Kennedy v Deputy Commissioner Stewart
[2011] QCAT 667
•22 December 2011
| CITATION: | Kennedy v Deputy Commissioner Stewart [2011] QCAT 667 |
| PARTIES: | Bryan George Kennedy (Applicant/Appellant) |
| v | |
| Deputy Commissioner Mr Ian Stewart (Respondent) |
| APPLICATION NUMBER: | OCR036-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 29 November 2011 and 2 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas AM QC, Presiding Member Michelle Howard, Member |
| DELIVERED ON: | 22 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent's decision of 16 February 2011 that the following charge was substantiated, namely that between the 10th day of December 2007 and the 18th day of December 2007 at Doomadgee or elsewhere your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you: (a) whilst the (acting) officer in charge of Doomadgee Police Station facilitated the transfer of alcohol in to a community subject to an Alcohol Management Plan in a manner specifically designed to circumvent the purpose of the alcohol restrictions, is set aside, and in lieu thereof it is determined that the said charge is not substantiated. 2. The respondent's decision of 16 February 2011 that the following charge was substantiated, namely 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, is confirmed. 3. The respondent’s decision of 16 February 2011 that the following charge was substantiated, namely that between the 10th day of December 2007, and the 18th day of December 2007 at Doomadgee your conduct was improper in that you: (a) inappropriately allowed a civilian to have possession of official Queensland Police Service accoutrements, is set aside, and in lieu thereof it is determined that the said charge is not substantiated. 4. It is directed that a) Applicant’s submissions on sanction be filed in QCAT and served on the respondent on or before 7 January 2012; b) Respondent’s submissions on sanction be filed in QCAT and served on the applicant on or before 21 January 2012; c) Reply if any by applicant to be filed and served on or before 31 January 2012. |
| CATCHWORDS: | POLICE – MISCONDUCT – whether conduct of officer did not meet standard of conduct generally expected of an officer Queensland Civil and Administrative Tribunal Act 2009, s 20(2) Aldrich v Ross [2001] 2 Qd R 235 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Bryan George Kennedy was represented by Mr S Zillman (counsel) |
| RESPONDENT: | Deputy Commissioner Mr Ian Stewart was represented by Mr S McLeod (counsel) |
REASONS FOR DECISION
This is a review of a disciplinary proceeding which dealt with three charges against the applicant, Bryan George Kennedy. At the time of the proceeding he was a Senior Sergeant.
The decision-maker, Deputy Commissioner Ian Stewart, found the charges substantiated, and ordered that the applicant be dismissed from the force.
Review is sought of the findings that the charges were substantiated, and of the sanctions that were imposed.
The charges, in the order in which we will deal with them, including their relevant particulars are:
1. That between the 10th day of December 2007 and the 18th day of December 2007 at Doomadgee or elsewhere your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you:
a)Whilst the (acting) officer in charge of Doomadgee Police Station, facilitated the transfer of alcohol in to a community subject to an Alcohol Management Plan in a manner specifically designed to circumvent the purpose of the alcohol restrictions.
Further and better particulars
Investigations have identified that:
§You were acting in the capacity of Senior Sergeant, Officer in charge of Doomadgee Police Station;
§At the time the Alcohol Management Plan allowed only three cartons of beer per person to be brought into the Doomadgee community;
§You facilitated the transfer of twenty cartons of beer into the restricted zone three cartons at a time; and
§You instructed subordinate officers to undertake that process.
2. 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.
3. That between the 10th day of December 2007 and the 18th day of December 2007 at Doomadgee your conduct was improper in that you:
a)Inappropriately allowed a civilian to have possession of official Queensland Police Service accoutrements.
