Lawler v Assistant Commissioner, Queensland Police Service
[2013] QCAT 313
•21 June 2013
| CITATION: | Lawler v Assistant Commissioner, Queensland Police Service [2013] QCAT 313 |
| PARTIES: | Detective Senior Constable Damien Lawler (Applicant) |
| V | |
| Assistant Commissioner, Queensland Police Service (Respondent) |
| APPLICATION NUMBER: | OCR308-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 17 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | K O’Callaghan, Senior Member |
| DELIVERED ON: | 21 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent’s decision that matter 1 was substantiated is set aside. 2. It is determined that matter 1 is not substantiated. 3. The sanction imposed with respect to matter 1 is set aside. 4. The respondent’s decision that matter 2 was substantiated is set aside. 5. It is determined that matter 2 is not substantiated. 6. The sanction imposed with respect to matter 2 is set aside. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – POLICE – DISCIPLINARY PROCEEDINGS – whether charge of misconduct substantiated; whether officer provided information which he knew or ought reasonably to have known was false and misleading – where charge unsubstantiated. Queensland Civil and Administrative Tribunal Act 2009 s20(1) Briginshaw v Briginshaw (1938) 60 CLR 336 Chapman v Assistant Commissioner Wilson and Anor [2011] QCAT 529. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| RESPONDENT: | Queensland Police Service was represented by Mr McLeod of counsel |
REASONS FOR DECISION
In the early hours of 24 November 2007 whilst off duty and after an evening of drinking, Detective Senior Constable Damien Lawler and his colleague Senior Constable Watson-Paul, wandered into the Fortitude Valley Police Beat. Discussions took place between them and 2 of the officers on duty at the beat. Whilst there is a dispute about what was said by Detective Senior Constable Lawler it is apparent there was a somewhat heated exchange between the officers and Senior Constable Watson-Paul. Senior Constable Watson-Paul has conceded to using obscene and inappropriate language. The officers were not aware that Detective Senior Constable Lawler and his colleague were police officers.
The CCTV footage of the event (with no audio) shows that about 90 seconds after Detective Senior Constable Lawler and Senior Constable Watson-Paul entered the beat a number of officers came from behind the desk and Senior Constable Watson-Paul is taken to the ground and handcuffed.
The events that took place in the beat have had an unfortunate impact on the careers of Detective Senior Constable Lawler and his colleague.
The incident and the subsequent investigation culminated in 2 charges of misconduct being laid against Detective Senior Constable Lawler. Those charges were found to have been substantiated by Assistant Commissioner Martin in September 2012 following a disciplinary hearing. He imposed a sanction of a deduction from Detective Senior Constable Damien Lawler’s salary of an amount equivalent to a fine of 2 penalty units for each charge. Detective Senior Constable Damien Lawler seeks to review the decision that the charges were substantiated and the sanctions imposed.
Background
Unfortunately for Detective Senior Constable Lawler this matter has a lengthy history. The events in the Valley Police Beat occurred in November 2007 and he was subject to a disciplinary interview in April 2009. Disciplinary charges were laid and found to be substantiated by Assistant Commissioner Dunn. Detective Senior Constable Lawler reviewed that decision and in doing so sought the leave of the Tribunal to submit new evidence. This was allowed and a decision was made by the Tribunal in that review to refer the matter back for reconsideration. Following the reconsideration the same charges were laid in May 2012 and a further disciplinary hearing held before Assistant Commissioner Martin in July 2012. In September 2012 the hearing resumed at which time the decisions currently under review were made.
The charges
The disciplinary charges of misconduct brought against Detective Senior Constable Lawler and found to be substantiated by the Assistant Commissioner were:
Matter one
That on 24 November 2007 at Brisbane your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you:
(a)Made derogatory comments about the Queensland Police Service;
Particulars
§Whilst inside the Fortitude Valley Police Beat you made derogatory comments about the Queensland Police Service namely,
“You’ve got to watch your back in this job working and you, you don’t get any support.”
(b)Failed to leave the Fortitude Valley Police Beat as lawfully directed by Constable Brockett;
Particulars
§When directed to leave the Fortitude Valley Police Beat as lawfully directed by Constable Brockett, you remained inside.
(c)Failed to treat Senior Sergeant Michael Donovan, Sergeant Mark Finch, Senior Constable Stephen Brockett and Constable Penelope McKerchar, fellow police officers with respect and dignity by utilising obscene language.
