Kennedy v Deputy Commissioner Stewart
[2011] QCAT 450
•20 September 2011
| CITATION: | Kennedy v Deputy Commissioner Stewart [2011] QCAT 450 |
| PARTIES: | Bryan George Kennedy |
| v | |
| Deputy Commissioner Mr Ian Stewart |
| APPLICATION NUMBER: | OCR036-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas, Member |
| DELIVERED ON: | 20 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] Leave to the applicant to adduce the envelope referred to in the application for new evidence; [2] Leave to both parties, if so advised, to adduce further evidence from Margaret Emily Albeiz concerning her sending of the “thank you” card and envelope to Sergeant Nicole Gee and concerning any contact she may have had with the Townsville PCYC after donation of the relevant fridge; [3] Any such evidence from Ms Albeiz is to be sworn and filed and served on the other parties on or before 7 October 2011; [4] If such evidence is adduced from Ms Albeiz, the party tendering the evidence is to make all necessary arrangements for her to be available for cross examination by telephone if the other party so requests; [5] The applicant’s submissions upon the review are to be delivered on or before 18 October 2011; [6] The respondent’s submissions are to be delivered on or before 1 November 2011; [7] Any reply by the applicant is to be delivered on or before 9 November 2011; [8] Leave to apply for further directions if necessary; [9] The matter will be heard on 29 November 2011. |
| CATCHWORDS: | Police discipline – review – receipt of fresh evidence – relevance |
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 received from the applicant.
REASONS FOR DECISION
This is an application under section 219H of the Crime and Misconduct Act 2001 for leave to adduce new evidence in a pending review in which Sergeant Kennedy seeks to set aside the respondent’s determination that he was guilty of misconduct. He also seeks review of the sanctions that were imposed.
One of the charges relates to improper use of a camping fridge by him and his companion Sergeant Nicole Gee. The fridge had been donated to the Mt Isa Police Citizen Youth Club (PCYC), and the allegations are essentially that Kennedy and Gee dishonestly used it.
The applicant filed written submissions on the present application on 29 July 2011.
The respondent has not seen fit to make any response.
The evidence that the applicant wishes to adduce is an envelope sent to Sergeant Gee at the Mt Isa PCYC by Ms Albeiz (the donor of the fridge) containing a “thank you” card.
The “thank you” card was already in evidence in the original proceedings.
In the course of his very lengthy reasons the respondent decision-maker mentioned the fact that Ms Albeiz had contacted a PCYC in Townsville to ask how the fridge was going. The respondent apparently considered that this contact might indicate that Ms Albeiz did not know how to contact Sergeant Gee. In an attempt to satisfy the Tribunal that this was not so, Sergeant Kennedy, during the original proceedings, produced and tendered the “thank you” card that had been supplied to him by Sergeant Gee.
The respondent rejected the applicant’s submissions that the “thank you” card evidenced knowledge of Sergeant Gee’s address, and of contact between Ms Albeiz and Sergeant Gee after the fridge was donated. The respondent considered that the “content and tenor of the card suggested it was left with the fridge at Mt Isa on the last day of Ms Albeiz’s visit as opposed to being (later) sent by post” (statement of reasons page 782).
The envelope might help to rebut those particular findings, and it is clearly something that should be before the Tribunal when it conducts its fresh review.
[10] The degree of relevance of this particular issue to the ultimate outcome remains to be seen. It is however capable of having a bearing upon Sergeant Kennedy’s defence, and as it appears in the respondent’s reasons for decision it must be recognised as sufficiently relevant to justify its reception.
[11] On the evidence before me the envelope was not in Sergeant Kennedy’s possession at the time of the original proceedings, and he could not reasonably be expected to have known of it or its relevance. Sergeant Gee located and provided the applicant with the envelope that had contained the “thank you” card after the respondent’s reasons had been provided to Sergeant Kennedy.
[12] On the material before me I am satisfied that the applicant did not know, or could reasonably be expected to know, of the envelope’s existence at the time of the original proceeding. I am further satisfied that in the circumstances of the present case it would be unfair not to allow Sergeant Kennedy to adduce the new evidence.
[13] The requirements of section 218H(2)(a) and 218H(2)(b) have been met.
Consequences of reception of further evidence
[14] The admission of this new evidence reopens the issue of the contact between Ms Albeiz and Sergeant Gee after donation of the fridge, and what can reasonably be inferred from such conduct. The issues which the applicant seeks to raise concern inferences as to the state of mind and knowledge of Ms Albeiz. It would be highly artificial to litigate such issues without evidence from Ms Albeiz herself on such matters.
[15] In my view both parties should have the right to call further evidence from Ms Albeiz if so advised, as to her contact with Sergeant Gee after her original visit to Mt Isa.
[16] The evidence received from Ms Albeiz (record 190-196) at the original hearing did not bear directly on this issue, though she roundly rejected the applicant’s defence that she had asked him and Sergeant Gee to use the fridge and test it. Ms Albeiz is obviously a material witness in relation to the circumstances surrounding the sending of the card, and (if she has any recollection of it) the nature of her contact with the PCYC Townsville.
[17] If either party chooses to adduce any such further evidence it should be presented in a form of a statutory declaration or affidavit, and immediately made available to the other party. If such evidence is produced it will be necessary to arrange for Ms Albeiz to be available for questioning by telephone on the hearing date, 29 November 2011. I shall however impose a limit upon the time by which any evidence from Ms Albeiz must be filed and served.
[18] The present directions require the applicant to deliver his submissions on the principal matter by 15 September 2011.
[19] The reception into evidence of the envelope should not have any significant impact upon the length of time necessary for preparing submissions, but I will extend the time this for delivery of the submissions to enable the parties to address all issues, including any further evidence that might be received from Ms Albeiz.
[20] I will also make directions that limit the time by which any further evidence may be called from Ms Albeiz.
Orders
Leave to the applicant to adduce the envelope referred to in the application for new evidence;
Leave to both parties, if so advised, to adduce further evidence from Margaret Emily Albeiz concerning her sending of the “thank you” card and envelope to Sergeant Nicole Gee and concerning any contact she may have had with the Townsville PCYC after donation of the relevant fridge;
Any such evidence from Ms Albeiz is to be sworn and filed and served on the other party on or before 7 October 2011;
If such evidence is adduced from Ms Albeiz, the party tendering the evidence is to make all necessary arrangements for her to be available for cross examination by telephone if the other party so requests;
The applicant’s submissions upon the review are to be delivered on or before 18 October 2011;
The respondent’s submissions are to be delivered on or before 1 November 2011;
Any reply by the applicant is to be delivered on or before 9 November 2011;
Leave to apply for further directions if necessary;
The matter will be heard on 29 November 2011.
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