Further and better particulars
Investigations have identified that:
§You were acting in the capacity of Senior Sergeant, Officer in charge of Doomadgee Police Station;
§You were in attendance at the Doomadgee Police Recreation Club in a social capacity;
§Kirra White, (then) a civilian employed at the Mount Isa Police Citizens Youth Club, but also in attendance, in your presence, and was dressed in your uniform;
§Kirra White also had possession of an official Queensland Police Service accoutrement belt containing a Glock 22 service firearm and ammunition, ASP service baton, OC spray and handcuffs; and
§You failed in your responsibility pursuant to the Weapons Act 1990, QPS Administration Manual, Operational Procedures Manual, Human Resource Management Manual and Code of Conduct.
The material gathered during investigations into Sergeant Kennedy’s conduct was extensive. It seems to have arisen out of inquiries that were being conducted into the conduct of his colleague Sergeant Nicole Gee. The material in the investigations as far as it concerns Sergeant Kennedy includes 2,037 pages of statements and other material which are contained in volumes 3, 4, 5, 6 and 7 of the record prepared for this review. There are also two volumes of transcripts and other documents concerning the conduct of the original proceeding before Deputy Commissioner Stewart.
The decision-maker’s reasons for decision are themselves 576 pages long, consisting mainly of extensive quotations from interviews, interspersed with observations by the decision-maker. It is difficult to locate primary findings of fact on contested issues or any concise statement of the facts as found.
It is of course our task to make up our own minds on the evidence, and conduct a fresh hearing on the merits in the manner recognised in Aldrich v Ross [2001] 2 Qd R 235; QCAT Act section 20(2). The primary source of our jurisdiction is sections 219G, 219H(1) and 219BA(1) of the Crime and Misconduct Act 2001.
Facts
Charge one – alcohol at Doomadgee
Until December 2007 Senior Sergeant Kennedy was the officer in charge of the Mount Isa Police Station which employs a staff of 55.
He then accepted a posting as officer in charge at Doomadgee which employs a staff of ten. Immediately preceding his transfer there had been trouble in the Doomadgee community area. The officer in charge of that station had been transferred following an incident in which he and another police officer were shot at by a community member with a rifle.
There was some tension between the community and the police, and the station was staffed with mainly inexperienced persons. Morale was low.
Doomadgee was subject to an Alcohol Management Plan. It was a “restricted area” under section 173G of the Liquor Act 1992. Under the Liquor Regulation 2002 as it was in effect at the relevant time[1] in schedule 1B –
[1] Reprint 4B.
“The prescribed quantity for the restricted area is –
b)for beer - 27L; and
c)For spirits or wine - zero”.
It is common ground that three cartons of beer (containing 24 x 375ml containers) did not exceed the prescribed quantity.
The applicant at material times was in a relationship with another police officer stationed at Mount Isa, Sergeant Nicole Gee. She was the Branch Manager at the Mount Isa PCYC (Police Citizens and Youth Club).
Sergeant Gee planned to run a function at Doomadgee called the Doomadgee Kids Christmas Extravaganza and enlisted the support of local stakeholders, mainly from the Mount Isa area, including police.
She enquired of the applicant whether liquor could be transported into the relevant area for consumption by her staff and volunteers who assisted with the event.
The applicant had made enquiries in relation to the permitted practices concerning transportation of liquor into the community area, including an enquiry from Mr Tolhurst, a liquor licensing officer with the Office of Liquor and Gaming Regulation.[2] He was advised by Tolhurst, and others, and he accepted that the practice of couriering beer into the community, three cartons at a time, was lawful and was an accepted practice at Doomadgee.
[2] Record Volume 1 pages 72-73, Statement from Mr Tolhurst.
It has not been suggested, and is not now suggested, that the advice was incorrect. The legislation restricts the quantity of liquor that may be ferried or carried in to three cartons of beer, but it does not forbid possession within premises of a greater quantity than this. The allegation against the applicant is that by permitting this accepted practice to be used for the benefit of those involved in the Kids Christmas Extravaganza he was "circumventing the purpose" of the Alcohol Management Plan.
