McKenzie v Acting Assistant Commissioner Tony Wright Queensland Police Service
[2011] QCAT 20
•17 January 2011
CITATION: McKenzie v Acting Assistant Commissioner Tony Wright Queensland Police Service [2011] QCAT 20
PARTIES: Mark McKenzie
v
Acting Assistant Commissioner Tony Wright
Queensland Police Service
APPLICATION NUMBER: OCR034-10
MATTER TYPE: Occupational regulation matters
HEARING DATE: 18 November 2010
HEARD AT: Brisbane
DECISION OF: J Browne, Member (Presiding) and P Stilgoe, Member
DELIVERED ON: 17 January 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. In respect of matter one, the respondent’s decision is confirmed.
2. In respect of the sanction imposed, the respondent’s decision is confirmed.
3. The applicant’s application is dismissed.
CATCHWORDS: Police Officers – discipline – inappropriately and forcibly detained - Rehearing by QCAT – nature of “review” and standard of proof required - Review of sanction – mitigating circumstances
Crime and Misconduct Act 2001 s 219G;
Police Service Administration Act 1990 s 1.4;
Police Service (Discipline) Regulation 1990 s 9;
Queensland Civil and Administrative Tribunal Act 2009 ss 17, 19.
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr Mark McKenzie represented by Mr C Gnech of the Queensland Police Union Solicitors Office
RESPONDENT: Queensland Police Service represented by Mr S McLeod and instructed by the Official Solicitor for the Queensland Police Service
REASONS FOR DECISION
Presiding Member Browne
Introduction
1.This is an application to review a decision by Acting Assistant Commissioner Tony Wright of the Queensland Police Service (“the respondent”) made on 2 February 2010 in relation to a disciplinary hearing conducted under the Police Service Administration Act 1990 (“PSAA”) held on 2 February 2010.
2.The respondent delivered his findings and reasons that the following disciplinary charge of misconduct against Sergeant Mark Kabrieth McKenzie (the applicant, now referred to as Senior Constable McKenzie, “SC McKenzie”) were substantiated:
Matter 1:
That on the 1st day of March 2008 at Mount Isa your conduct was improper in that you:
(a) inappropriately and forcibly detained Jane Sonya Moran
{Sections 1.4 and 7.4 Police Service Administration Act 1990; Section 9(1)(f) Police Service (Discipline) Regulations 1990}
Further and better particulars:
Investigations have identified that whilst off duty you have become involved in an incident at police accommodation located at Stanley Street, Mount Isa, where you detained Jane Sonya Moran by:oGrabbing her by the right wrist in a firm grip and struggling with her;
oForcing her face-down on the bed with your knees in her back;
oPulling her hands behind her back and handcuffing her, with Queensland Police Service handcuffs;
oTelling her she was detained for domestic violence;
oLifting her off the bed by the handcuffs, causing pain to her wrists;
oPlacing pressure around her neck with a lateral vascular neck restraint;
oForcing her to walk by pushing and twisting the handcuffs up her back.
Your actions resulted in Jane Sonya Moran sustaining injuries including a comminuted fracture to the lateral posterior margin of the right eye socket, bruising on the lower left cheek, abrasion and haematoma to the right cheek, tenderness to the right neck, tenderness to the inside of both forearms and tenderness in both wrists.
3.The Queensland Police Service (“the QPS”) having found the charge to be substantiated ordered that SC McKenzie be reduced in rank from Sergeant pay point 3.5 to Senior Constable 2.9 for a period of two (2) years effective from 2 February 2010, pursuant to section 10(e) of the Police Service (Discipline) Regulations 1990.
Appeal
4.The Queensland Civil and Administrative Tribunal (“the tribunal”) has jurisdiction to review the decision made by the respondent by virtue of section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) and section 219G of the Crime and Misconduct Act 2001.
5.The tribunal, in exercising its review jurisdiction, “must decide the review in accordance with [the QCAT Act] and the enabling Act under which the reviewable decision being reviewed was made”.[1] The nature of the review is by way of a rehearing on the evidence (original evidence) that was before the original decision maker, the respondent.[2] The tribunal is “bound to make its own decision on the evidence before it, whether or not new evidence is received”.[3]
[1] The QCAT Act s 19(a).
[2] Crime and Misconduct Act 2001 s 219H.
[3] Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 at 6. This is not a review where the principles of House v King (1965) 55 CLR 499 apply.
6.There is no new evidence before the tribunal and the parties have filed written outline of submissions and oral submissions were made at the hearing. The tribunal was also provided with the material originally placed before the respondent decision maker including photographs and a DVD “re-enactment”.
7.The decision in Aldrich v Ross[4] sets out the “approach” to be taken by the tribunal in deciding the review.[5] The tribunal does not propose to reiterate the findings of Thomas JA who gave the leading judgment. The salient findings of that decision have previously been addressed in recent decisions of this tribunal which have found there to be no inconsistency between the QCAT Act and the Crime and Misconduct Act 2001 and that the review tribunal “should make its own fresh determination”.[6]
[4] (2001) 2 Qd R 235.
[5] Comptom at 28. See the leading judgment delivered by Thomas JA at 257. See also O’Keefe v Deputy Commissioner Rynders [2010] QCAT 109.
[6] Crime & Misconduct Commission v Chapman at 12.
8.The requisite standard of proof to be applied by the tribunal being the civil standard on the balance of probabilities is set out in the decision of Briginshaw v Briginshaw & Anor.[7] These proceedings are serious in nature by virtue of the allegations and consequences which may follow a positive finding, the tribunal must therefore be reasonably satisfied based on the evidence where “clear or cogent or strict proof is necessary”.[8] In Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors[9] the court held that the tribunal is not required to consider whether “evidence was capable of satisfying the criminal standard of proof…[but] whether it was open to the tribunal on the probative evidence to not be satisfied of the particular alleged applying the civil standard of proof”.[10]
[7] (1938) 60 CLR 336. See Dickson J at 361.