Particulars
§During conversations with Senior Sergeant Michael Donovan, Sergeant Mark Finch, Senior Constable Stephen Brockett and Constable Penelope McKerchar utilised obscene language.
(d)Attempted to unfairly influence Constable Colpoys by advising her you were a police officer and requested her to release plain clothes Senior Constable Watson-Paul who had been arrested for his behaviour.
Particulars
§Told Constable Colpoys you were a police officer and asked that Senior Constable Watson-Paul be released.
(e)Attempted to unfairly influence by way of a threat in reference to the Queensland Police Service disciplinary process, police officers in attendance that if plain clothes Senior Constable Watson-Paul was released, nothing further would happen.
Particulars
§Made threats to police officers in attendance in reference to the QPS disciplinary process, that “if we just let the defendant go, they would walk away and nothing more would come of our actions.”
Matter two
That on the sixth day of April 2009 at Brisbane your conduct was improper in that you:
Provided information in relation to the incident that you knew or ought reasonably to have known to be false or misleading.
Particulars
§In a disciplinary interview on 6 April 2009 you provided a differing version of events of the incident namely:
(a)You entered to the Police Beat and politely greeted the officers inside, and that they were cold and terse towards you; Constable McKerchar made derogative comments towards you or Detective Senior Constable Damien Lawler (should be detective Senior Constable Watson-Paul) and you attempted to appease them by being jovial and telling the officers to relax.
(b)Detective Senior Constable Watson-Paul did not resist police officers who arrested him and
(c)The arresting officers use excessive force during the incident.
The Acting Commissioner, whilst finding that the charges were substantiated, found that in relation to matter one, particulars (a) and (e) were not substantiated and he dismissed those particulars.
This application went to a compulsory conference in the Tribunal prior to the hearing.
Following the conference the Assistant Commissioner was directed by the Tribunal to notify the Tribunal and Detective Senior Constable Lawler whether Matter one (b), (c) and Matter two (a) would be contested at the hearing and whether the Assistant Commissioner, as a consequence, had any revised views on sanction.
The parties were then directed to file their submissions.
The Assistant Commissioner advised the Tribunal and Detective Senior Constable Lawler on 4 April 2013 that:
(i) he maintained his findings of misconduct for matter one based on particular (c) only and that particulars (b) and (d) would not be contested; and
(ii)he maintained his finding of misconduct for matter two as particularised and
(iii)maintained his finding as regards to sanction in respect to both matters one and two.
Detective Senior Constable Lawler filed his submissions dealing with all remaining contested issues.
The Assistant Commissioner filed his submissions 2 weeks later (2 weeks prior to the hearing) advising that “on 2 May Matter one (c) was reviewed and the respondent will not be making any further submissions on that point. Therefore, the respondent will submit only on matter two.”
At the hearing Counsel for the Assistant Commissioner confirmed that the Assistant Commissioner was no longer contesting matter one and would in effect be accepting that it was not substantiated. He was contesting matter two only.
The Tribunal appreciates the frustration of Detective Senior Constable Lawler at this late change in the position of the respondent. As Detective Senior Constable Lawler pointed out, the same charges had effectively been in place since 2009. There had been no change in the evidence and yet 2 weeks before the hearing in May 2013 all of the charges against him around his involvement in the actual incident in 2007 have been withdrawn.
In any event the charge which remains and which the Tribunal must consider is matter two.
The question for the Tribunal is whether it is the correct and preferable decision[1] that the following charge of misconduct is substantiated:
n“On 6 April 2009 Detective Constable’s conduct was improper in that he provided information in relation to the incident on the morning of 24 November 2007 that he knew or ought reasonably to have known was false and misleading.”
And
nWhether the appropriate penalty is a deduction from his salary equivalent to a fine of 2 penalty units.
[1] QCAT Act s20(1)
The incident
The material before the Assistant Commissioner and the Tribunal consisted of a transcript of interviews with some 14 police officers who either witnessed or had some involvement in the incident. It also consisted of notes taken by 2 officers (Constable Brockett & Constable McKercher) with whom the majority of the discussions took place; and statements of evidence taken from some officers for the purpose of criminal charges laid against Senior Constable Watson-Paul in relation to the incident. (These charges were withdrawn following mediation.)
Whilst there is some discrepancy about what was said and by whom it is accepted that Detective Senior Constable Lawler and Senior Constable Watson-Paul had spent some hours drinking alcohol prior to entering the beat. Senior Constable Watson-Paul concedes he was at the time unhappy and had some problems in his workplace and also had some “anger issues”.[2]
[2] Record page 566.