The applicant, after making the necessary enquiries, advised Sergeant Gee of the carriage limit and that private property, such as dwellings, was exempt from the limit, and that liquor other than beer was restricted from anywhere in the community. He also advised her that the usual practice in relation to transportation was for beer in excess of three cartons to be ferried into the community three cartons at a time so as not to breach the law.
It was a common, acceptable and lawful practice for community members to stock alcohol especially when road closures were imminent due to the wet season. It was lawful to do so.
The road which runs through Doomadgee, the Savannah Way, is exempt from the Alcohol Management Plan. Liquor intended to be brought in was usually brought to a point on the Savannah Way, near White Rock Station about five kilometres away from the prescribed area. The individual responsible for the importation would then be notified and would arrange for collection and delivery of no more than three cartons at a time.
The Kids Extravaganza was basically a diversion for children in the community. It was held in a park in the settlement. Presents were distributed there over a three day period somewhere between 10 and 18 December. Local community adults were involved. It was an alcohol-free event.
The liquor in issue in these proceedings was intended for, and used only by, the police and other persons who volunteered their services for what was plainly a worthwhile activity. The liquor which they consumed was consumed in the Social or Rec Club which is within the police reserve at Doomadgee.
Both the Kids Extravaganza and the socialising that occurred within the Social Club appeared to have been appropriately conducted. There has been no complaint from any member of the community over anything that happened during the event other than a complaint that some soft drink was charged for at the extravaganza. There was no complaint that police and their helpers consumed alcohol within their Social Club in the course of the function.
The total alcohol brought to the area as organised by Sergeant Gee was the equivalent of approximately 20 cartons of beer, some of which was alcoholic ginger beer.
During the investigation into alleged misconduct by Ms Gee and Sergeant Kennedy a considerable number of police officers were asked for their opinions on the practice of ferrying beer into the community. No one has suggested that the practice was unlawful. Some thought it undesirable, but no one suggested it could or should be stopped. The inference seems to be that police should abstain from a practice in which others were permitted to engage. The foundation of the charge seems to have been a moral objection, held by some police officers, against the “ferrying” practice, and disapproval of the bringing of a relatively large quantity of liquor for consumption of police and their helpers during an event.
It must be recognised that people who work at Doomadgee, whether police, teachers or other personnel are not required to be teetotal. At no relevant time was social drinking, for example in the Social Club, prohibited. Drunkenness or riotous behaviour would of course be something else, but there is no evidence that there was any education program or other form of persuasion upon police officers to avoid social drinking within the community. The question whether they should do so was surely a personal choice for individuals.
In this respect the seeking of opinions from various police officers from high to low rank about the appropriateness of persons taking advantage of the opportunity to ferry more than three cartons by making separate trips was bound to produce a range of personal opinion. In cases concerning most professional occupations, evidence of the views of the peer group has always been regarded as relevant in determining whether conduct should be regarded as improper, but on a subject like this the range of personal opinion is very wide and apt to be idiosyncratic. As it turned out the evidence failed to reveal any true consensus. We have examined the evidence of the various persons whose opinions were sought on these aspects, including Inspector McHugh, Superintendent Moloney, Superintendent Hopkins, Father Lowcock (a police Chaplin), Mr Zvaigne (President of the Mount Isa PCYC) and Constable Garnett.
In our view the weight of the evidence supports a finding that the ferrying practice had been in existence for some time, that it was generally accepted, that some would take advantage of the system and that others would not.
It would obviously be undesirable for police to flout their own consumption of liquor within the community, but there is no suggestion that anything like this occurred here. Furthermore, the same rules (concerning capacity to stockpile more than three cartons of beer at the one site) applied equally in favour of local residents, police, nurses and everyone else.
The essence of the charge against the applicant is that he “circumvented the purpose” of the alcohol restrictions. This is a very imprecise allegation. The "purpose" of the Plan can only be derived from its own words. Plainly there are serious restrictions on what can be brought in, but it was not intended that Doomadgee be a dry community. Strict control within the limits specified in the plan was necessary to minimise problems caused to the community through excessive consumption of alcohol. But the controls were confined to those in the plan. It would be regarded as paternalistic, if not unlawful, if police imposed further requirements or restrictions because of personal beliefs that the plan did not go far enough.
