Kennedy v Deputy Commissioner Ian Stewart
[2012] QCAT 66
•21 February 2012
| CITATION: | Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66 |
| PARTIES: | Mr Bryan George Kennedy (Applicant) |
| v | |
| Deputy Commissioner Ian Stewart (Respondent) |
| APPLICATION NUMBER: | OCR036-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas AM QC, Member Michelle Howard, Member |
| DELIVERED ON: | 21 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The sanctions of dismissal imposed by the respondent upon the applicant on 16 February 2011 are set aside; 2. In lieu thereof, on charge number 2, the applicant is suspended from the Queensland Police Service for six months effective from 16 February 2011. |
| CATCHWORDS: | Police discipline – misappropriation of fridge –level of dishonesty – comparative cases –relevance of service history and complaints history – when “lies” may be relevant on issue of sanction – relevance of conduct of defence and absence of remorse – suspension from police force for stated period Police Service Administration Act 1990, s 7.4(3) Crime and Misconduct Act 2001, s 219J Aldridge v Ross [2001] 2 Qd R 235 DA v Deputy Commissioner Ian Stewart [2011] QCATA 359 Pegg v O’Gorman Misconduct Tribunal 4 of 1991 |
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). Written submissions were provided by Mr S W Zillman of Counsel instructed by Gilshenan and Luton Legal Practice for Mr Kennedy and Mr S A McLeod of Counsel instructed by QPS Solicitors Office for Deputy Commissioner Ian Stewart.
REASONS FOR DECISION
The applicant, (formerly Sergeant Kennedy), was successful in this Tribunal on the review of two of the three charges of which he had been found guilty. The third charge was confirmed by the tribunal. It is upon that charge that we must now determine the appropriate sanction.
The current status of Mr Kennedy (“the applicant”) is that of a dismissed former member of the Police Force. The orders of dismissal were made on 18 February 2011, upon each of the three disciplinary charges which were then found to be substantiated.
The applicant obtained an order staying the dismissal on 31 March 2011, but that stay was set aside on 31 August 2011. Broadly speaking he has been off the payroll for about seven of the past twelve months.
The charge which has been substantiated against him is:
That between the 15th day of April 2008 and the 24th day of January 2009 at Mount Isa or elsewhere your conduct was improper in that you:
a)Dishonestly gained the benefit of “Trailblaza” portable camping fridge the property of the Mount Isa Police Citizens Youth Club.
Further and better particulars
Investigations have identified that a “Trailblaza” portable camping fridge was donated by Margaret Emily Albeiz for the assistance of the Mount Isa Police Citizen Youth Club. The investigations have identified you:
§Utilised the said Trailblaza portable camping fridge at your (former) residence in Mount Isa;
§Transported this property from Mount Isa to your (subsequent) residence in Rockhampton; and
§Dishonestly applied to your own use the said Trailblaza portable camping fridge.
Our reasons for confirmation of his guilt of this charge were published on 22 December 2012. They detail his misconduct and the circumstances surrounding it.
The respondent’s decision to dismiss Sergeant Kennedy from the Police Force was based upon his findings of three different acts of misconduct on separate occasions, only one of which now remains to be considered. The views on which the decision-maker imposed the sanctions were therefore formed on evidence and findings markedly different to those which we now have to consider in relation to a single charge. For this reason it is not possible to give the weight that Aldridge v Ross [2001] 2 Qd R 235 usually requires to be attached to a decision-maker’s choice about the level of sanction.
It is necessary for us to reach our own independent view of the appropriate sanction for this single charge.
It is unnecessary to deal with the applicant’s further submissions that the application of Aldridge v Ross, insofar as it applies to the level of sanction imposed, is inappropriate because the decision-maker took into account “lies” as aggravating the applicant’s misconduct, in circumstances where he had not been separately charged with telling such lies and (allegedly) that he was not given procedural fairness enabling him to deal with that allegation.
The principal submission of the respondent is that dismissal is the only appropriate order in this case. That of the applicant, is that the appropriate sanction is a fine or a suspended demotion.
The powers available to the Deputy Commissioner, and now of this Tribunal, are mentioned in the Police Service Administration Act 1990, section 7.4(3), the Police Service (Discipline) Regulations 1990, regulations 5 and 10, the Crime and Misconduct Act 2001, section 219J and the Queensland Civil and Administrative Tribunal Act 2009, section 19(c).
