McKendry v Richards
[2009] QSC 433
•25 November 2009
SUPREME COURT OF QUEENSLAND
CITATION:
McKendry v Richards & Others [2009] QSC 433
PARTIES:
GERARD THOMAS McKENDRY
(applicant)
v
P. F. RICHARDS
(first respondent)
CRIME AND MISCONDUCT COMMISSION
(second respondent)
ANDREW CHARLES HENDERSON
(third respondent)FILE NO/S:
10101 of 2009
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
25 November 2009
DELIVERED AT:
Brisbane
HEARING DATE:
25 November 2009
JUDGE:
Fryberg J
ORDER:
Application dismissed with costs.
CATCHWORDS:
Administrative law – Judicial review – Grounds of review – Unreasonableness – Absence of evidence to justify decision – Onus on applicant to produce evidence – Open to decision-maker to make findings based on evidence presented
Administrative law – Judicial review – Grounds of review – Procedural fairness – Hearing – Nature of hearing – Evidence – Refusal to admit fresh evidence obtainable at first instance – Particular instance
Criminal Offence Victims Act 1995 (Qld), s 6, s 10, s 13
Misconduct Tribunal Act 1997 (Qld), s 23(5)COUNSEL:
P J Callaghan SC for the applicant
No appearance for the first respondent
G P Long SC & J J Allen for the second respondent
L Burrow (solicitor) for the third respondentSOLICITORS:
Bell Miller for the applicant
No appearance for the first respondent
Official Solicitor for the Crime and Misconduct Commission for the second respondent
QPS Solicitor for the third respondent
HIS HONOUR: This is an application to review the decision of Mr P F Richards that the applicant, Mr McKendry, be demoted from the rank of Inspector in the Queensland Police Service to Sergeant Pay Point 1.
The grounds of the application are: failure to take relevant considerations into account, taking account of irrelevant considerations, Wednesbury unreasonableness, breach of the rules of natural justice and absence of evidence to justify the making of the decision. Particulars of the third and fourth of those are given in the application.
The argument before me, however, was not framed in terms of those grounds in sequence. The grounds were grouped and I shall follow the course taken by the argument rather than by the format of the application.
Mr McKendry was the Regional Duty Officer of the Metropolitan North area on the 18th February 2006, and in that capacity he went to a residence owned by Mr and Mrs L. He found there some police officers who were investigating what appeared to be, and subsequently turned out to be, an attempt to kill Mr and Mrs L. Their daughter and her 21 year old boyfriend, Joshua Hockey, had formulated a plan to kill her parents. She had allowed Hockey into the house at night and he had hidden in the bathroom.
Things did not go to plan. Hockey attacked Mr L who fought him off and the police were called. In due course Mr McKendry arrived at the scene. By coincidence he knew Mr and Mrs L. He did so because their daughters had been at school together. The events which followed constitute the charge which was subsequently levelled against Mr McKendry by the Crime and Misconduct Commission.
That charge was contained in a direction to attend a disciplinary hearing misconduct given to Mr McKendry, apparently unsigned and undated, at some time of which I am not sure.
In any event, the matters to be considered were listed as follows:
"Matter 1: That on the 18 February 2006 at Brisbane your conduct was improper in that you:
(a) Failed to take command of first response policing activities at the scene of a serious crime.
(b) provided advice to LG and LL at the scene of a serious crime in circumstances where you had an actual conflict of interest.
Further and Better Particulars
Particular (a)
On 18 February 2006 you were the Regional Duty Officer when a serious crime was reported at [address].
You attended the scene of that serious crime.
You failed to ensure effective first response policing activities.
You failed to ensure the crime scene was adequately defined and protected.
Particular (b)
You knew LK, a co-offender, and LG and LL who were the victims of the crime.
Your main activities were directed to the welfare of LG and LL.
You provided inappropriate advice to the Ls in relation to providing the details of a particular solicitor, suggesting they not make a complaint against their daughter and using the mental health of their daughter to prevent her going to prison.
These actions interfered with the proper performance of your official duties as the Regional Duty Officer attending this incident."
The charge was heard by Assistant Commissioner Henderson who is the third respondent in the review proceedings before me and who has appeared to abide the outcome of the proceedings.