In this case the applicant permitted and assisted his colleagues to bring in a relatively substantial quantity of alcohol for the consumption of police colleagues and volunteers in a charitable exercise, and he did so in a manner that had been used and approved for some time. He is accused of insensitivity, but in the absence of community complaint there is no sufficient basis for that accusation.
In the course of this survey of opinion about the propriety of permitting police to bring alcohol into the area, reference was made to a past incident in which police were involved in a large importation of liquor in pallets from the Burketown Hotel, into the area. Reference was made to the “anger, angst and potential riot such conduct by police could trigger amongst the Doomadgee community”.[3] The evidence however included less censorious views, including those of Inspector Hopkins, the Superintendent at Mount Isa at the time of the incident. He stated that his expectation of his officers was that they should enforce “whatever the Alcohol Management Plan declared.”[4] He indicated that the plan had at one stage been brought back to two cartons, and “that police abided completely and totally .. with no .. variance at all to the same conditions to which the .. people lived in the community had to comply with”.
[3] Reasons for decision, record page 351.
[4] Referred to in reasons for decision Vol 1 page 314 of record; cf pp 313-315.
It is difficult to quarrel with that approach.
The disapproval of some other police officers of the idea of police taking advantage of the ability to accumulate more then three cartons of beer seems to have stemmed largely from the earlier Burketown Hotel episode, and is probably based on an understandable recognition of the need for police in a community like Doomadgee to act diplomatically and to not be seen to use alcohol in a way denied to members of that community. This seems to be the only possible basis upon which it could be suggested that the applicant’s involvement in the importation of twenty cartons in December 2007 for the use of police and other helpers amounted to “misconduct”.
Even the senior officers who disapproved the “ferrying” practice conceded that it was quite legal. Their disapproval was based on a perception that to do so was “contrary to the spirit of the legislation”. But in the end, it is for the law-makers to prescribe what may and what may not be done. The Alcohol Management Plan, as enacted by substantial subordinate legislation, expressly permitted the carriage of three cartons at a time, and it did not outlaw private accumulation of a greater quantity.
This was recognised well before Sergeant Kennedy’s appointment as officer in charge at Doomadgee in December 2007. The regime was applied equally to members of the Doomadgee community and to police and other employees.
The applicant’s decision to support Sergeant Gee’s request was motivated by a desire to improve the morale of those who work at the community, and provided that the exercise was reasonably controlled, it should not be condemned as improper.
Of course conduct does not need to be a criminal offence before it can amount to misconduct. For present purposes it would only be necessary to show that the applicant’s actions “(did) not meet the standard of conduct the community reasonably expects from a police officer” (Police Service and Administration Act 1990, section 1.4 – Definition “misconduct”).
In the absence of any evidence of indiscreet behaviour by the applicant or anyone else associated with the relevant social occasion, and in the absence of even a hint of local resentment or disapproval, there is simply no foundation for a finding of impropriety or misconduct. Indeed, on the evidence the overall exercise appears to have been beneficial. As earlier mentioned, the only evidence of complaint concerning the whole exercise was an objection to the fact that some soft drinks were charged for at the Kids Extravaganza. We find it difficult to find any proper basis for the charge.
We are unable to see that any conduct by the applicant in relation to these events could satisfy the definition of “misconduct” in section 1.4 of the Police Service Administration Act 1990, or that impropriety of any nature has been shown.
Charge two – the Trailblaza fridge
The investigation of this matter arose in the course of investigation of numerous matters of alleged misconduct by the applicant’s colleague, Sergeant Nicole Gee. The applicant, immediately preceding his transfer to Rockhampton, was the officer in charge of the Mount Isa Police Station and resided in the officer in charge’s house with Sergeant Gee. She was the branch manager of the Mount Isa Police Citizens Youth Club (“the PCYC”) and the applicant was a member of the PCYC Committee.
