Kennedy v Deputy Commissioner Stewart
[2012] QCATA 258
•7 December 2012
| CITATION: | Kennedy v Deputy Commissioner Stewart [2012] QCATA 258 |
| PARTIES: | Brian George Kennedy (Applicant/Appellant) |
| v | |
| Deputy Commissioner Ian Stewart (Respondent) |
| APPLICATION NUMBER: | APL023-12 / APL077-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Ken Barlow SC, Member |
| DELIVERED ON: | 7 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The appellant’s application for leave to appeal or appeal in APL023-12 is dismissed.1. The respondent’s application for leave to appeal or appeal in APL077-12 is dismissed.2. |
| CATCHWORDS: | Misconduct – where charge of dishonestly gaining a benefit substantiated – where dishonesty an element of the charge – whether the Tribunal made findings that the conduct of the appellant was dishonest – whether reasons demonstrate the question of dishonesty was considered by the Tribunal Sanction – whether sanction imposed inadequate for the appellant’s conduct – where imposition of sanction an exercise of discretion – whether discretion miscarried – whether a basis established for interference with the sanction imposed Queensland Civil and Administrative Tribunal Act2009, s 142 R v Easton (1994) 1 Qd R 531 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Zillman of counsel instructed by Gilshenan and Luton |
| RESPONDENT: | Mr McLeod of counsel instructed by the Queensland Police Service Legal Officer |
REASONS FOR DECISION
Mr Kennedy is a Senior Sergeant serving in the Queensland Police Service. In 2009 he was the subject of an investigation for improper conduct which resulted in disciplinary proceedings being brought against him. He was charged with three counts of improper conduct. The Deputy Commissioner found that the charges were substantiated and imposed a sanction that he be dismissed from the Queensland Police Service.
Sgt Kennedy applied to the Tribunal for review of the Deputy Commissioner’s decision and on 22 December 2011 the Tribunal set aside two of the charges as being unsubstantiated, and confirmed one charge.
The charge confirmed was 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 a “Trailblaza” portable camping fridge the property of the Mt 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 Mt Isa Police Citizens Youth Club. The investigations have identified you:-
· Utilised the said Trailblaza portable camping fridge at your (former) residence at Mt Isa;
· Transported this property from Mt Isa to your (subsequent) residence in Rockhampton; and
· Dishonestly applied to your own use the said Trailblaza portable camping fridge.
The Tribunal set aside the sanction of dismissal from the QPS and instead made a decision that Mr Kennedy be suspended from the QPS for a period of 6 months effective from 16 February 2011.[1]
[1]Refer to the separate decision of the Tribunal delivered on 21 February 2012 – Kennedy v Deputy Commissioner Stewart [2012] QCAT 66.
Sgt Kennedy and the Deputy Commissioner have both filed applications for leave to appeal or appeal from the Tribunal’s decision.[2]
[2]Sgt Kennedy’s application is APL023-12 and the Deputy Commissioner’s application is APL077-12.
In Sgt Kennedy’s appeal he contends that the Tribunal failed to make any finding about “dishonesty”, an element of the charge, and therefore there was no basis upon which the charge could be substantiated. He asked the Appeal Tribunal to set aside the decision of 22 December 2012 and make a finding that the charge is not substantiated.
The Assistant Commissioner’s appeal is against the sanction imposed on Sgt Kennedy by the Tribunal. He says the Tribunal failed to give sufficient weight to the nature of Sgt Kennedy’s conduct and therefore the sanction was manifestly inadequate. He contends that the sanction of dismissal from the QPS is appropriate.
Background
In early 2008 Sgt Kennedy was stationed at the Mt Isa Police Station. He was sharing a house (and was in a personal relationship) with another police officer, Sgt Nicole Gee. Sgt Gee was the branch manager of the Mt Isa Police Citizens Youth Club and Sgt Kennedy was a member of the committee. In April 2008 Margaret Albeiz, the chief executive officer of North Coast Refrigeration Company Pty Ltd, donated a Trailblaza portable camping fridge to the PCYC. Ms Albeiz donated the fridge on the basis that it could either be raffled to raise money for the club or be used at youth functions. The intent of the donation was that it be used for the benefit of the local PCYC.