I should add that Mr Richards has at an earlier time done the same.
Mr Henderson, on the 28th of May 2008, over two years after the events in question, found the charge substantiated. He exercised his discretion not to impose a sanction. He did so without hearing the parties on the question of sanction but no complaint was made by the Commission on that ground. Rather, the Commission appealed to the Misconduct Tribunal of Queensland on grounds which related to the merits of the conduct.
Mr Richards was the member who heard the appeal and it is his order which is the subject of the present proceedings. The Commission's appeal was lodged shortly before the expiry of time and there was no appeal or cross-appeal by Mr McKendry on the question of whether he was, in fact, guilty of any charge. One can understand why there might not have been such an appeal or cross-appeal in the circumstances although whether the course which was subsequently followed has produced a just outcome for Mr McKendry is a different question.
Mr Callaghan SC on behalf of Mr McKendry grouped his submissions into three heads. The first related to the question of insight. It referred to a statement in Mr Richards' reasons for judgment in paragraph 103 as follows, "The Second Respondent's lack of insight into the level of his misconduct is apparent from his interview with Investigating Police, the most concerning being his assertion to Superintendent Pointing, 'What I am denying is that my actions were a conflict of interests. I had everyone's concerns at heart specifically theirs. Maybe over the top theirs. Possibly even do the same again.' Because of the Second Respondent's lack of insight into his own behaviour, I am not minded to suspend the sanction that I intend substituting for that imposed by the First Respondent."
The second respondent in the proceedings before Mr Richards was Mr McKendry.
For the Commission, Mr Allen, who appeared with Mr Long of Senior Counsel, submitted that the use that was made by Mr Richards on the question of insight of this material was legitimate. He submitted that an examination of the whole picture revealed this to be so. To see the picture and its context it is necessary to go back to the approach which Mr Callaghan took to the evidence.
Essentially Mr Callaghan's submission was that there was no evidence of lack of insight. He submitted that Mr Richards had fastened upon part of the relevant passage of the evidence as something which was most concerning and foreclosed for himself the option of suspending the sanction. He submitted that it was debatable whether the words spoken by Mr McKendry necessarily portrayed a lack of insight. Perhaps it was. Mr Richards thought that they did and I agree with him. I certainly think it was open to him to read the words in that way.
In the alternative Mr Callaghan submitted that the approach was erroneous and unfair. He pointed out that the words were spoken only three months after the events of February 2006 and before there had been any finding that the relevant conduct amounted to misconduct. Mr Callaghan submitted that at the time Mr McKendry was not commenting on behaviour which had been officially identified as misconduct. It was, he submitted, misconduct of a kind which was relevantly unprecedented.
Mr Callaghan submitted that at the very best evidence of Mr McKendry's state of mind at the time of the hearing before Mr Richards was not available. Mr McKendry had accepted the right of investigators to be concerned about his behaviour but disputed the label which was to be put on it. What his attitude was at the time of the hearing before Mr Richards was, Mr Callaghan submitted, not known. He submitted there was no evidence, therefore, to justify the decision.
It is true that there was no evidence of Mr McKendry's attitude at the time of the hearing earlier this year before Mr Richards. There had, by that time, been a finding that the conduct amounted to misconduct and Mr McKendry had not appealed against that finding. He chose to approach the review of the sanction proceedings, however, without seeking to put before Mr Richards evidence of his current attitude and on his behalf a submission was made that the relevant conduct did not amount to misconduct or in the alternative should be viewed as misconduct of a very low level.
It seems to me that it was open to Mr Richards to draw the inference that Mr McKendry had not substantially altered his view of the nature of his conduct from that which he held at the time of the interview with Mr Pointing. The submissions made on his behalf reinforce the inference which arises from his failure to offer any evidence on the topic. His current view of that conduct was a matter entirely within his own knowledge. If there had been any change it was a matter of which he could and should have given evidence. The lack of such evidence justifies the inference that his attitude had not changed, notwithstanding the substantial period of time which had elapsed.