In April 2008 a “Trailblaza” portable camping fridge was donated to the PCYC by Norcoast Refrigeration Company Pty Ltd. This was done by the company’s Chief Executive Officer Ms Margaret Albeiz. It was a donation to the PCYC and to no one else. She was willing for it to be raffled or used at youth functions so long as it gave assistance to the PCYC. Ms Albeiz spoke of her intentions to both Sergeant Gee and the applicant, and they were at all material times aware that the beneficiary of the gift was the club.
The basis of the present charge is that the applicant, along with Sergeant Gee, subsequently took possession of the fridge and used it for their private purposes. It was taken by them from Mount Isa to Rockhampton when the applicant was transferred there in June 2008. Eventually he arranged for the fridge to be returned by courier to the PCYC in January 2009 after he became aware that it was subject to police investigation.
The essence of the charge is wrongfully using someone else’s property. In defence the applicant relied on a number of submissions, some of them in the alternative.
The applicant’s primary answer to the charge is a claim that a special arrangement was made between him and the donor (Ms Albeiz) that he should get to know the workings and capability of the fridge so that he could assist to promote it at future events at which the police might have a presence. He also claims to have expressed concerns about the safety of PCYC staff who might use the fridge in remote areas and that he considered it desirable that standard operating procedures (“SOPs”) should be prepared concerning its use. There is however no evidence that he ever prepared any such SOP.
According to the submissions made on the applicant’s behalf during the disciplinary proceeding, Ms Albeiz, because of her age and inability to drive, had difficulty in presenting the product at regional events. The applicant ascertained that she often promoted the fridge by making contact with local community groups who would assist her with displays, and that she commonly donated a fridge to such groups. Knowing that police were often associated with community groups, the applicant suggested that due to his impending transfer to Rockhampton he and Sergeant Gee might be able to assist her with future events in North Queensland or Central Queensland. He claims to have offered her their assistance, and that she accepted his proposal. He further claims that she told him to use the Trailblaza and get to know “its workings” and capabilities so that he and Gee could promote it at future events.
Unfortunately for the applicant, Ms Albeiz denies any conversation or instruction of this kind. She stated that she had made it clear to all concerned that it was a simple donation for the benefit of the PCYC and that there had been no special arrangements made with the applicant or Sergeant Gee concerning testing or other special activities concerning the fridge on their part. The thrust of the applicant’s explanation is that she agreed that he should assist her with the future promotion of the product. She denied any such need, intention or conversation.
It was submitted on the applicant's behalf during the original hearing, and repeated before us, that "Inspectors failed to interview Ms Albeiz properly and advised her that the applicant had said she had told the applicant to ‘test the fridge’. This was never said by the applicant.”
That submission is simply incorrect and contrary to the evidence. The applicant had clearly said so during his initial interview.[5] The main thrust of the applicant’s version in this respect was fairly put to Ms Albeiz during her interview and she roundly rejected it.
[5] Vol 4 pp 578-579.
It may also be noted that during interlocutory proceedings, leave was granted to any party, if so advised, to call further evidence from Ms Albeiz, but neither party chose to call her.
We do not think that the fact that Ms Albeiz, after the Mount Isa donation, sent a “thank you” card to Ms Gee in which she “looked forward to keeping in touch”, or any other evidence concerning the subsequent actions of Ms Albeiz affords any reason to support the special arrangement contended for by the applicant.
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 PCYC property, and we reject it.
The applicant’s explanation of how the fridge ended up in his house in Rockhampton is lengthy, elaborate and difficult to summarise. It is to the effect that after the exposition in Mount Isa at which the fridge was featured, it was not taken to PCYC premises. Instead it was brought back to the applicant’s house in a utility which was parked at the premises. Ms Gee then needed to use the utility and the applicant assisted her to remove the fridge into his premises.
