Lawler v Acting Assistant Commissioner Dunn

[2011] QCAT 521

CITATION: Lawler v Acting Assistant Commissioner Dunn [2011] QCAT 521

PARTIES:	Damien James Lawler (Applicant/Appellant)
v
Acting Assistant Commissioner Kerry Dunn (Respondent)

APPLICATION NUMBER:   OCR276-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: 17 October 2011

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 1 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    The applicant is granted leave to adduce new evidence contained in the affidavit of the applicant sworn 18 August 2011.

2.    The application is listed for a directions hearing at 3.30pm on 17 November 2011.

CATCHWORDS: 

Police Discipline – review application – whether leave should be granted to adduce new evidence – where no new relevant evidence identified

Crime and Misconduct Act 2001, s 219(2b)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Damien James Lawler appeared in person
RESPONDENT:	Acting Assistant Commissioner Kerry Dunn was represented by Mr McLeod of counsel instructed by the Queensland Police Service Solicitor

REASONS FOR DECISION

1. Mr Lawler has filed an application to adduce fresh evidence[1] in his application to review the respondent’s decision that he is guilty of misconduct.  The finding of misconduct was made after the consideration of evidence from various police officers about his conduct when he attended the Fortitude Valley Police Beat, in the company of Constable Watson-Paul at 3:15am on 24 November 2007.  The particulars of the conduct are set out in two charges against him.  Matter 1 contains five particulars of improper conduct and Matter 2 contains two particulars of improper conduct.

   [1]        Crime and Misconduct Act 2001, s 219H.

1. Also included in the respondent’s consideration was a written submission prepared by Mr Lawler’s lawyer Mr Schmidt.  In that submission Mr Schmidt informed the respondent that Mr Lawler:

“concedes there is sufficient evidence in the brief for you to find both matters are substantiated.”

1. The Assistant Commissioner neither consents to nor opposes the application.  Mr McLeod quite properly submits it is a matter for the Tribunal having regard to the sworn evidence from both Mr Lawler and Mr Schmidt.

1. Mr Lawler contends that the concession was not made with his instructions nor is it correct.  In fact, he says it was totally opposite to what he instructed Mr Schmidt to put before the Assistant Commissioner on his behalf.  He says that after filing his application to review the decision he was referred to new lawyers by the Queensland Police Union Office and when he attended their office on 14 March 2011 he was, for the first time, given a copy of Mr Schmidt’s submissions to read.  It was then that he became aware of the concession made on his behalf.

1. Mr Lawler now wants to adduce new evidence in the review hearing that he did not give Mr Schmidt instructions to make the concession he did in the written submission.  Of particular importance is his contention that he did not read, or have an opportunity to read the submission prior to his attendance before the Assistant Commissioner on 28 September 2010.  He swears he told Mr Schmidt that he would accept one of the particulars of Matter 1 but not the balance and he denied the conduct complained of in the two particulars in Matter 2.

1. Mr Schmidt has filed an affidavit in which sets out his version of events surrounding the taking of instructions and the preparation of the submission.  He concedes that despite being given the brief of material some weeks earlier, he did not finalise the submission until the evening before the disciplinary hearing.  He met Mr Lawler at the Assistant Commissioner’s office and had the submissions with him.  He believed the submissions reflected Mr Lawler’s instructions.  

1. I have read the submission.  It comprises some 23 pages and took about 20 minutes to read and digest.  In respect of Matter 1 the submission does not deal with each particular and it is unclear which of the particulars are accepted and which are denied.  The submission is very general and goes to an explanation of Mr Lawler’s conduct that night rather than address each of the particulars.  In respect of Matter 2 there is an acceptance of disrespectful conduct towards Inspector Petiford during an interview in paragraph 50 contrary to the instructions given.  The Assistant Commissioner placed reliance on this paragraph when finding the charge substantiated.

1. The charges against Mr Lawler are serious.  I accept his evidence that he would have been nervous and apprehensive about the disciplinary hearing.  He says he did not have an opportunity to read the submissions before the hearing.  Mr Schmidt says he “took him through the submissions” and pointed out to him the approach to be taken.  This is denied by Mr Lawler.  Mr Schmidt candidly accepts that although he explained the approach to be taken he cannot say whether Mr Lawler completely understood this.

1. It seems relatively clear that he was not given the submission to read nor any reasonable opportunity to read it before the disciplinary hearing.  Given his state of anxiety it would have been difficult for him to not only read the submission but also to understand its content and its affect on his case before the Assistant Commissioner.  I am prepared to find for the purposes of this application that he did not fully appreciate the content of the submission until March 2011.

[10]  The consequences of leading the fresh evidence will have the effect of withdrawing the concession made in the submission.  Although the Assistant Commissioner has found that charges were substantiated he did so in partial reliance on the concession made.  This in turn was relevant to the sanction imposed, as all of the particulars in Matter 1 were accepted and particular (b) of Matter 2 was accepted.

[11]  In fairness to Mr Lawler he should be entitled to put his case addressing each of the particulars specifically, as has been done in the submissions prepared by his new solicitors given the seriousness of the charges against him.  It would be unfair not to allow him to do so.  Although, making the concession on even one particular in each Matter would have been sufficient for a finding of misconduct.  The finding based on only one out of five particulars would impact, presumably, on the sanction imposed.

[12]  I am satisfied that the requirements of both section 218(H)(2)(a) and 218(H)(b) have been satisfied.

[13]  It was conceded by counsel for the respondent that if the application was granted the practical consequences were that the matter would be referred back to the Commissioner for Police or his delegate for reconsideration.

[14] Section 23(1) of the QCAT Act allows the Tribunal to invite the decision maker to reconsider the decision. However, it is likely there will be a different decision maker. I will leave it to the parties to prepare draft orders to give effect to this decision. I will also list it for a directions hearing for the further conduct of the proceeding.

[15]  The orders of the Tribunal will be as follows:

1. The applicant is granted leave to adduce new evidence set out in his affidavit sworn 18 August 2011.