The examples of sanctions set out in section 7.4(3) of the Police Service Administration Act 1990 are –
Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of—
(a)dismissal;
(b)demotion in rank;
(c)reprimand;
(d)reduction in an officer’s level of salary;
(e)forfeiture or deferment of a salary increment or increase;
(f)deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.
These examples however are not exclusive, and do not limit the range of disciplines that may be imposed or require restriction of the wide discretion conferred in sections 5 and 10 of the Police Service (Discipline) Regulations 1990. There is a specific power of dismissal, and in our view it is open in an appropriate case to impose a lesser sanction such as suspension for a limited period. We understand Mr Zillman, Counsel for the applicant, to contend that while such an order is within the jurisdiction of this Tribunal to make, it would in the present case carry unduly harsh financial consequences, and ought for that reason not to be made.
The range of possible responses that need particular consideration in this case include dismissal, suspension, demotion in rank, and reduction in pay points for a specified period. The availability of the power to suspend a discipline (Crime and Misconduct Act 2001, section 219L) also needs to be born in mind.
Relevant circumstances
Dishonesty
The first point to note is that the applicant’s conduct involved a form of dishonesty, and it continued over a period of more than six months. There are varying degrees of seriousness of dishonesty, even in the present context[1]:
It is not, in my opinion, every proved act of dishonesty on the part of a practitioner which justifies a substantial penalty; dishonesty, like other forms of misbehaviour, has grades of seriousness.. momentary or at least temporary lapse from proper standards of honest behaviour is one thing; persistence in such conduct over a substantial period is another.[2]
[1]Legal Services Commissioner v Voll [2008] QCA 293, [64] (M Wilson JA, with whom Keane JA and Dutney J agreed).
[2]Attorney General v Bax [1999] 2 Qd R 9, [20] (Pincus JA, with whom McPherson JA and Shepherdson J agreed).
The conduct in the present matter, while not at the most serious level, was over a substantial period.
It was submitted on behalf of the applicant that his use of the fridge was limited, and that the only specific findings of use was in respect of “a course of days prior to the transfer of the applicant from Mt Isa to Rockhampton (i.e. April /May) and later in that year at Christmas time”. The benefit to the applicant of the use of the fridge was suggested to be “minimal”.
The submission of "limited actual benefit", even if otherwise correct, is not a particularly persuasive factor. The actual frequency and degree of use of the fridge was a matter largely within the keeping of Kennedy and Gee, and not an issue which in the normal course one would expect a prosecuting authority to be able to prove by day-to-day evidence of level of use. What matters is that possession by the applicant and both opportunity and willingness to exercise it have been proved, along with specific proof of actual use both at Mt Isa and Rockhampton. We take the view that the fridge was treated as a piece of domestic property by both Kennedy and Gee, that the rightful owner was deprived of its benefit for more than six months, and that it was not returned until after Kennedy and Gee had become aware that their possession of it was under investigation.
We therefore do not think that these particular submissions carry much mitigating force.
It was also submitted that the applicant was a lesser player in the misconduct than Sergeant Gee, and that Gee was “the prime mover”. However, we have indicated in paragraph 61 of our reasons of 22 December 2011 that “Kennedy was prepared to go along with it and take the advantage that it afforded.” The submission is correct, but it is inescapable that the applicant willingly became a secondary actor in a highly improper and unethical series of acts.
It was further submitted that the misconduct was not committed by the applicant in the course of discharge of his duties. There is of course a distinction between misconduct “under the badge of office” and "personal" or off-duty misconduct, but conduct of either kind is capable of showing unfitness for office.[3] That submission, however is obviously correct, and is noted.
[3]McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309, [31]; and DA v Deputy Commissioner Ian Stewart [2011] QCATA 359, [85-94].
Service history
Reference was made to the service history of the applicant.[4] It shows that the applicant started as a police cadet in 1984 and rose through the ranks to become a Senior Sergeant in December 2003. Overall, the evidence concerning his career, particularly the performance planning and assessment reports, show him to be a very competent and experienced officer. Counsel for the applicant, while placing reliance on these positive comments, submitted that the evidence in the applicant's “complaints history” was irrelevant and ought to be ignored. That is correct in relation to the various complaints that were not substantiated or did not result in any further action, although we leave to another day the question of whether in a particular case an extraordinary frequency of complaints might be capable of bearing some relevance. However we think that the complaints history of a Police Officer is clearly capable of relevance in relation to matters where, after investigation, the authorities have considered some remedial or punitive action to be necessary. A determination that an officer needs guidance is not itself a disciplinary sanction, but it is relevant history, and may properly be received along with other antecedents.