It is not contested that after the donation was made, Sgt Kennedy and Sgt Gee took possession of the fridge and used it for their own purposes in the house they shared in Mt Isa.
In June 2008 Sgt Kennedy was transferred to Rockhampton. Removalists were engaged to take Sgt Kennedy’s and Sgt Gee’s possessions. Initially the removalists were to take the Trailblaza to Rockhampton but in the end Sgts Kennedy and Gee took the Trailblaza with them in their own vehicle.
The Tribunal found, and it is uncontested, that Sgt Kennedy used the fridge for his own purposes during the periods he had possession of it. This was from mid 2008 to January 2009, when he returned the fridge to the Mt Isa PCYC once he became aware of an investigation into his possession of it.
In the hearing before the Tribunal, Sgt Kennedy sought to justify his possession of the fridge on a number of bases. Firstly, he contended that there was a special arrangement made between himself and the donor of the fridge, Ms Albeiz, that he should “road test” the fridge to get to know how it worked and its capabilities so it could be used for future PCYC events. The fridge could be used in remote areas and to that end, he was to draft standard operating procedures for the fridge should it be so used. These contentions were rejected by the Tribunal because the evidence produced from Ms Albeiz not only denied that such an arrangement was entered into with Sgt Gee, Sgt Kennedy or the PCYC, but also because she had no need for the fridge to be tested in the way suggested by Sgt Kennedy, as she was fully familiar with its capabilities. Sgt Kennedy’s version was put to Ms Albeiz and it was “roundly rejected”.[3]
[3] Tribunal reasons paragraph 28.
Similarly, the Tribunal rejected Sgt Kennedy’s explanation of how the fridge ended up in Rockhampton and his explanation for his use of it there. This latter point arose because he claimed Sgt Gee had the authority to lend out PCYC equipment and because she gave her consent to the applicant to use it, Sgt Kennedy considered he did nothing wrong.
The Tribunal rejected that submission and found that by taking the unit from the PCYC for her own use, Sgt Gee’s conduct was a breach of trust, highly improper and unethical. Because of the relationship between Sgt Kennedy and Sgt Gee, Sgt Kennedy must have known that. It is open to be inferred from this conduct, that had Sgt Kennedy not become aware of the investigation, he would have continued to use the fridge. The Tribunal concluded that his conduct was plainly improper and made the following finding:
It was not alleged that there was any intention to steal in the sense of permanent deprivation of the rights of the true owner. However it involved the removal and use of the property in circumstances where the true owner did not authorise such use, and in which Sgt Gee and the applicant both knew that it was donated for the sole use of the PCYC. Whether the appropriation of the fridge be categorised as temporary misappropriation, unauthorised use, illegal use, trespass to goods, or plain commandeering for personal use does not in the end matter. It was plainly improper. Gee was the moving party, but the applicant Kennedy was prepared to go along with it and take the advantage that it afforded.
The Tribunal then concluded that this conduct constituted misconduct and found that Sgt Kennedy engaged in misconduct. After finding the conduct substantiated, in a separate decision the Tribunal gave reasons for imposing the sanction. The latter reasons deal with the question of “dishonesty”.
We agree with the submissions of the respondent that both the reasons for substantiation and sanction should be read as a whole and not piecemeal to give comfort to the appellant’s position. The effect of the reasons with respect to the appellant’s possession of the fridge was that the appellant’s justification for his possession of the fridge was rejected outright.
The Tribunal did not accept any of Sgt Kennedy’s evidence and submissions, in particular, about trialling the fridge for Ms Albeiz, and therefore there was no reasonable basis for the fridge to be in his possession. It follows from this finding that there was no justification for Sgt Gee and the appellant taking the fridge from Mt Isa to Rockhampton other than for their own personal use at the expense of the recipient of the donation, the PCYC. As for the contention that Sgt Gee either had the authority to consent to the applicant’s use of the fridge, this was also rejected, and we think rightly so. Even if there was substance to the submission that Sgt Gee had the authority to lend out the fridge, it defies common sense that the authority would extend to allowing a fellow officer taking the fridge all the way from Mt Isa to Rockhampton where it would be impossible to return it to the PCYC at short notice if needed.