[8] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd 170 (1992) 67 ALJR 170 (Mason CJ, Brennan, Deane and Gaudron JJ). See Rejfek v McElroy & Anor (1964-5) 112 CLR 517, 521 (Barwick CJ, Kitto, Taylor, Menzies, Windeyer JJ). See also Conder v Byrne (2004) QSC 82.
[9] [2009] QSC 409.
[10] Above at [66] per Appelgarth J.
9.The tribunal also recognises the observations of the Honourable Justice Thomas and Senior Member Booth in an earlier decision of this tribunal in relation to the procedural aspects of these types of disciplinary proceedings in particular that there are no witnesses seen or heard to give evidence and the tribunal is referred to material before the original decision maker which has been assembled by an investigator with power to require members of the police service to answer questions.[11] Similarly, the particulars of the disciplinary charge in these proceedings are serious in nature and the tribunal is required to draw inferences from the material which includes interviews undertaken by members of the police service having been given a formal direction to participate.
[11] Crime & Misconduct Commission v Chapman at 15.
Matter One
10.Matter one relates to conduct occurring on 1 March 2008 between SC McKenzie and another serving police officer at the time, Constable Jane Moran (“Ms Moran”). SC McKenzie does not deny that an incident took place however he does dispute some of the facts - in particular the behaviour of Ms Moran - which justified his actions and her injuries arising from the incident. Ms Moran reported the incident at the Mount Isa watch house in the early morning on 1 March 2008. Photographs were taken and interviews undertaken including a formal disciplinary interview with SC McKenzie under direction at approximately 7.55am on 1 March 2008, he having refused to participate in any criminal investigation.[12]
[12] Pursuant to section 4.9 of the PSAA and 18.2.4.4.9 of the HRM Manual. A failure to comply with a lawful direction is grounds for disciplinary action.
11.SC McKenzie and Ms Moran had a friendly relationship which commenced shortly after Ms Moran moved into the police residence units in Mt Isa in 2007. SC McKenzie lived in one of the units which adjoined Ms Moran’s unit where she lived with her 13 year old daughter. SC McKenzie also had children who would play with Ms Moran’s daughter.
12.A sexual relationship developed between the neighbours in December 2007 until it ended for reasons stated by SC McKenzie as he became aware that Ms Moran was “mentally ill”.[13] SC McKenzie describes the relationship during his interview with Inspector Kidd :
“…Um now I haven’t handled the whole thing as, as well as I could have obviously. Um since then and to now, to this most recent incident she’s been, she, she swings between aggressive, passive and out and out sexual demon and I don’t have the door locked at my house when I’m home…And um certain occasions she’s let herself in and we’ve had sex. And um and the next day it’s like it’s never happened or anyway…she’s said to me when she’s had a big blow up she says the, she said the words the medication fucks with my head and I don’t know what I’m doing. Again these are like mental health concerns.”[14]
[13] Applicant’s Outline of Submissions, para 11.
[14] Section 21 material (Exhibit 1), Interview with Inspector Kidd p 312 line 380.
13.SC McKenzie states that he has been concerned for his safety prior to the incident and had to lock his door which is something he does not do.[15] Notwithstanding his concerns about Ms Moran, SC McKenzie continued to “maintain a position of support” however he did communicate his concerns about her mental health to Inspector Kidd on 4 February 2008.[16] SC McKenzie also communicated his concerns to Ms Moran about her daughter who he believed was having an inappropriate relationship with an adult female. Prior to the incident on 1 March 2008, Ms Moran exchanged several text messages with SC McKenzie requesting that his daughters, who apparently witnessed inappropriate behaviour involving Ms Moran’s daughter, provide written statements. SC McKenzie refused to allow his daughters to become involved. The issues concerning Ms Moran’s daughter were clearly the catalyst for the events which took place on 1 March 2008.
[15] Above p 356 line 620.
[16] Above, Response/Submissions of the Applicant, p 11 (para 35).
14.The night before the incident Ms Moran went to SC McKenzie’s other place of work (United Taxis Depot, Mount Isa) to request he speak to her and a conversation took place about Ms Moran’s intention to make a complaint about the issues concerning her daughter. During the conversation SC McKenzie states that Ms Moran disclosed to him that she had resumed a sexual relationship with another man. SC McKenzie invited her to speak to him after work at approximately 2.00am when he returned home.[17] SC McKenzie firstly went to Ms Moran’s unit and found her asleep on the couch so he returned to his unit, got changed and got into bed and fell asleep. During the disciplinary interview he states:
“Two o’clock I finished. I go straight home, um go to her place [sic] I didn’t see her, she’s actually asleep [sic] walk in that way, she’s asleep so I leave her…”[18]
[17] Above, p 322 line 700. Ms Moran states in her interview that SC McKenzie raised the issue of her daughter and he had indicated in a text message that he would “talk about it when he got home” p 106.
[18] Above, p 323 line 718. SC McKenzie states he had drunk two (2) cans of “Johnnie Walker pre-mix” between 6.00pm and 8.00pm (p360).
15.However in the DVD re-enactment and SC McKenzie’s Response/Submissions filed in the disciplinary proceedings he states:
“..I apologised for waking her and told her not to worry about it and go back to sleep”.[19]
[19] Above p 13 para 50.
16.SC McKenzie claims he was woken up by Ms Moran “sitting on the side of the bed talking to him”.[20] He does not dispute the possibility that he invited her inside his flat and bedroom as he has been told that he talks in his sleep when he is “very tired” and would not “be surprised if [he] had actually invited her in”.[21]
[20] Above.
[21] Above p 14 para 52.
17.The lighting in the bedroom was according to SC McKenzie “ambient” as a result of the bedroom door being open “a couple of inches or something, [Ms Moran] did not shut [the door] properly” and the light was on in the lounge room.[22] SC McKenzie during his interview with Inspector Kidd states:
McKenzie: …between twenty and thirty percent lighting in the room…there was enough light for me to be able to see her eyes clearly, the colour of her skin, um her actions, um, ah it would be possible to read if you strained your eyes.[23]
[22] Above, p 328 line 870.