It is accepted by Senior Constable Watson-Paul that he spoke in an aggressive and inappropriate manner to the officers behind the desk. He recalls saying words to the effect “why don’t you get a fucking personality.”[3]
[3] Ibid.
It is also accepted that after about 90 seconds a number of officers came through the door and took him to ground and arrested him.
What is not so apparent is what was said and witnessed by Detective Senior Constable Lawler.
It can be seen from the CCTV footage that Detective Senior Constable Lawler:
·Spoke some words to persons behind the desk.
·Stood back when Senior Constable Watson-Paul was being arrested.
·Did not witness the total arrest as he was ushered outside about 14 seconds after the officers approached Senior Constable Watson-Paul.
The footage reveals that the time lapse from the approach to Senior Constable Watson-Paul to the completion of the handcuffing was one minute 10 seconds. As such Detective Senior Constable Lawler witnessed about 1/5 of the total event.
The issues that arise are:
(i)whether the information given by Detective Senior Constable Lawler was false and misleading; and
(ii)if so, did he know it was false and misleading; or
(iii)ought he reasonably to have known that it was false and misleading.
The Assistant Commissioner’s position is that when regard is had to the CCTV footage and the statements, notes and transcripts of interview from the other officers, the Tribunal can be satisfied to the requisite standard that information given by Detective Senior Constable Lawler was false and misleading.
It is well established that when considering the requisite standard of proof that the principles to be applied are those referred to in Briginshaw v Briginshaw[4].
[4] (1938) 60 CLR 336 at 361-362.
The appropriate standard is to the reasonable satisfaction of the decision maker with the degree of satisfaction varying according to the gravity of the facts to be proved.
Justice Dixon (as his Honour then was) stated:
… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal… in such matters, reasonable satisfaction should not be produced by in exact proofs, indefinite testimony and indirect references.[5]
[5] Ibid 361.
This matter presents another example of the difficulties that the Tribunal faces in reaching a decision where there are differing recollections of events and there is no testing of the evidence.[6]
[6]See Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564.
As has been previously noted by the Appeal Tribunal:
Where the evidence on critical points has been untested before the Tribunal, particular care should be taken to properly weigh the evidence, such as it is.[7]
[7] DA v Deputy Commissioner Ian Stewart [2011] QCATA 359.
If the information given by Detective Senior Constable Lawler was in fact false and misleading, in determining whether he knew it to be false and misleading consideration has to be given to his state of mind.
The words false and misleading carry with them connotation of deliberateness. As the Tribunal has noted in a previous police misconduct decision involving a charge of untruthfulness:
A person will not be guilty of untruthfulness through mere inaccuracy or honest mistake. If a person believes a statement is correct at the time the person makes it, the person is not being untruthful.[8]
[8] Chapman v Assistant Commissioner Wilson and Anor [2011] QCAT 529.
Further, in considering in the alternative, whether he ought reasonably to have known the information was false and misleading, a consideration must be given to whether the version of events given by Detective Senior Constable Lawler was a reasonable interpretation in all of the circumstances.
The information in question
The information which is alleged to be false and misleading was informative given by Detective Senior Constable Lawless to Inspector Gary Pettiford in a disciplinary interview in April 2009.
The interview was conducted over some hours. It took place 18 months after the incident.
Detective Senior Constable Lawler had viewed the CCTV footage twice, firstly shortly after the event and again the day before the interview.
The charge of providing false and misleading information is based on three separate allegations: The first concerns information about his demeanour and discussions that took place upon entering the beat.
The particulars given are that Detective Senior Constable Lawler gave a version of events to the effect that:
·He politely greeted the officers inside.
·They were cold and terse toward him.
·Constable McKercher made derogative comments to him or Detective Senior Constable Watson-Paul.
·He attempted to appease them by being jovial and telling them to relax.
These particulars do not identify which parts of the 70 pages of transcript contain this information. The following comments have been extracted by the parties as being relevant to the particulars.
·When asked to outline his knowledge of the incident he said[9] that they were walking past the beat and he decided to go in and see if a police officer he knew worked there was on duty. He saw a young uniformed Constable with his feet on the desk.
[9] Record page 676.
DL:… I greeted him and said “How ya going?” he was a bit cold and terse and there was a female beside him.
… I inquired of their night and they sort of indicated to me they didn’t want to talk.
… A couple of officers came in and out I believe I gave one or two of them a half baked salute.