Sgt Kennedy was not charged with a criminal offence of stealing, which would have required proof beyond a reasonable doubt that the elements of the offence were made out. The Tribunal alluded to this and said they did not have to make a finding that there was any intention to permanently deprive the true owner of the right to it. To substantiate the charge the degree of proof is of a lesser standard although given the seriousness of the charge the Tribunal has to be reasonably satisfied that the charge has been made out.
Did the appellant act dishonestly
The charge specifically has dishonesty as one of its elements. Although the reasons dealing with the three charges, and in particular the Trailblaza fridge, do not mention the word dishonesty, the Tribunal was satisfied that the charge had been made out. That is, by rejecting his grounds of justification for possession of the fridge, the Tribunal found that by his conduct the applicant had dishonestly gained the benefit of the Trailblaza and this amounted to misconduct. We do not think, in these circumstances, that it was necessary for the Tribunal to make an explicit finding that the conduct was dishonest. The converse to a finding of dishonesty must be that there was some justification or an honest belief that he had an entitlement to possess the Trailblaza, but here there simply was none.
The Tribunal specifically addressed the question of dishonesty when considering the sanction to be imposed. The Tribunal noted that Sgt Kennedy’s conduct “involved a form of dishonesty, and it continued over a period of more than six months.”[4] Sgt Kennedy submits that the Appeal Tribunal should ignore the reasons in the decision on sanction dealing with the question of dishonesty because they are unsupported by any specific finding of fact leading to that conclusion. We disagree, as we see no reason why both sets of reasons cannot be read as a whole. Although there is no specific finding in the substantiation reasons about dishonesty, the findings made lead to the conclusion of dishonesty discussed in the sanction reasons.
[4] Kennedy v Deputy Commissioner Stewart [2012 QCAT 66 at paragraph 14.
Sgt Kennedy is also critical that the Tribunal did not specifically address the submission made by him about whether his conduct was dishonest by reference to the cases referred to in his written submission.[5] Relevantly here, the passage from Laurie may have application as a guide:
The expression (dishonesty) described the state of mind of the person accused, the test of dishonesty being subjective but the standard of honesty to be applied being the standard of reasonable and honest men. It was therefore held that the jury in determining whether an accused has acted dishonestly should first consider whether what he did was dishonest by the standards of ordinary honest people and, if they found that it was, then they had to consider whether the accused himself must have realised that what he was doing was by those standards dishonest.
[5] R v Easton (1994) 1 Qd R 531 and R v Laurie (1987) 2 Qd R 762.
Although the Tribunal did not specifically refer to this case, it was put before them in the submissions, the Members were conscious of the particulars and elements of the charge, accepted the particulars were made out to their reasonable satisfaction and their findings were consistent with conduct, on the above test, as being dishonest. By consciously loading the fridge into a car and then taking it 1,334 kilometres from its rightful owner, for his own personal use as the Tribunal found, can be nothing short of dishonest and not simply a “borrowing”.
We are satisfied that the Tribunal did address the question of dishonesty and this ground of appeal should be rejected.
Other grounds of appeal
Grounds two and three of Sgt Kennedy’s appeal challenge the findings of the Tribunal that Ms Albeiz denied any conversation with Sgt Kennedy about testing the fridge so it could be promoted at future PCYC events. It is true that Ms Albeiz did not use the word “denial” or “deny” and that the full account of what is set out in paragraph 48 of the reasons was not put to her. However any sensible reading of the relevant part of the transcript of her interview with Inspector Rohweder is that she refuted any suggestion that Sgt Kennedy should use and test the fridge for her. Not only did she say “I wouldn’t have said that”, she went on to explain that she had been making the Trailblaza fridges for twenty-six years, has nineteen thousand “out there” and did not need to ask someone to test them and she couldn’t imagine she “would have said anything like that”.
To say she denied the contentions of Sgt Kennedy put to her, in a generalised way, is a neat summary of the general tenor of her evidence. We not only reject the contention that Ms Albeiz’s evidence does not support the findings of the Tribunal set out in paragraphs 45 and 46, but we consider no other finding was open on this evidence.