[23] Above p 346 line 320.
18.SC McKenzie describes the setting:
“…She gets quite animated, her face is quite angry and upset. I, I haven’t seen this particular kind of anger before, I’ve seen upsetness before”.[24]
[24] Above.
19.Ms Moran recalls a slightly different version in that she claims she was woken by her dog barking and then SC McKenzie invited her to talk in his unit. She then went to his unit some minutes later and was told by SC McKenzie that he was in the bedroom. She entered the unit, turned on the lounge room light and sat on the end of the bed.[25]
[25] Above p 108. In a subsequent interview under direction Ms Moran states that SC McKenzie invited her to lay on the bed with him p 181 line 734.
20.The conversation that took place between SC McKenzie and Ms Moran related to the issues concerning Ms Moran’s daughter in particular SC McKenzie’s refusal to allow his daughters to provide statements.[26] SC McKenzie states his version during the interview with Inspector Kidd – Ms Moran “again” raises her fists, SC McKenzie says “get the fuck out of my house”, Ms Moran starts yelling and screaming at SC McKenzie, SC McKenzie says “get the fuck out”.[27]
[26] Above, p 329.
[27] Above p 330.
21.At some point during the conversation SC McKenzie claims that he became concerned for his safety because he was aware a knife was on the drawers near his bed and that it was within reach of Ms Moran.[28] The explanation for the knife being in the bedroom is that SC McKenzie plays the bagpipes and uses the knife to cut his bagpipe strings:
“I had been playing the bagpipes the last couple of days and there’s a large knife that I’ve got [sic] I use for my bagpipes cutting string and shit like that. And it’s sitting on the, right there on the chest of drawers [sic] with the handle just poking over the edge, protruding over the edge [sic]”.[29]
[28] Outline of Submissions by the applicant, p 3 para 14. Section 21 material, p 344 line 255, SC McKenzie states during the interview with Inspector Kidd that “her hand, left hand went towards the knife” and he could not remove it without making it obvious that he was scared and she was going to “stab” him with it.
[29] Section 21 material, p 326 line 810.
22.SC McKenzie describes the knife during his interview with Inspector Kidd:
“…a large kitchen knife that’s ruined, you can’t use it for food. I left it in the water and it’s quite, it’s stainless and it’s got rusty. It’s quite sharp…you could probably use it to carve”.[30]
[30] Above p 325 line 790.
and
“…the chest of drawers are a dark brown colour, the knife still has a silver colour of the blade…it’s a huge knife…you could probably use it to carve. It’s – if I hadn’t ruined it…”.[31]
and
“A big one with a blade about ten or twelve inches long”.[32]
[31] Above p 348 line 390.
[32] Above p 343 line 240. Also described as being a “31 blade” in size (p 348 line 400) and a “small black flat plastic knife” p 349 line 410. The knife “lives” in SC McKenzie’s bedroom (p 348 line 3750).
23.SC McKenzie claims that he has a particular “aversion” to knives, was in fear for his safety and restrained Ms Moran to defend himself.[33] In particular he thought Ms Moran would “get the knife and stick it in his chest” and as he was lying down he had nowhere to go.[34] Furthermore, SC McKenzie states in the DVD re-enactment when describing the position of the knife that “due to [his] previous observations of [Ms Moran’s] mental state” he had concerns. He also states that he did not get hurt.
[33] Above p 345 line 285 and see Applicant’s Outline of Submissions, p 3.
[34] Above p 345 line 285.
24.Ms Moran during an interview given under direction denies any knowledge of a knife and denies that she has ever seen a knife in the room before.[35] She also claims that she was positioned on the bed “nowhere near the dresser” where SC McKenzie claims the knife was placed.[36]
[35] Above p 193 and 194.
[36] Above p 213 line 70.
25.SC McKenzie used handcuffs during the restraint and he removed Ms Moran from his unit. His intention after the restraint was to “process [Ms Moran] in some legal or mental way”.[37] SC McKenzie believed that handcuffs were the least amount of force he could use to minimise injury to Ms Moran.[38] Ms Moran did however suffer injuries including facial injuries and an injury to her lips, although the extent of the injuries related to the incident, in particular the facial injuries, are disputed by SC McKenzie. SC McKenzie describes the incident during his interview with Inspector Kidd:
[37] Above p 350 line 455.
[38] Above p 356 line 630. SC McKenzie states that he keeps his handcuffs in his underwear drawer together with his badge, keys, wallet and phone. He wears his uniform daily together with his handcuffs (p 357, p 358) – also stated by SC McKenzie during the DVD re-enactment.
McKenzie:I’ve told her to get out. She, now this is the, this is the really ah, she half stands and she’s, the knife’s in full view and her hand snakes over towards that bloody knife and she’s raising her fist. Now, I, in fairness to her she didn’t grab it. I don’t know if she’s going to grab it but I was completely alarmed and in fear of G-B-H or death if she got hold of it. So I immediately just restrained her. I grabbed her in some way, oh I think she was – her, her, her – I’m laying in the bed, I’m sitting, half sitting up by this stage, her chest is pointing towards the chest of drawers. Um I’d, I, I mean it’s not that clear.
Kidd: Mmm.
McKenzie:But I’ve done something like thrown me arm around her and I think I because I went through the Academy when we did the lateral vascular neck restraint I, I actually realised I was actually going for a neck restraint and stopped and wrapped her arms up…I did notice later she had a, a, a sore lip like a fat lip, sore lip. And um I basically bundled her up, that’s when, that’s when all hells broken lose and there’s fists and kicking, and there’s screaming and there’s flailing of fists and feet in all directions. I’ve ah flipped her on the bed, I’ve got one hand behind her back in a reverse wrist lock. She’s still thrashing and kicking and fighting and carrying on and I didn’t what – I don’t know what I was going to do.