… we were leaving and the female Constable said something and caught Larry’s attention and he responded, next thing you know the doors opened and honest I admit I thought it was a joke they had come out to give him a hug or something sir.”
·He was asked again later in the interview what happened after he entered the beat.[10]
DL:… I think I said “evening Constable how are you?” or something like that.
GP:… he was cold and terse towards you.
DL:… correct sir.
DL:… he sort of responded with basically “fuck off you’re drunk”. I think it sort of dictated the level of the conversation we were going to have.
DL:… when I first walked it was very cold and straight to the point sir.
GP:… what did you say to them then?
DL:I think I tried to smooth things over by being fairly jovial say you know “just relax mate it’s all right no dramas.”
[10] Ibid 691.
In relation to the particular that Constable McKercher made a derogatory comment he said Senior Constable Watson-Paul reacted to an inflammatory comment made by Constable McKercher namely “he’s nothing but a fucking prick”.
Senior Constable Watson-Paul gave answers in his interview consistent with Detective Senior Constable Lawler’s evidence.
Senior Constable Watson-Paul conceded he used offensive language to the officers. He said he had turned to leave and then heard the female officer say “they’re nothing but fucking pricks” and he reacted to that.[11]
[11] Ibid 566.
The Assistant Commissioner submits that based on the CCTV footage and the evidence given by the Officers involved it is open for the Tribunal to find that Detective Senior Constable Lawler’s version of these events was false and misleading.
The CCTV footage has no audio.
I accept Detective Senior Constable Lawler’s submissions that in the footage he is smiling as he enters the foyer. Whilst standing in front of the counter he raises both hands in a defensive conciliatory position. This is not inconsistent with his version that he was acting in a friendly manner and that the response was cold and terse.
This would not be an unusual reaction of the on duty officers when intoxicated persons enter the foyer at 3am. It is not surprising that they would not wish to engage in any lengthy conversation.
When one has regard to the answers given by other officers in their interviews they are in the main not inconsistent with Detective Senior Constables Lawler’s version.
The officer at the front desk when they entered the foyer (Constable Brockett) confirms that Senior Constable Watson-Paul and Detective Senior Constable Lawler were talking to each other when they came in but that he did not engage them in conversation.[12] He said of Detective Senior Constable Damien Lawler “… he looked like a stunned mullet, close to the glass with a big grin on his face – obviously intoxicated eyes were quite wide and just kind of muttering and saying stuff.” Detective Senior Constable Lawler submits and I accept that this is not inconsistent with his version that he greeted the officers and that perhaps Brockett did not hear what was said.
[12] Ibid 359.
Constable Brockett confirms that Senior Constable Watson-Paul was using offensive language to the effect that they all “needed to get fucking personalities.”[13]
[13] Ibid 360.
He also concedes that he told Senior Constable Watson-Paul “to get out you fucking drunk”.[14]
[14] Ibid 361.
Detective Senior Constable Lawler comments that this remark by Constable Brockett supports his version that they were cold and terse.
The statements made by the female officer, Constable McKercher, in her written statement and answers in her interview were at times inconsistent.
In her statement,[15] taken 3 months after the event, she says that immediately upon entering the foyer both Senior Constable Watson-Paul and Detective Senior Constable Lawler became immediately aggressive and began to swear saying words to the effect, “fucking boring cunts. Get a fucking personality.”
[15] Ibid 382.
Then in answer to a question asked at the interview she agreed that they were talking to each other. She said “… it was more like, jovial sort of talk like, I can’t remember exactly… they were loud and they were just being aggressive.”[16]
[16] Ibid 384A.
She did accept that Senior Constable Watson-Paul was more confrontational and that Detective Senior Constable Lawler was not.[17]
[17] Ibid 387.
She was asked in a second subsequent interview about the assertion that she said of Senior Constable Watson-Paul or Detective Senior Constable Lawler that “they are nothing but fucking pricks”.
She says she did not recall calling any person a “fucking prick” and that it would be unlikely that she did.[18]
[18] Ibid 394.
She says that when Sergeant Finch entered the door to the counter, he inquired who Detective Senior Constable Lawler and Senior Constable Watson-Paul were and either she or Constable Brockett said that “they were just drunken idiots.”
Sergeant Finch gave a statement and was interviewed. He said he walked into the foyer and that Senior Constable Watson-Paul and Detective Senior Constable Lawler addressed him as “Sergeant”. He entered into the area and asked Constable McKercher who they were and she said “just two drunken idiots.” He said that following further abusive comments he rushed the door to arrest Senior Constable Watson-Paul.[19]
[19] Ibid 399.