[4] Record volume 1 pages 94-112, and volume 2 pages 847-855.
In determining an appropriate sanction in a disciplinary matter, the Tribunal needs to obtain as clear a picture as possible of the Police Officer’s antecedents and character. The service history, the performance planning and assessment reports, and commissioned officer reports, and Rule 69 reports are in most cases a helpful source for such information. It would distort the process if Police Officers could refer only to the favourable side of their history. In the present case, leaving aside the present matter, over a 26 year history there are only four matters where he came under adverse notice, none of them of any substantial seriousness, but demonstrating that the history has not been impeccable. These include a failure to maintain proper accounting records concerning petty cash, which resulted in a reprimand in 1996; two other matters in 1995-1996 (failure to dispose properly of an exhibit, namely a firearm), and failure to take action regarding an altercation between an off-duty officer and a member of the public at a private party, each of which resulted in official correction by way of guidance. There is also one matter in 2008 of inadequate investigation by him of the alleged misconduct of fellow police officers. With respect to this, it was recommended that he receive managerial guidance.
Having looked at both the positive and negative sides of the service history and assessment reports we are of the view that overall his service record, although not impeccable, is a favourable one, and that he is an experienced senior officer capable of rendering further valuable service.
Comparative cases
Submissions were made by counsel for the applicant concerning other cases, said to be in some respects comparable with the present. All of them were concerned with conduct revealing some degree of dishonesty. The cases are here footnoted.[5] In this list of cases, it was only in the case of Wadham that an order of dismissal was made. Orders suspending a dismissal were made in Van Stretton, Morier and Thompson. Bowen was demoted; and fines were imposed in Pegg and Quilter.
[5]Pegg v O’Gorman Misconduct Tribunal 4 of 1991; Crawford v Bowen Misconduct Tribunal OJ 4 of 1994; Re Bowen (1996) 2 Qd R 8; CJC v Quilter Misconduct Tribunal MT 3 of 1998; CMC v Stretton Misconduct Tribunal OJ 2 of 2002; Morier v Conder Misconduct Tribunal TA 1 of 2003; Vann v McGibbon Misconduct Tribunal TA 4 of 2001; CMC v Conder and Thomsen Misconduct Tribunal TA 6 of 2006; CMC v McLennan and Ors (2008) QSC 12; Wadham v Deputy Commissioner Ian Stewart [2010] QCAT 578
Pegg was said to be comparable to the present matter as he improperly used some items of police property over a period of eight and a half months. The items were a battery charger, metal car ramps, a television set and a radio scanner. Pegg claimed that he used those items because it was a common and accepted practice by members of the Police Force to use “departmental property” at that time. However closer examination of the evidence showed that such practices were limited to cases where they had been authorised to do so by their superior officer. Whatever relevance and weight Pegg might otherwise carry is somewhat undermined by the fact that soon after the commencement of the hearing the decision-maker indicated that “any determination of this matter would not involve dismissal”. It seems that the matter was not proceeded with in a manner that would leave open the full range of sanctions. In our view the sanction imposed on Pegg (a fine of $2,000) is not an appropriate indicator of sanction in the present matter.
Levels of sanction were reviewed in a recent Tribunal case of McKenzie v Acting Assistant Commissioner Tony Wright.[6] McKenzie was dealt with for off-duty misconduct in committing a serious assault upon a female colleague with whom he had formerly had a relationship. One of the cases reviewed in that case, (Hetherington v Assistant Commissioner [2011] QCAT 82) is an instance of off-duty misconduct by a Police Sergeant who used his police badge to gain entry while invading a hotel out of hours, followed by scuffles with police. In each of those cases the sanction was reduction in rank from Sergeant pay point 3.5 to Senior Constable pay point 2.9 for a period of 12 months.
[6] [2011] QCATA 309, [33-50].
Another decision of potential relevance is DA v Deputy Commissioner Ian Stewart.[7] DA was a Sergeant who was found guilty on two counts of misconduct – one that he breached protection orders under the Domestic Violence and Family Protection Act 1989, and the other that he was untruthful to a superior officer when he told him that he had not accessed the email account of his domestic partner. The relevant lie was told in an effort to avoid embarrassment, during a preliminary interview, and prior to the directed formal disciplinary interview at which he told the truth. It was suggested that this might be considered a “marginal case” of misconduct.[8] However, coupled with his breach of protection orders, a more serious view was open. He had initially been dismissed by the Deputy Commissioner on six charges; then on review one of those charges was set aside but he was dismissed on the remaining five charges. On appeal the only charges sustained were the two charges mentioned above. In the result the Appeal Tribunal considered the sanction afresh and determined that there should be a period of suspension of six months, effective from the date of the original order, and that the six month suspension had already been served.