Kidd:Mmm.
McKenzie:I don’t know what I was going to do with her. Like every little, every facet of everything I had learnt in [sic]. I’m sexually involved, I’ve restrained her, she’s attacked me, it’s, is it [sic], what is it, all these legal issues -
Kidd:Mmm.
McKenzie:- are going through my mind yeah for, for some stupid reason. And then I’ve realised in the top drawer of my drawers are my handcuffs that I wear to work, to and from work everyday. So I grab ‘em and I’ve handcuffed her, held her like for a short period of time. I’ve got a cordless phone um on the drawers next to the bed. I grabbed it, dialled the station number, I’ve blurted, I’ve screamed into it get a, get a car code two here now. And ah no-one came. I’ve since looked at it and it looks like ….the call didn’t go through.
Kidd:Yep.
McKenzie:It, it, it seems the call didn’t go through. Once the cuffs were on and I’ve called for backup oh and bearing in mind I’ve got Sergeant Richard Scholl directly across from me but he doesn’t hear anything and I, and I know where he, I, I expected him to be [sic] because he was trying to get me to go to the helicopter fundraiser with a free ticket. There was a helicopter fundraising -
…
McKenzie:…once she was handcuffed it just seemed like everything, she just melted, and it just all stopped. I mean she completely flipped to being nice and um, not nice um just upset.
…
McKenzie:…the complete demeanour changed to passive, upset, crying kind of behaviour.[39]
[39] Above p 331 to 334, 337. Also at page 349 line 430. SC McKenzie provides further explanation as to the use of handcuffs – he states that Ms Moran “kept trying to assault me…by swinging punches towards my face and body”. He refers to Ms Moran “thrashing around” prior to using handcuffs as a restraint (p 356 line 630).
26.SC McKenzie states that he was “holding the handcuffs and she’s cuffed behind the back, got her shoes, put her out the front door”.[40] He then removes the handcuffs and tells Ms Moran to leave. SC McKenzie claims he telephoned the watch house in an attempt to speak to the duty Sergeant (Sergeant Palmer) having left a message for him, to ensure that there was no access to any firearms.[41]
[40] Above p 337 line 60.
[41] Above p340 line 135.
27.Ms Moran does not dispute the fact that she was “pumping [her] fist up and down in the rhythm of what [she] was saying” but denies that she was threatening to hit SC McKenzie or that she struck him.[42] However in a further interview with Inspector Kidd she says “I pushed back at him, he’s back at me, and we’ve got into a fight”.[43] In her initial interview she states:[44]
[42] Above p 109 and see p 148 line 790.
[43] Above p 131. Ms Moran also states that SC McKenzie pushed her onto her stomach, pulled her hands up behind her back, knelt on her and handcuffed her, p 131. There is also reference to a “scuffle” in the interview under direction, p 189 line 981.
[44] Above p 131 line 265.
He then said, “Don’t threaten me or I’ll fuckin’ snap you”.
I then leant into him and said, “Don’t threaten me, you don’t fuckin’ scare me, I’m just trying to sort this out with [my daughter]”.
Mark then grabbed my right wrist in a firm grip. I tried to pull my arm away, however he held onto my wrist.
I said, “What the fuck are you doing, I’m not threatening you, I just want to get this sorted out with [my daughter]”.
I continued to pull my arm out of his grip. I struggled against him. I don’t recall the exact events as it all happened so quickly and Mark ended up with me face down on the bed with his knees in my back. He pulled my hands up behind my back.
I screamed at him, “What the fuck are you doing, this is fucking ridiculous”.
The next thing I remember was hearing the click of handcuffs when they get pushed through the locking ratchet.
…
He then told me I was detained for domestic violence.[45]
[45] Above pages 110, 111. In a subsequent interview under direction Ms Moran states that she raised her right fist in response to SC McKenzie’s actions, p 187. In the interview under direction Ms Moran refers to a similar series of events – lying on the bed on her stomach, hands behind back, saying “you are detained for domestic violence”, and handcuffing her, p 191.
28.Ms Moran heard SC McKenzie dial numbers on a phone and requests a car (code two). She claims he pulled her off the bed by the handcuffs with no support on her arms to lift her and felt immediate pain in her wrists (she describes this as ‘pain compliance’). He then placed his arm around under her chin (she describes this as the ‘lateral vascular neck restraint’). She requested her handcuffs be removed and was forced to walk to the door while SC McKenzie was holding the handcuffs maintaining “pain compliance” and his arm “squeezing” on her neck.[46] She was walked to the front door and then he removed the handcuffs at which time she asked for her shoes which were left in the bedroom.
[46] Above p 131 line 280, p 111. Ms Moran confirms similar events in her interview given under direction p 196 – SC McKenzie pushed her, his arm around her neck and holding the handcuffs taken her to the door. She also states she requested the handcuffs be removed “a thousand times” p 199 line 1275.
29.There is conflicting evidence about the shoes in that SC McKenzie stated that he retrieved Ms Moran’s shoes while she remained handcuffed prior to escorting her to the front door. Ms Moran provides a different version during her initial interview with Inspector Kidd but does not mention the “shoes” in her further interview. She states:
Mark walked over and got [my shoes] and brought them back and dropped them in front of me.
I said “what the fuck are you doing?”.
He said, “Get the fuck out of my house, I don’t need your psycho bitch behaviour. No woman threatens to hit me and get away with it”.
He then said, “One of us is going to have to move, one of us will move, they’re going to have to decide whether they want a Sergeant in prosecutions or a Constable”.
I said, “Well have a look at my face, look what you’ve just done to me.I could still feel that my lip was swollen and bleeding. There was a lot of pain at the injury where I could feel it swelling.[47][47] Above p 112.