Ground 4: The applicant contends that the Tribunal failed to address the submission made by Sgt Kennedy about what was put to Ms Albeiz in her interview. It is said that it was never the case that the applicant asserted that the fridge was to be tested in the way put to her. Also that the Tribunal did not have regard to Sgt Kennedy’s submissions set out in paragraphs 51-55 of the written outline put to the Tribunal. Even if we assume the contention put by Sgt Kennedy is correct, a perusal of those submissions does not mean that the Appeal Tribunal should interfere with the finding made that the applicant’s justification for using the fridge should be rejected.
The Tribunal accepted that the “main thrust” of the applicant’s version was put to Ms Albeiz and it was rejected. This is evident in the passage of the interview referred to above, where she clearly rejected any notion that any special arrangement was made between herself and the applicant about the use of the fridge.
As for the card given to Ms Gee by Ms Albeiz, the Tribunal made a finding that this of itself did not support that a special arrangement existed between them, particularly insofar as it might concern the fridge. This conclusion was open on the evidence and we see no basis to interfere with it.
Grounds 5 and 8: These grounds of Sgt Kennedy’s appeal go to the authority of Sgt Gee, as branch manager of the PCYC, to lend out the fridge. It is said that the conclusion reached by the Tribunal rejecting that she had lawful authority to lend the fridge lacked reasoning.
The Tribunal said that even accepting that she may have had lawful authority, that authority did not justify the actions of both Sgt Gee and Sgt Kennedy in using the fridge for their exclusive benefit contrary to the purpose of the gift, which was to assist the PCYC. It is difficult to see what more reasoning is necessary, particularly when their exclusive use extended to taking the fridge to Rockhampton to the detriment of the PCYC. It follows that we conclude that sufficient reasons were given for the finding and these grounds of appeal are rejected.
Ground 6: This ground challenges the finding that there was a particular “purpose” for the gift of the fridge. It is submitted by the appellant that the purpose has not been identified and the evidence from Ms Albeiz simply was that the fridge was donated to the PCYC for it to use as it should see fit, with no conditions attached.
It is difficult to see how this advances the appellant’s position in the appeal. The purpose was for the benefit of the PCYC. This is obviously what the learned Members were referring to in their reasons. The purpose was not for the benefit of Gee or the appellant, that much is clear.
Ground 7: Here again the complaint is lack of reasoning which relates to the conclusion reached that Gee’s actions constituted a breach of trust and were highly improper and unethical. Furthermore that Sgt Kennedy knew that to be the case. We do not agree. A reading of the Tribunal’s reasons as a whole inevitably leads to this conclusion. The use of the fridge was contrary to the purpose of the gift, it was removed from Mt Isa to Rockhampton and only returned when an investigation into its use came to the attention of Gee and Sgt Kennedy. No other conclusion, on the facts as found, was in our view open.
Each of the grounds of appeal involves findings of fact or mixed law and fact, therefore leave to appeal is necessary.[6] The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[7] Is there a reasonable prospect that the applicant will obtain substantive relief?[8] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[9] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal would be to the public advantage?[10]
[6] QCAT Act, s 142(3).
[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[8] Cachia v Grech [2009] NSWCA 232 at 2.
[9] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[10]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Having regard to our conclusions, there is no basis on which leave to appeal ought be granted. Even if leave were granted, we would dismiss Sgt Kennedy’s appeal.
Accordingly, Sgt Kennedy’s application is dismissed.
Sanction
After the Tribunal delivered its reasons that one of the three charges had been substantiated, it invited the parties to file written submissions on sanction. The Tribunal delivered its decision on sanction on 21 February 2012. It set aside the sanction imposed by the Deputy Commissioner that Sgt Kennedy be dismissed from the police service and instead, ordered that he be suspended from the QPS for 6 months effective from 16 February 2011.
In a separate proceeding[11] the Deputy Commissioner appealed that decision on the basis that the sanction was manifestly inadequate having regard to the nature of Sgt Kennedy’s conduct.
[11] APL077-12.