[7] [2011] QCATA 359.
[8] [2011] QCATA 359, [102].
A feature of the present case is the applicant’s lack of remorse and his preparedness to run a spurious defence. He was prepared to lend his support to the unmeritorious claims made by Gee that Ms Albeitz had authorised the use of the fridge; and he raised the alternative further defence that Gee had managerial authority to determine the use of the fridge and that his use of it was authorised by her. Whether these considerations may relevantly be taken into account will now be considered.
Relevance of untruths
In his helpful submissions, Mr Zillman pointed out that it is inappropriate for a Court or Tribunal to treat “lies” that it finds to have been told in the course of a person’s defence, as aggravating his or her conduct, at least unless and until the procedures referred to in Smith v NSW Bar Association[9] and Legal Services Commissioner v Voll,[10] are followed. Procedural fairness is necessary before account can be taken of such lies as aggravating the sanction that should be imposed.
[9] (1992) 176 CLR 256.
[10] (2008) QCA 293, pages 12-13.
The present case is unusual in that the decision-maker, before making his final findings on substantiation of the charges, provided a copy of his “draft findings” to the applicant and his advisors under cover of a letter of 4 February 2011, offering them an opportunity to respond before formal delivery of his findings. The draft reasons contained numerous proposed findings that the applicant had lied during his responses to questions addressed to him during interviews. There was no response, and the reasons were formally delivered and the findings and sanctions were formally imposed on 16 February 2011.
Relevant authorities on this question include Smith v NSW Bar Association[11] and Legal Services Commissioner v Voll.[12] The distinction is made between rejections of evidence when it is possible that this is based upon erroneous belief or honest mistake, and cases where the finding is one of deliberate lies. Findings of the former kind are not aggravating factors when the Tribunal considers matters of sanction or penalty; but they may be in cases where deliberate lies have been told. Plainly this is right, because such conduct reflects upon the character of the person concerned, and the ultimate objective of the Tribunal is the protection of the public. Findings of this kind may be used for this purpose only if there has been procedural fairness and the person concerned has been given an adequate opportunity of addressing the issue of “deliberate untruths”.
[11] (1992) 176 CLR 256.
[12] (2008) QCA 293, [40], [45].
In Mr Zillman’s submission, the invitation in the letter of 4 February 2011 was really “window dressing” given the constant references to lies in the draft findings. It may well be that it was very unlikely that further argument or evidence would persuade the decision-maker to reverse his findings concerning lies, but the issue here is whether a fair opportunity was offered to make submissions that he should do so. Plainly the opportunity was there.
Counsel for the respondent submitted that procedural fairness had been appropriately offered; and alternatively, if there was any denial of it, it has been cured by the review process before the Tribunal, which has afforded the opportunity to the applicant to make submissions. We accept those submissions.
The real question is whether the applicant upon the present review has been given notice of the question whether any findings should be made by this tribunal that deliberate lies were told, as distinct from erroneous statements.
.
The questions whether the applicant lied to his interviewers, and whether Deputy-Commissioner Stewart erred in finding that specified statements by the applicant were deliberate lies, were very much in issue in the review proceedings before us. The lies, and the Deputy Commissioner's findings that they were deliberate, were the subject of specific submissions. In short, the proceedings before us, in the words used in Smith v New South Wales Bar Association,[13] the appellant was "given an opportunity to be heard as to whether the finding [of deliberate lies] should be made”. In the result, our findings of deliberate falsehood were considerably less extensive than those originally made by Deputy-Commissioner Stewart. But the findings of this kind that have been made are the product of a procedurally fair process in which the question whether the applicant deliberately lied in specified respects was raised and addressed.
[13] (1992) 176 CLR 256, para 40.
In our determination of this matter we explicitly found that the applicant’s allegations concerning Ms Albeiz were a “manufactured excuse”. The following passage is relevant in this respect:
“Having considered all the evidence we do not consider the explanation offered by the applicant and Sergeant Gee that there was a special arrangement made by Ms Albeiz where under Kennedy and Gee were authorised to use and deal with the fridge with a view to ultimate assistance in its promotion at future events, is acceptable. This does not seem to be a situation where the different versions can be explained by some misunderstanding on the part of the persons concerned. The versions are diametrically opposed. The explanation of the applicant and Ms Gee seems to be a manufactured excuse for unjustified possession of the PCYC property, and we reject it.”