30.Ms Moran states that she was confused and embarrassed and needed to talk to someone so she drove around before making the decision to speak to Inspector McGann at the watch house. Inspector McGann spoke to Sergeant Palmer and at some point Inspector Kidd was notified. Photographs were taken of Ms Moran before she returned home and provided a statement later that day.
31.Ms Moran saw her general practitioner on 1 March 2008. The medical report of Doctor Power dated 23 July 2008 refers to facial injuries:
-Pen-orbital oedema around the right eye and over right zygoma area and to the outer corner of the right eye.
-Bruising on the lower left cheek.
-Abrasion and haematoma, buccal aspect of right lower lip.
-Haematoma, right cheek lateral, more superficial.
-Right neck tender over trapezius muscle.
Both distal forearms and wrists were tender circumferentially (where lifted with handcuffs).
32.There is reference to the haematoma over the right eye continuing to be painful after four (4) weeks and an x-ray showed that no fracture. There is however a further examination of Ms Moran’s injuries by way of a CT Scan of the facial bones on 6 June 2008 which reveals “a comminuted fracture in the lateral posterior margin of the right orbit. There is no significant displacement…”.[48]
[48] Above p 122.
Statement of Inspector Kidd
33.Inspector Kidd provided a statement which corroborates SC McKenzie’s evidence that he reported his concerns about Ms Moran’s behaviour on 4 February 2008. Inspector Kidd advised SC Mckenzie to avoid becoming further involved with Ms Moran if he had concerns.
34.Inspector Kidd also attended the watch house in the early morning on 1 March 2008 and saw Ms Moran dressed in plain clothes and that she “had blood on her lip, bruising to the face and red marks around both wrists”.[49] He recorded an interview with Ms Moran and arranged for photographs to be taken before conducting further interviews. He also inspected SC McKenzie’s premises and confirmed that a knife was found inside a rubbish bin located in a bedroom beside SC McKenzie’s bedroom.
[49] Above p 118 para 8.
Statement of Senior Constable McGann
35.SC McGann participated in an interview under direction on 2 March 2008. She corroborates Ms Moran’s evidence that she went to the watch house in the early morning on 1 March 2008 and told her the circumstances surrounding the incident in particular stating that “Macca just assaulted her and handcuffed her”.[50] SC McGann also comments in relation to Ms Moran’s injuries:
“She was sitting on the other side of the table from me I observed both wrists were extremely red with grazes like sort of broken skin on them. Um her neck was quite red on the right side, on the right side of her neck. She had um blood and a busted lip on the right side, um like a little blood, broken blood vessel on her right eye and a little bit of purpleness just under her right eye. And I could see some purpleness coming through her right cheek at that stage”.[51]
[50] Above p 224 line 195.
[51] Above o 226 line 260. SC McGann also mentions the facial injuries at page 228 and states she observed further bruising to the left hand side of her cheek some hours later, p 228.
Other Relevant Statements
36.Constable Dean was also stationed at the Mount Isa station in the early morning of 1 March 2008 and confirms that she received two (2) telephone calls from SC McKenzie at around 3.30am. SC Mckenzie requested that Sergeant Palmer call him and also requested during his second call that no access be given to any off-duty officer to the gun safe.
37.Sergeant Scholl lived opposite SC McKenzie at the time of the incident. He participated in an interview and spoke to SC Mckenzie in the late morning on 1 March 2008. SC McKenzie told him Ms Moran had “gone for a knife which was sitting on the bedside table. He has then grabbed her and restrained her and taken her out of the premises”.[52] He also refers to a discussion he had with SC McKenzie some months prior to the incident during which time SC McKenzie told him of his concerns for Ms Moran’s mental stability in particular an incident that previously took place at his other workplace. Sergeant Scholl states:
“…I think his words were I feel like I’m taking advantage of a spoon….I think it was a throwaway line that he, that he, that he just said but it was, it stuck in mind as there was, that there wasn’t something right and I told him well stop doing it…”.[53]
[52] Above p 250.
[53] Above p 257.
38.Sergeant Scholl also mentions his concerns for SC McKenzie in relation to the extra hours of work undertaken by him as part of his work as a prosecutor and in his second job at the taxi depot and that SC McKenzie may not be getting enough sleep.[54]
[54] Above p 262.
DVD Re-enactment
39.Both SC McKenzie and Ms Moran participated in a DVD re-enactment inside the bedroom where the incident took place. SC McKenzie positions himself on the bed to demonstrate where he was lying and indicates where Ms Moran was seated at the end of the bed. SC McKenzie also shows the location of the knife which he claims was positioned on the top of the bedside drawers at the time of the incident.
40.Ms Moran demonstrates where she was seated on the end of the bed and the position she was lying in after SC McKenzie made attempts to restrain her on the bed.
41.The DVD is essentially a reiteration of the interviews given by SC McKenzie and Ms Moran as to their respective versions of the incident. However Ms Moran does provide further information during the DVD re-enactment that she was not wearing her prescription glasses at the time of the incident.
Applicant’s Submissions
42.SC McKenzie has outlined the issues to be addressed by the tribunal in his application.[55] He maintains that there was a knife beside his bed and that he used reasonable force to detain Ms Moran who he believed was going to stab him at the time. It is Mr Gnech’s submission that SC McKenzie had a reasonable belief that the knife was there and had an apprehension of the situation. The finding to be made by the tribunal must be subjective that is what SC McKenzie believed at the time. The respondent bears the onus of proving the knife was not present and that Ms Moran’s version that she had no knowledge of the knife and was not wearing her prescription glasses is “insufficient”.
[55] Filed 12 February 2010.