Mr Callaghan also submitted that if it was intended by Mr Richards to use the interview in the way in which he did he should specifically have alerted Mr McKendry and those assisting him to that possibility. He pointed out that because there had been no sanction hearing before Mr Henderson there had never been an opportunity to put forward evidence of Mr McKendry's current attitude. That may be true so far as it goes but it does not, I think, make the conclusion which Mr Richards drew incorrect nor do I think that it can be said the issue was not alive before Mr Richards. It was a matter which I think Mr McKendry had adequate opportunity to address and he did not do so. In any event, there was at no time an application to allow further evidence on this aspect of the matter.
Mr Callaghan further submitted that a remark made by Mr Richards in the course of argument would have led counsel for Mr McKendry to cease to address the point and to refrain from applying to lead further evidence. Mr Richards said, "I take that point," when an aspect of the matter was raised before him. That happened in addresses. By that time the evidence was in. It is true that Mr Richards subsequently invited submissions as to whether there should be further evidence but that invitation did not relate to this topic. I do not think that his comment in any way misled counsel or foreclosed the issue for him.
The second aspect of the submissions was that Mr Richards erred in failing to have regard to the provisions of the Criminal Offence Victims Act 1995.
Mr Callaghan referred in particular to sections 6, 10 and 13 of that Act. It seems to me that his submissions, which focussed on paragraphs 95, 96 and 99 of Mr Richards' reasons, tend to a criticism which is more semantic than substantive. It is true that there were references in the reasons indirectly to the Act. Indeed there was an explicit reference in paragraph 95 to the Act in the context of the Operational Procedures Manual of the Police Service.
However, although Mr Richards did not specifically refer to the three sections I have nominated I do not think that can be said to have led him into error. He did conclude in paragraph 99 that police investigations took priority over any compliance with the sections to which I have referred. I am not persuaded that that conclusion was necessarily correct if it be regarded as a conclusion of law, but it does seem that the Manual certainly places the emphasis which must be given by police officers to an investigation centrally on that aspect rather than on the aspect of taking steps which might implement the three sections referred to.
In any event, Mr McKendry's conduct on the occasion in question was not related to the Act. He did what he did in the interests of Mr and Mrs L. He did not act because he thought he ought to do that as a police officer implementing the legislation. I am not able, in reviewing what Mr Richards has written, to see in his reasons an error of law or a failure to take proper consideration into account.
The last heading relied upon on behalf of Mr McKendry related to Mr Richards' refusal to allow fresh or new evidence in the proceedings before him. In those proceedings counsel for Mr McKendry, in written submissions prepared before the day of the hearing, submitted that in the event that the Tribunal needed to make findings in respect of the level of misconduct evidence ought to be considered from other sources including the solicitor, Robert Bax, and the two injured persons, LG and LL. That submission was reinforced in the course of addresses orally on the 12th of June this year.
Mr Callaghan submitted that in circumstances where there had been no sanction hearing this took on a particular importance. The evidence shows that Mr Lawler, Mr McKendry's solicitor, could probably have obtained affidavits from the Ls. The CMC had not done so and there was no material from them before Mr Richards.
New evidence could be put before Mr Richards only in accordance with section 23(5) of the Misconduct Tribunals Act 1997. That subsection provides:
“(5) However, the tribunal may give leave to adduce fresh, additional or substituted evidence (new evidence) if the tribunal is satisfied—
(a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or
(b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.”
Mr Richards rejected a submission that the proposed new evidence fell within either limb of that provision. He did so in relation to the first limb on the ground that the evidence could have been known at the original proceeding. In this regard, he was, I think, correct. It is true that Mr McKendry had been told not to speak to the Ls, and that direction by his superior could reasonably be expected to have remained in force while the proceedings against the two accused were still on foot.
However, there was no essential need for Mr McKendry, himself, to contact the Ls. His solicitor, or the persons acting for him from the Police Union at the time of the original hearing, could have done so, and, more importantly, could have made the material available at the time of the hearing before Mr Richards.
The material could have been obtained at the time of the hearing before Mr Henderson, and Mr Richards so held. That would not answer a submission that it would, in the special circumstances of the case, be unfair not to allow the new evidence to be adduced. However, I think the onus was on Mr McKendry to show that such unfairness would arise.
A number of submissions on Mr McKendry’s behalf were placed before Mr Richards, at Mr Richards' invitation, after the conclusion of the hearing in June of this year. It was submitted that the evidence of the Ls was central to the matter. It was submitted that the greater part of the evidence on which the finding of misconduct was based was constituted by hearsay, opinion and assertions by persons not present.