Both Constable Brockett and Constable McKercher agreed that it would have been difficult for Senior Constable Watson-Paul and Detective Senior Constable Lawler to hear what was said to Sergeant Finch behind the door.
Having regard to the body language of Detective Senior Constable Lawler on the CCTV footage, the statements made by him and other officers and answers to questions at the interviews I am not satisfied to the requisite standard that his version of events given at the interview in relation to the allegations in particular (a) is in fact false and misleading. The evidence does not justify such a finding and therefore I find that the particulars in (a) of matter 2 are not substantiated.
Allegation (b) and (c) relate to the arrest of Senior Constable Watson-Paul and can be considered together.
The information that is said to have been false and misleading in particulars (b) & (c) is information to the effect that Senior Constable Watson-Paul did not resist police officers who arrested him and that the arresting officers used excessive force during the arrest.
Again there is no reference provided to the transcript of Detective Senior Constable Lawler’s interview identifying the precise words which are said to be false and misleading. In the Assistant Commissioners submissions a reference is made to page 702 of the record where Detective Senior Constable Damien Lawler was asked whether he thought what police did to Senior Constable Watson-Paul that night was right.
DL:my personal opinion (or my professional)?
GP:personal and professional
DL:I think personally I don’t think they displayed a level of tolerance that was required however I can be see their point of view sir… I find the accusations made against him that he was carrying on like a pork chop and was misbehaving for a period of time are absolutely ridiculous.
Other than that sir I don’t think at any stage that anybody came from behind the counter to give a clear direction of what would happen to him if he did not remove himself from the premises or desist his behaviour.[20]
[20] Ibid 702.
He said earlier[21] in the interview about the arrest...
DL:…next thing you know the doors open and honest I admit I thought it was a joke… Larry was taken to the ground, he didn’t resist at all he’s pulled left right and centre like a rag doll sir. I heard one of the Constables yell out “get the spray”. I was ushered outside.
[21] Ibid 677.
The issue is whether that information was false and misleading and if so whether he knew it to be or should reasonably have known it to be.
The submission of the Assistant Commissioner is that when considering the CCTV footage and the evidence from others involved this information is false and misleading and Detective Senior Constable Lawler knew or ought to have reasonably have known that it was.
Senior Constable Watson-Paul’s account was that the door flew open which caused him to step back. He said he was grabbed by uniform officers, who struggled with him and others joined in pulling him from one direction to the other. There was a weight of people on him – he wasn’t resisting – he was being handcuffed.[22]
[22] Ibid 566.
The Assistant Commissioner directed the Tribunal to the statements of officers involved in the arrest. I accept that this evidence supports a finding that there was a struggle between Senior Constable Watson-Paul and the arresting officers when they took him to ground and handcuffed him.[23]
[23] Brockett 353, McKercher 382, Constable Michael Franks, 422, Constable Colpoy 444; Sergeant Finch 399.
The question though is whether what was said by Detective Senior Constable Lawler in his interview was false and misleading in the sense of being deliberately untrue or misleading or alternatively whether that interpretation of events was unreasonable in the circumstances.
The question must be considered in circumstances where Detective Senior Constable Lawler was only present for 1/5 of the time that was involved in arresting Senior Constable Watson-Paul and further that he was intoxicated. Apart from those few seconds of being present, he is in the same position as any other person who was not present and who has viewed the CCTV footage. He viewed it once after the event and again some 18 months later prior to the interview.
Having viewed the footage it is difficult to see what in fact Senior Constable Watson-Paul is doing because of the number of officers involved in the incident. It is apparent that a number of officers rushed at Senior Constable Watson-Paul that there was a struggle and he was taken to ground and handcuffed.
Detective Senior Constable Lawler maintains he was expressing his honest opinion in the comments that he made.
Even if Senior Constable Watson-Paul did in fact resist arrest I do not consider that the information provided by Detective Senior Constable Lawler at the interview, in the circumstances referred to above, can be said to be known to be false or misleading or indeed that he should reasonably have known to be false or misleading. The opinion expressed by Detective Senior Constable Lawler is not in my view an unreasonable interpretation of what can be seen on the CCTV footage. Therefore I am not satisfied to the requisite standard that the opinion he expressed amounts to providing information that he knew or ought to have known to be false or misleading.
The particulars are not substantiated. It follows that the charge of misconduct in matter two is not substantiated and the finding and sanction imposed is set aside.
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