43.Mr Gnech argues that notwithstanding SC McKenzie’s belief that Ms Moran was reaching for the knife at the time, his actions were still justified by virtue of the powers under the Criminal Code Act 1899 to remove her from the premises.[56] It is SC McKenzie’s submission that the arrest was lawful and that reasonable force was applied. Furthermore that the tribunal must find the arrest or detention was unlawful to find that Ms Moran was inappropriately detained. It is conceded that at the time of the incident SC McKenzie was of the belief that the Domestic Violence and Family Protection Act 1989 applied on the basis that the relationship was an “intimate personal relationship” as per the wording in section 12A. However SC McKenzie now argues that the actions of Ms Moran on her own admission at the time of the incident authorised him to “use force to remove [her] from the premises” pursuant to section 267 of the Criminal Code. Furthermore SC McKenzie argues that pursuant to section 277(2) of the Criminal Code Ms Moran’s behaviour again on her own admission, would authorise him to take steps to remove her from the premises. In relation to SC McKenzie’s decision to release Ms Moran upon removing her from the premises, Mr Gnech submitted that the duty to discontinue an arrest under sections 376 and 377 of the Police Powers and Responsibilities Act 2000 has been discharged and, in any event, the decision to release Ms Moran is not subject to a disciplinary charge.[57]
[56] Outline of Submissions for the Applicant p 6 para 30.
[57] Above p 4.
44.Mr Gnech also argues that the material before the tribunal does not satisfy “inappropriately” as per the wording of the charge (matter one). He argues that SC McKenzie had the authority to use reasonable force to restrain Ms Moran and the force used did not exceed grievous bodily harm. In relation to the use of handcuffs, Mr Gnech submits that SC McKenzie has called himself to duty when using the words “arrest” and the use of handcuffs was not inappropriate in the circumstances. Mr Gnech also refers to the evidence given by SC McKenzie and his attempt to telephone for police backup. He argues that the use of tactical holds by SC McKenzie was also necessary as a result of Ms Moran’s attempts to struggle. If the tribunal accepts the evidence of Ms Moran that she had calmed down then the application of extra force by SC McKenzie on Mr Gnech’s submission, would be deemed unreasonable. However, Mr Gnech argues that on the version given by SC McKenzie, the use of handcuffs was the reason Ms Moran calmed down.
45.In written submissions, SC McKenzie argues that the photographs do not show any “significant injuries to the hands or wrists of Moran” .[58] In relation to Ms Moran’s injuries to her lip and wrists, SC McKenzie argues that these were a result of Ms Moran’s resistance to being removed from the premises and that her behaviour based on her own version was disorderly.[59] SC McKenzie disputes that the fracture to Ms Moran’s cheek is related to the incident on the basis that it was discovered several months after the incident, there is only Ms Moran’s evidence to link the injury to the incident and the evidence does not suggest force was applied to the face and cheek in such a “nature to fracture her cheek”.[60]
[58] Above p 4 para 16.
[59] Above p 5 para 26.
[60] Above p 6 para 27.
46.During oral submissions Mr Gnech argued that the tribunal should not be satisfied to the required standard that the fracture is the result of the force applied: if the tribunal finds that the fracture is not connected then it must also find that the degree of force applied was reasonable. He argues there was no evidence alluding to an injury to the extent of a fracture. Such an injury, on Mr Gnech’s submission, would be consistent with singular blows of force to the face. Furthermore, he says that SC McKenzie was denied the opportunity to respond to the allegation of a fracture as this was not made known to him until the disciplinary hearing was scheduled to take place.
Respondent’s Submissions
47.Mr McLeod during oral submissions refers the tribunal to the observations made by SC McGann in relation to Ms Moran’s facial injuries. It is Mr McLeod’s submission that the inference to be drawn from the material and the medical evidence is that the fracture is a result of the force applied by SC McKenzie during the incident. There is no requirement to be satisfied according to a “sliding scale” and it is simply open to the tribunal to be satisfied having regard to what is alleged and inferences can be clearly drawn from the material.
48.Mr McLeod argues that the tribunal should have regard to the circumstances surrounding the incident and what led to the injuries: it is not necessary to make a finding that the arrest was unlawful to satisfy the elements of the charge and “ inappropriately” should not be elevated to a criminal standard. These are disciplinary proceedings and Mr McLeod submits that the action taken by SC McKenzie, if found to be lawful, can still be inappropriate.
49.In relation to whether the arrest was lawful Mr McLeod argues that, if the tribunal finds the arrest was not lawful, then it must find that SC McKenzie remained off duty and the off duty conduct amounted to misconduct. In this regard Mr McLeod refers to SC McKenzie’s version of the incident and that he did not disclose he was lawfully exercising his powers and there was therefore no lawful basis for the arrest.[61]
[61] Section 21 material, pages 350 and 355 – SC McKenzie states during the interview on page 350 that “I can’t see the, the detention being justified because it’s not D-V…” and at page 355 SC McKenzie refers to there being no basis for the detention under the Domestic Violence and Family Protection Act 1989.
50.It is Mr McLeod’s submission that the respondent decision maker in the findings and reasons preferred the evidence of Ms Moran to that of SC McKenzie which was clearly inconsistent. In written submissions Mr McLeod refers to the conflicting evidence about the presence of a knife and SC McKenzie’s inconsistent evidence about the application of a neck restraint. The tribunal should, having regard to the totality of the evidence, come to the same conclusions – in written submissions, Mr McLeod refers to the lighting in the room (low light), Ms Moran denies knowledge of the knife and her positioning on the bed placed her out of reach of the knife. Should the tribunal accept SC McKenzie’s version that he formed a reasonable apprehension that Ms Moran was going to grab the knife then the tribunal must determine whether the degree of force used was reasonable. Mr McLeod submits that the actions of SC McKenzie were totally inappropriate and unreasonable.
Tribunal Findings
51.SC Mckenzie on his own admission extended an invitation to Ms Moran to speak to him at approximately 2.00am on 1 March 2008. SC McKenzie has given conflicting evidence about whether he spoke to Ms Moran in her unit at approximately 2.00am prior to returning to his own unit and positioning himself in bed only to be woken by Ms Moran sitting on the end of his bed. There is evidence given by SC McKenzie that he finished work, went to Ms Moran’s unit, saw she was asleep and then went home. There is evidence that he may or may not have spoken to Ms Moran prior to the incident as he has been told that he “talks in his sleep”. The tribunal does not make any finding as to whether SC McKenzie or Ms Moran’s version should be preferred and simply finds that SC McKenzie invited Ms Moran to speak to him in his unit on 1 March 2008 at approximately 2.00am and that she entered the unit and sat on the end of his bed at which time a conversation took place.