When the findings of substantiation, including findings of some deliberate untruths, were published by us, the proceedings were then adjourned and directions made. The applicant could make whatever submissions on sanction that he considered necessary or desirable.
This afforded ample opportunity to make submissions regarding the tribunal’s finding that the applicant had told deliberate lies. Mr Kennedy could for example have offered submissions which endeavoured to mitigate or explain the untruths, if any were available, or, short of challenging the Tribunal’s own findings, invite the tribunal to reconsider that aspect of the case on any rational basis. No such submissions were made. The findings therefore form part of the basis upon which the relevant sanction ought to be determined, and are a factor that can and should be brought into account as an aggravating factor in the reckoning.
Remorse
The relevance of this factor, where it exists, may be considerable. It has recently been observed:
“In disciplinary proceedings the main relevance of an early indication of acceptance of the charge is that it indicates honesty and remorse, and a willingness to face up to obligations… the main relevance of such conduct in this disciplinary jurisdiction is its indication of remorse and responsibility. It is worth mentioning that these can be very significant and influential factors.”[14]
[14] McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309, [24].
The conduct of the case by and on behalf of the relevant person may also provide some indication in this area. For example a defence may be conducted in a responsible manner even if it is ultimately rejected; but it may also be conducted in an obstructionist manner and involve pursuit of opportunistic and unmeritorious points which unduly complicate the exercise. A preparedness to do this could be a clear indicator of absence of remorse and responsibility.
In the present matter, the applicant was prepared to raise every conceivable avenue, including the alternative defence that he had “lawful authority” from Sergeant Gee to possess and use the fridge. Our findings on some of these are contained in paragraphs [52]-[57] and [60] of our determination. The unnecessary raising and pursuit of side issues was a factor that contributed to a diffuse investigation (with a record of 2,037 pages) and lengthy reasons for decision of the Deputy Commissioner (576 pages), though, we hasten to say that the applicant cannot be held accountable for this. We simply note that he did not assist the investigation with candour and was prepared to raise unmeritorious defences, and that ultimately conduct of this kind tends to result in community cost.
We do not suggest that these latter considerations are particularly significant, but they certainly do not advance his cause.
Appropriate sanction
At the date of his dismissal the applicant was receiving $2,750.88 net per fortnight (approximately $71,680 per annum). Mr Zillman’s submission points out that, taking into account that he received wages during the period when a stay was in force he has been without income for some six months. In our calculation this is now closer to seven months out of the (approximately) 12 months that have elapsed since the order of dismissal. He has therefore already, in effect, served a suspension of 12 months during which he has been paid for five months without service.
We have considered all available options, and in particular, dismissal, suspension and demotion with loss of pay points. Each of these involves a high level of censure and financial disadvantage that are imposed by demotion and loss of pay points for prescribed periods; the option of suspension for a designated period, and the option of dismissal. Anything less than this range, such as a fine, or deferment of entitlements, would in our view be inadequate in the circumstances.
A sanction is necessary that will record a serious mark of disapproval, which is appropriate in a case that involves a level of dishonesty over an extended period and a lack of remorse. Having regard to all factors, including his overall meritorious service and capacity, we think that an order of suspension for a stated period is the most appropriate course.
If, for example, a suspension of six months were to be imposed, there would be a substantial financial disadvantage, with a prima facie loss of six months salary (i.e. more than $35,000). A suspension for 12 months would double this. Of course the level of loss is abated by whatever the suspended officer may obtain by means of other employment during the period of dismissal or suspension. The difficulty of obtaining information which will show the likely ultimate level of financial disadvantage occasioned by orders of demotion, loss of pay point or suspension, has already been noted in McKenzie’s case.[15] It will be a rare case in which the parties choose or are even able to obtain and supply evidence of likely loss with any precision. In the present case however we are prepared to proceed on the footing that any period over which the suspension operates will result in serious financial loss to the applicant.
[15] [2011] QCATA 309, [45]-[50].
The sanction will be that the applicant be suspended from the Queensland Police Service for six months effective from 16 February 2011. This is not a case where it would be appropriate to suspend operation of the order under the Crime and Misconduct Act 2001, section 219L.
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