According to both Sergeant Gee and the applicant, when the time came for them to move to Rockhampton, the packers “by mistake” packed Mr Kennedy’s Chescold camping fridge with the other items that were to go to Rockhampton. The applicant said that although he had initially included it in the inventory to be moved, he subsequently told the removalists not to pack it because he had decided to stay in the vacant house for a few days and intended to use the fridge. He said that he also showed them the Trailblaza and told them not to pack it. The point of the “mistaken packing” story seems to have been to explain how he came to use the Trailblaza at Mt Isa before his departure. The evidence of the removalists, Sutton and Thompson, however is otherwise. It suggests that they were duly authorised to pack the Chescold fridge. They also noticed that the Trailblaza was already in use and contained cold drinks and a "couple of cold goods". The applicant told them that they (he and Gee) "were going to move it themselves”. We find the evidence of Sutton and Thompson generally acceptable.
By then he and Gee had decided to take the Trailblaza with them personally in their vehicle and trailer when they drove to Rockhampton. They duly did so.
There is no doubt that the applicant used the fridge from time to time during the periods when he had possession of it. Some submissions were made which attempted to minimise its usage, but the evidence leads to the inference that it was used as and when it was convenient to do so. He clearly admitted that he used it at Mt Isa in the days prior to his transfer to Rockhampton, and his counsel concedes that there is also evidence that it was used for some short time prior to that. Considerable debate occurred during the earlier proceedings on the question whether it was used by him and Gee during their journey to Rockhampton, but in our view, this is an issue which does not really matter, because there is adequate evidence of its use both before and after the journey. There is evidence that after its arrival in Rockhampton at the applicant's premises it was taken upstairs. The applicant’s statements concerning subsequent use of the fridge included his intention on several occasions to send it back to Mount Isa before actually doing so in January 2009; that on other occasions that the item was essentially forgotten about; and that he had used the fridge in Rockhampton at Christmas time.
Quite clearly it was used during the Christmas period. The applicant acknowledged that it was moved downstairs "for the kids" to use if they wished. On the whole it seems to have been treated as a piece of domestic property. There is no suggestion of any use, research or action on his part concerning the alleged special reason for its retention.
Sergeant Gee acknowledged that they had used the fridge but claimed they had done so on the basis that she was coming back to Mount Isa in due course. She claims that Ms Albeiz had said to her “You’re free to do with it whatever you like ..” but this is contradicted by Ms Albeiz.
The applicant also contends that he was given “lawful authority” by Sergeant Gee, to possess and use the fridge. As chief officer of the PCYC it was submitted that Sergeant Gee had unfettered authority to permit anyone to use the fridge for any purpose. We do not think that this authorises or justifies any actions by either Sergeant Gee, or the applicant, contrary to the purpose of the gift of which both she and he were well aware. It may be that Sergeant Gee was the prime mover in the appropriation of the fridge to the domestic benefit of herself and the applicant, but the applicant was well aware of the circumstances, and he was prepared to take advantage of the opportunity that arose to use a fridge which he knew belonged to the Mount Isa PCYC.
We reject the submission that Sergeant Gee lawfully gave consent for the fridge to be used by her and the applicant for private purposes.
Taking the unit from the club for her own domestic purposes was a breach of trust. To do so was highly improper and unethical. Gee must have known this. So must the applicant.
Following its donation the fridge was taken away by the applicant and Gee, and they thereafter treated it as if it was their own property. They continued to use it until its loss was investigated, following which they returned it to the true owner. 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 Sergeant Gee and the applicant both knew that it was donated for the sole use of the PCYC. Whether the appropriation of the fridge be characterised 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.
This, we think, was unbecoming of a police officer and also does not meet the standard of conduct the community would reasonably expect of a police officer. It is therefore of capable of constituting “misconduct” and in the circumstances we think it amounts to misconduct.