It was submitted that unfairness came in a number of forms. A decision not to adduce evidence at first instance would have been made with knowledge that dismissal, which was now in question before Mr Richards, was not available. That might have explained the failure to call the evidence.
Interestingly, there was no submission that there had been no opportunity to call the evidence at first instance for want of a sanction hearing.
Secondly, it was submitted that the absence of the evidence was not explained.
Third, it was submitted that Mr McKendry was not permitted to be legally represented at the original hearing.
Fourth, it was submitted that the evidence was often hearsay upon hearsay. There was a real risk of the Tribunal acting on the basis of wrong evidence.
Fifth, it was submitted that it would have been inappropriate for the second respondent, that is Mr McKendry, to interview or obtain information while the disciplinary investigation was taking place.
Sixth, on the basis of those matters, it was submitted that the leave should be granted.
I think Mr Richards' decision was correct. I accept the submission made by Mr Long, on behalf of the CMC, that it would not be possible for Mr Richards to determine the existence of unfairness, or otherwise, without knowing what the proposed evidence was, which it was sought to introduce.
The complaints made on behalf of Mr McKendry seem primarily to relate to the failure of the police to interview the LS and obtain the necessary evidence. But, to my mind, it is the failure of Mr McKendry, or those acting on his behalf, to obtain the evidence and put it before Mr Richards which is at the heart of the matter.
Mr Richards had a discretion to exercise. It was a matter for Mr McKendry to persuade him to exercise it, and I cannot find that, without material identifying what the evidence would have been, he was obliged to exercise it in the way for which Mr McKendry contends.
That is the position in relation to Mr and Mrs L, and it is a fortiori in relation to Mr Bax.
I would add that I reach that conclusion with a considerable level of disquiet. It seems to me that the evidence which could have been given by the Ls, in particular, was likely to have been most material to the outcome of the case.
It would have given context and meaning to the form of indirect evidence which was before Mr Richards from other police officers. It would have assisted the assessment of the seriousness of Mr McKendry's misconduct, but it might have assisted detrimentally to Mr McKendry.
In any event, it is not reasonable to ask Mr Richards to guess or to speculate, in the way in which I have just been doing, about that evidence.
A proper application would have put the evidence in front of him. That was not done. It is not as though that was a point unrealised by those acting on behalf of Mr McKendry. The submission made to Mr Richards on behalf of the CMC emphasised the fact that what the Ls might say was not known.
It follows, therefore, that the third type or the third aspect of the matter relied on, on behalf of Mr McKendry, is also not made out.
I regret reaching that conclusion for it seems to me there is in this case a real risk that there has been, if not a miscarriage of justice, at least a proceeding which has not, in all respects, been completely fair. I am not sitting on appeal and I am not in a position to explore the matter on its merits. As far as the issues that are raised and are capable of resolution by judicial review are concerned, the conclusion which I have indicated is, I think, the one which must be reached.
...
Costs would ordinarily follow the event, however Mr Callaghan has sought to have me apply section 49(1)(e) of the Judicial Review Act to order that his client bear only his own costs of the proceedings regardless of the outcome.
He submits that there was a bona fide interest in the ventilation of the issues raised in the litigation and that the applicant ought not to suffer a financial detriment as a result. He submits that public officials have been urged by Parliament to have regard to the needs felt by victims of crime and that whether it is necessary to have regard to the Criminal Offence Victims Act when the scope of a public official's misconduct is being measured is a question of public interest. It was not challenged by the respondents in the present case that it was proper to have regard to that Act and indeed the Police manual made some reference to it.
The question in the present case was whether the Act was properly taken into account by Mr Richards or whether he had said anything wrong as a matter of law in relation to it. These were particular issues which do not seem to me to raise any issue of general importance or of public importance.
Consequently, given that there is no suggestion that the applicant is unable to pay the costs and indeed, as Mr Long submits, that he can be expected to enjoy the assistance of the union which has already been provided to him, and that the proceedings are really for his own personal benefit, it seems to me that there is no reason to depart from the ordinary rule.
The application is dismissed with costs.
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