52.The tribunal does not accept Mr Gnech’s submission on behalf of SC McKenzie that to satisfy the wording of the charge in particular “inappropriately” the tribunal must find the arrest was unlawful. It was determined in a decision of the former misconduct tribunal that it was open to those responsible for drafting the charge to particularise it in a certain way.[62] It is not the role of this tribunal to import meaning into the words of the charge such as “lawfully” in the context of “inappropriately”. The tribunal must however be satisfied to the requisite standard on the balance of probabilities that SC McKenzie inappropriately and forcibly detained Ms Moran.
[62] Crime and Misconduct Commission v Nikola & Anor TA 1 of 2007 and see Melling v O’Reilly TA 6 of 1991.
53.Notwithstanding the tribunal’s finding that it need only determine whether SC McKenzie inappropriately and forcibly detained Ms Moran, the tribunal does not accept SC McKenzie’s submission that he exercised his lawful powers of arrest during the initial restraint of Ms Moran. The material, in particular SC McKenzie’s own evidence has been considered: SC McKenzie makes reference during the disciplinary interview to the arrest not being justified on the basis that there was no “intimate personal relationship” under the Domestic and Family Violence Protection Act 1989 and makes no mention of his lawful powers, if any. The tribunal finds that SC Mckenzie was off duty at the time of the incident and the nature of the conduct if substantiated would clearly constitute misconduct having regard to all of the circumstances and the injuries allegedly sustained by Ms Moran as a result of SC McKenzie’s actions.[63]
[63] See Abel v McGibbon TA 9/02 and Orme v Atkinson referred to in Abel and Fuller v McCall TA 3/07 (decisions of the former Misconduct Tribunal). Also see Henry v Ryan [1963] Tas SR 90 – “…off duty conduct as to affect his fitness to discharge his duties as a police officer…” (at 91).
54.In relation to whether SC McKenzie’s off-duty conduct in restraining Ms Moran was inappropriate, the tribunal has considered the submission made by Mr Gnech that SC McKenzie held a reasonable belief that Ms Moran was going to grab a knife located on his bedside table and took action to defend himself. The tribunal has carefully worked through the matrix of factual issues in particular the conflicting versions given by SC McKenzie and Ms Moran as to the events leading up to the time when SC McKenzie took steps to avoid being “stabbed”, as alleged. The factual issues to be considered include: SC McKenzie’s description of the knife; the lighting in the room; Ms Moran’s own version of events including her position on the bed (location), she was not wearing prescription glasses and had no knowledge of the knife. Regardless of whether or not a knife was positioned on the bedside table and whether or not SC McKenzie held a reasonable belief that Ms Moran knew it was there and was going to grab it, the action taken by SC Mckenzie was inappropriate and the force applied excessive. The tribunal has made this finding based on the material in particular the evidence given by SC Mckenzie and Ms Moran, the inferences that can be drawn from the medical evidence and the evidence of SC McGann and Inspector Kidd as to their observations of Ms Moran’s injuries.
55.SC McKenzie on his own admission is unclear as to whether Ms Moran was going to “grab” the knife. He states “… in fairness to her she didn’t grab it. I don’t know if she’s going to grab it but I was completely alarmed (Emphasis added)”. SC Mckenzie may have been alarmed as to the situation however he then took the following steps to detain Ms Moran – grabbed her “in some way”, applied a lateral vascular neck restraint, stopped the restraint and “wrapped up her arms”, “bundled her up”. SC Mckenzie then states that at this point “all hell’s broken loose” so he took the following steps to further restrain Ms Moran – flipped her on the bed, pulled her hands behind her back, applied reverse wrist lock. He states there is more thrashing and kicking so he then applied handcuffs. Ms Moran on her own admission states that she “pushed back” and there was a fight. However, she denies any knowledge of a knife and denies that she hit SC Mckenzie. After applying handcuffs, SC McKenzie then walked Ms Moran while applying pressure around her neck (restraint) and twisting the handcuffs behind her back (pain compliance). The tribunal is satisfied to the required standard that the action taken by SC McKenzie was clearly excessive and inappropriate and that the particulars of the charge (matter one) have been satisfied having regard to the material - SC McKenzie does not dispute the action taken by him to detain Ms Moran and on his own admission was in doubt at the time as to whether Ms Moran was going to grab the knife.
56.In relation to Mr Gnech’s submission that SC Mckenzie placed himself on duty when using the words “arrest” at the time of applying handcuffs, the tribunal finds that SC McKenzie did at this point in time place himself on duty and this is evident from his actions; he applied handcuffs, used the words “arrest” and “telephoned for backup”. Regardless of whether SC McKenzie placed himself on duty and exercised as argued by him lawful powers of arrest under the Criminal Code the tribunal finds that the action taken by him after applying handcuffs was excessive and inappropriate: SC McKenzie says Ms Moran calmed down once handcuffs were applied however Ms Moran gave evidence stating that SC McKenzie continued to apply tactical hold methods to her neck and pain compliance methods to her wrists while escorting her to the front door. The tribunal has no reason to question the veracity of Ms Moran’s evidence in relation to SC McKenzie’s actions after he applied handcuffs. Ms Moran has consistently maintained that she raised her fists but did not strike SC McKenzie and that she “tried to pull [her] arm away however he held onto [her] wrist. She reported the incident in the early morning of 1 March 2008 to another police officer and maintained that she was assaulted and handcuffed. The medical report dated 23 July 2008 also notes Ms Moran’s assertions that she was assaulted. [64] SC McKenzie says he applied handcuffs, told Ms Moran she was under arrest and called for police back up (assistance) because Ms Moran “attacked [him]” yet he retrieved her shoes and escorted her to the door, then removed her handcuffs. SC McKenzie made no further attempt to call for police assistance (his call not responded to), neither did he follow through with his intention to arrest and “process her in some legal or mental way” as stated by him.