Charge three – police accoutrements
This charge arose out of a light-hearted incident in the Social Club during the period of the Kids Extravaganza at Doomadgee in December 2007.
The essence of the charge is that Kennedy “inappropriately allowed a civilian to have possession of official QPS accoutrements”.
The relevant club area is within the police reserve in the Doomadgee settlement.
It seems that the applicant was the butt of a prank by others during off duty recreation. There is no suggestion that the applicant was negligent in relation to his own uniform or accoutrements. The prank was performed by one of the volunteer helpers, a civilian, Ms Kirra White who was an employee of the Mount Isa Police Citizens Youth Club. Sergeant Nicole Gee obtained the applicant’s uniform and provided it to Ms White who put it on. Another police officer (named Robinson) at a later stage supplied his own belt and accoutrements to her. It contained an official Queensland Police Service belt with a glock 22 firearm and ammunition, an ASP service baton, an OC spray and handcuffs.
Ms White said that having donned the uniform, she went into the club. The evidence suggests that she wore the uniform for about ten minutes in the rec club. At some stage during this ten minutes, Robinson gave her his accoutrements belt to wear.[6] There is no evidence about how long she had the belt, but obviously it was something less than the full ten minutes. While she was in the club she confronted the applicant, and apparently acted a charade. The applicant responded by defending himself with the club mascot, a stuffed penguin.
[6] Record volume 5 pages 1033-1039; and volume 7A-6A.
Robinson who supplied the belt and firearm remained in White’s presence throughout the time that she wore his equipment. He said he did this as he thought it would “make a good photo”.
When this matter was belatedly investigated 16 months later, the applicant recalled the incident as:
“Kirra’s come in wearing my uniform .. pretending she was me .. doing a joke or taking me off .. for the amusement of all the people that were there. I probably laughed along with the rest of it although I was the but of the joke but I wasn’t offended by it.”
The interviewer then noted that the object of concern was her wearing of the police utility belt, and he drew attention in the photographs that had been taken at the time. The applicants response was “if she is then it’s not my utility belt .. my utility belt doesn’t go home with me like my uniform does”. He did not know whose utility belt it was or how she got to be in possession of it. His recollection was that “when she entered the rec club she wasn’t wearing the utility belt to my knowledge.”[7] His initial reaction was “Look at this idiot”. Kirra White was known to him as a young impressionable female who liked “to hang around with the policemen”, and was infatuated with police activity. He observed “it probably wasn’t the forum for me to put a dampener on the evening.”[8] He added “I laughed along with it .. I posed for a photograph with her .. and the mascot which is the penguin.”
[7] Record volume 7 page 19A.
[8] Ibid, page 21A.
Plainly he did not recall her having any firearm. When advised by the interviewer that she did, he responded “that’s news to me”, but, looking at the photographs said “but obviously I’m standing there with her”. He stated that “there’s no way in the world I have empowered her by adding to her pretending she is a police officer .. by giving her accoutrements.”[9]
[9] Ibid, page 23A.
The thrust of his answers is that he did not realize she had the utility belt, and that so far as he was aware she did not come in with it. He stated “I didn’t really look other than think oh my god it’s Kirra you know. And you know so while she was there I put my arm around her and got a photo to be in the spirit of everything .. hopefully to put an end to it and she’d go and get changed .. everyone have a laugh about it later.”[10]
[10] Ibid, pages 24A, 25A.
The basis of the charge is allowing a civilian to have possession of special police equipment. In short it is said that he condoned an impropriety and failed to intervene quickly enough.
Senior Constable Robinson who supplied the relevant accoutrements was apparently not charged. The applicant was charged, presumably on the basis that he was the senior officer present. It is true that vigilance is necessary to prevent misuse of, and to preserve utmost respect for the safe custody of police accoutrements, especially a firearm. It is not acceptable that such items bear the substance of pranks, and it behoves any senior officer to intervene promptly to prevent such behaviour. We are therefore of the view that aiding or abetting such conduct, or failure by a senior officer to take reasonable action to avoid it could be capable of amounting to misconduct, even in a light-hearted context.
