own initiative.[9]
[8] QCAT Act s 66(2)(d).
[9] QCAT Act s 66(3).
On 1 July 2013 the respondent made such an application for non-publication. The respondent opposes the publication of the names and personal details of the following persons named in the material before the tribunal: two juveniles who were in the applicant’s care at the time of the incident in question; the stepfather of the two juveniles and the complainant who was the driver of the vehicle. The respondent further submits that any non-publication order should encompass “any reference to the names and personal particulars of other third parties listed in the DDO logs; District Office activity logs; Compass Report Summary detailing other police jobs logged and attended to on the day in question.”[10]
[10] Respondent’s application for non-publication order dated 1 July 2013 paragraph 11.
The application is not opposed by the applicant.
The tribunal is satisfied that these are third parties who neither participated in these proceedings nor, in the case of the stepfather of the two juveniles and of the complainant driver, gave their consent for their personal information to be published. The tribunal is further satisfied that it is not in the public interest to publish the names or any other personal particular connected with the two juveniles; the stepfather of the juveniles; the complainant driver of the vehicle or any other incidental third party name or particular listed in the DDO logs; District Office activity logs or Compass Report Summary on 21 April 2013.
Publication of the names and any personal particular of the two juveniles, the juveniles’ stepfather and the complainant is prohibited.
Publication of any incidental third party name or particulars logged on 21 April 2013 on DDO logs; District Office activity logs or Compass Report Summary is prohibited.
Any person who has access to the file of material in this case is prohibited from publishing the information contained in 4. and 5. of this order.
The tribunal accepts the undertaking made by the respondent on 1 July 2013[11] that, in the event of an application for release of information being made by a member of the public, the Respondent will, at that time, provide the tribunal with a redacted copy of the s 21(2) material removing the identifying particulars of the nominated third parties to comply with any non-publication order that may follow as a result of this application.
[11] Respondent’s application for non-publication order dated 1 July 2013 paragraph 16.
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