In the submissions in support of the appeal, the Deputy Commissioner contends that the Tribunal failed to have due regard to the fact that Sgt Kennedy’s conduct was deliberate, he deliberately lied to defend his position and there was a complete absence of remorse. It is also contended that the sanction imposed does not properly reflect the purposes of discipline as set out in the Queensland Police Service Human Resource Management Manual, namely:
§ Maintain public confidence in the service;
§ Maintain the self esteem of members of the service;
§ Maintain confidence in the ability of the service to fulfil its statutory functions;
§ Maintain proper standards of conduct for members of the service (by specific and general deterrence principles);
§ Maintain the efficiency of the service; and
§ Protect the reputation of the service.
The Police Service Administration Act 1990 provides examples of the types of sanction that can be imposed. Section 7.4(3) provides:
(3) 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.
The Tribunal went to some lengths to consider the specific conduct the substance of the proved charge against Sgt Kennedy. The facts found included a level of dishonesty which, although not at the most serious level, was over a sustained period. The use of the fridge provided some benefit to Sgt Kennedy and although it was returned by him, we agree that little credit, by way of mitigation, should be given for this conduct.
The Tribunal explored other usual mitigating factors and found there were few. There was no remorse on the part of Sgt Kennedy for his conduct and not only was there no remorse, he sought to raise every conceivable avenue, including the alternate defence that he had lawful authority to possess the fridge, which was rejected by the Tribunal. We agree with that rejection.
There was a direct conflict in the evidence of Sgt Kennedy and Ms Albeiz, and the Tribunal concluded that Sgt Kennedy’s allegations concerning her were “a manufactured excuse” and, despite being given an ample opportunity to address a possible adverse finding with respect to his version of events, he chose not to do so. It was quite proper for the Tribunal to take that into account as an aggravating factor when considering sanction.
There was, in the end, very little that could be favourably said about Sgt Kennedy’s conduct through this whole process. The only credible mitigating fact was his service history. The conclusion reached that his overall service history was favourable and that he may contribute further valuable service was open on the material and quite properly taken into account on sanction.
The Deputy Commissioner submits that the sanction did not reflect the purposes of discipline within the police service nor did it reflect the purpose of discipline as outlined by the High Court in Police Service Board v Morris (1985) 156 CLR 397. In that case Justice Brennan said (at 412):
The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force as a means – the primary and usual means – of ensuring that individual police officers do not jeopardize public confidence by their conduct nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.
The principles were adopted in other cases including Aldrich v Ross [2001] 2 Qd R 235.
However, the imposition of sanction is an exercise of discretion, once the primary facts of the alleged conduct are found. The exercise of discretion will not be interfered with lightly. As the High Court said in House v The King:[12]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[12] (1936) 55 CLR 499 at 504-5.
The Deputy Commissioner submits that, having regard to Sgt Kennedy’s overall conduct, which includes an element of dishonesty, his untruthfulness and lack of remorse, it is clear that the Tribunal did not properly take these factors into account when coming to the decision on sanction. The difficulty with this argument is that these were the very matters which caused the Tribunal to impose the sanction that it did.
The second point made by the Deputy Commissioner is that the Tribunal focused on the financial disadvantage that flowed from the sanction by way of loss of penalty only and thereby misunderstood the purpose of disciplinary proceedings and failed to have regard to what was said in Aldrich v Ross. That is, the protection of the public, maintenance of public confidence and maintenance of integrity in the performance of police duties.
The Tribunal considered that the sanction to be imposed must record the serious mark of disapproval which is appropriate in a case that involves a level of dishonesty over an extended period and lack of remorse. It considered other options including loss of paypoints, demotion and of course dismissal. Although we may have come to a different decision as to the sanction that should be imposed, it seems to us that the Tribunal did not act on any wrong principle, was not distracted by any extraneous or irrelevant matter and took into account all those things that were appropriate to take into account in its final determination. Although the financial disadvantage was considered by them this was not the only fact that they took into account.
We see no basis upon which there is justification having regard to the principles of House v R to vary the sanction imposed.
Accordingly, we have no option but to dismiss the Deputy Commissioner’s appeal.
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