The question then is whether the applicant was aware of White's possession of police accoutrements and whether he should have intervened sooner than he did.
The applicant has at all times claimed that he did not realize Ms White had possession of a firearm or accoutrements and states that if he had known he would have taken immediate action to remove the gun belt. The presence of the gun would make prompt intervention necessary, and we see no reason to disbelieve Mr Kennedy when he said that had he been aware of its presence he would have taken immediate action. His evidence and the evidence of other persons present is consistent with his claimed lack of knowledge that Ms White had the accoutrements.
This raises the principal difficulty for the applicant in this matter, as one of the photographs clearly show Ms White holding an extended baton. The photograph in question does not show the applicant as looking in her direction at that particular moment but it suggests that Ms White at some stage was holding a baton in a way that should have been visible to the applicant. However there is no useful evidence from anyone who was present about the nature of the interaction between Ms White and the applicant during the incident.
Should then the applicant be disbelieved when he says that he was not aware that she was in possession of police accoutrements? Counsel for the decision-maker strongly submits that the photograph suggests that he must have been aware at least of her possession of the baton. It is however quite possible that having seen it he failed to advert to its significance, or to reason that it must have come from some police officer’s accoutrements and that she might also have more dangerous components. He can be criticized for this, as senior officers are never off duty when they find a citizen committing an offence. But the criticism goes to a lack of vigilance, rather than to awareness of a state of affairs and condonation of it.
The question comes down to whether his failure to advert to the significance of her possession of the baton was a mindless oversight or an act of impropriety. We do not think that the evidence excludes the former. There was probably some lack of vigilance on his part at the time. But the charge is that he "allowed a civilian to have possession” of the accoutrements, and this implies a consciousness on his part that she had such possession. Mere lack of vigilance will not substantiate the charge.
The applicant’s decision to go along with the prank and resolve it in good spirit rather than make a tense incident out of it was within his discretion as chief officer to deal with the situation. It is noted that he discreetly spoke with Sergeant Gee (who was White’s supervisor) to tell White to remove his uniform and to terminate the incident, and that in due course occurred.
In the result we are not satisfied to the required standard that Sergeant Kennedy’s actions in response to this prank amounted to misconduct. We think it probable that he at some stage saw, or should have seen, the baton, but we accept that he at no time adverted to the belt or the gun. He was entitled to have consumed alcohol as he had, but he was not drunk. He decided to respond to the prank in a good natured way. His awareness of her possession of a police baton does not satisfy us that he was aware of her possession of the other items, especially the firearm. Overall his response was successful and the matter terminated without harm.
In these circumstances we do not think it was improper of the applicant to decide to deal with the incident in a light-hearted rather than a heavy handed way, and we do not think that he condoned any impropriety of which he was aware. The charge is not substantiated.
Sanctions
Having found the applicant guilty on all three charges, the decision-maker imposed a penalty of dismissal on all three matters.
The application for review alleges that the sanctions were excessive, and seeks review of them.
The above findings indicate that the first and third charges were not substantiated, and accordingly the only matter in which a sanction must be imposed on the applicant is the matter concerning the Trailblaza fridge.
The submissions prepared by both parties in this matter were directed only to the issue of substantiation of the charges, and it seems to have been assumed that the opportunity would be given for further submissions on sanction in the event that different primary findings were made on the relevant charges. Accordingly we will grant leave to the parties to file further written submissions confined to the issue of sanction.
It will be directed that:
(a) Applicant’s submissions on sanction be filed in QCAT and served on the respondent on or before 7 January 2012;
(b) Respondent’s submissions on sanction be filed in QCAT and served on the applicant on or before 21 January 2012;
(c) Reply if any by applicant to be filed and served on or before 31 January 2012.
0
5