[64] Above p 121. The report states “-Assaulted by fellow police officer – grabbed her, threw her on a bed and handcuffed the patient with arm around patient in neck restraint – she was grabbed/lifted by her handcuffed hands, receiving facial injuries in scuffle….”.
57.The tribunal accepts the evidence of Ms Moran that SC McKenzie continued to maintain neck restraint and pain compliance methods of restraint after handcuffs were applied and that such conduct was inappropriate having regard to the evidence of Ms Moran that she requested her handcuffs be removed and the evidence of SC McKenzie that Ms Moran was compliant once handcuffs were applied, although SC Mckenzie alleges the reason for Ms Moran’s compliance was because of the application of handcuffs.
58.The tribunal does not accept Mr Gnech’s submission that the photographs included in the material before the tribunal do not show any significant injuries. Furthermore the submission that there is no evidence alluding to an injury to the extent of a fracture is also rejected. Ms Moran on her admission is unsure as to how the injuries happened however she has consistently maintained that force was applied to her wrists (use of “firm grip” and handcuffs applied with the application of a “pain compliance method”) and neck (vascular neck restraint). She has also consistently maintained that she had injuries to her face, eye, lip, neck and wrists resulting from the incident.[65] This is evident from the material: Ms Moran’s interview with Inspector Kidd, the medical reports dated 23 July 2008 and 6 June 2008, and the evidence of Inspector Kidd and SC McGann, in particular their observations of Ms Moran’s injuries.[66]
[65] Section 21 material p 139 line 505. Ms Moran also states that she had not been drinking any alcohol prior to the incident (p 147).
[66] See p 138 line 475 - Ms Moran states “-right eye is really sore…” and p 121 (report).
59.The tribunal agrees with the submission made by Mr McLeod that, in having regard to the totality of the evidence, the actions of SC McKenzie were totally inappropriate and excessive. Furthermore, the degree of force used by SC McKenzie was excessive having regard to the injuries sustained by Ms Moran. There is sufficient evidence before the tribunal to be satisfied to the requisite standard that Ms Moran sustained injuries to her lip, face, neck, forearms and wrists as a result of force applied by SC McKenzie on 1 March 2008. In particular the observations of SC McGann and Inspector Kidd and the medical evidence are sufficient to satisfy the tribunal to the requisite standard that the force used by SC McKenzie during the incident was excessive and that Ms Moran sustained injuries including a comminuted fracture in the lateral posterior margin of the right orbit.
60.The tribunal makes the following findings:
1.On 1 March 2008 SC McKenzie in the course of detaining Ms Moran, applied force as particularised in the charge (matter one);
2.The application of force by SC McKenzie caused injury to Ms Moran including a comminuted fracture to the lateral posterior margin of the right eye socket, bruising and abrasion to the face, tenderness to the neck and tenderness to both forearms and wrists;
3.The application of such force was inappropriate and excessive and was not authorised, justified or excused by law.
Sanction
61.SC McKenzie seeks a review in respect of the sanction imposed on the basis that the sanction was manifestly excessive. Mr Gnech during oral submissions argued that a positive finding by the tribunal in relation to the fracture should not impact on the sanction on the basis that there is no evidence of a direct blow or attempt to deliberately injure. It is Mr Gnech’s submission that the purpose of discipline is not to punish but to maintain confidence and to ensure that the police service can function by protecting its reputation. Mr Gnech submits that when looked at in its proper context the effect of the sanction has a financial detriment of a $33,697.00 fine as it will take SC McKenzie some six (6) years to progress to the position of sergeant – he can only progress one (1) pay point every twelve (12) months so there is an immediate and long term effect. SC McKenzie will also be required to “win a position” as a sergeant on merit if he returns to general duties however if he remains a police prosecutor he is able to simply progress to sergeant.
62.Given the circumstances of the conduct Mr Gnech argues that the sanction is clearly inappropriate: the public would not expect a person asleep in their own home to receive a fine in this amount and the incident has arisen out of an attempt to protect without intention to deliberately injure or embarrass. When looked at within the context of the wording of the charge and the seriousness of the allegation that is inappropriate conduct Mr Gnech submits there are other more appropriate sanctions which could be imposed.
63.It is SC McKenzie’s submission that suspension of the sanction is also appropriate. The relevant issues in support of the submission are set out in the written submissions. They include: the delay in addressing the matter; SC McKenzie’s position in the police service at the time of the incident; his history of good service and disciplinary record including length of service and SC Mckenzie’s “innocent position” in relation to the incident.[67] SC McKenzie also submits that he is suffering financial hardship having to pay education expenses for his children as well as his personal expenses. The sanction currently imposed will have a greater effect on him due to his responsibilities. In written submissions SC McKenzie argues that as he is “barely making ends meet” a minor financial sanction will still have a significant impact on him and his family.[68]
[67] Outline of Written Submissions for the Applicant, p 3 para 13.
[68] Above p 7 para 23.
64.In relation to SC McKenzie’s prior history Mr Gnech submits that he has over eighteen (18) years of service and has no previous relevant history. SC McKenzie received a medal for good service and remains in the employment of the QPS. It is Mr Gnech’s submission that a suitable sanction would be:
1.A reduction in two (2) pay points – 3.5 to 3.3 for a period of twelve (12) months (effective from 2 February 2010) which would have the practical effect of three (3) years service during which time SC McKenzie would have to work to reach the same level of pay point he was at the time of the disciplinary proceedings (pay point 3.5); or
2.Demotion wholly suspended with a two (2) pay point reduction for eighteen (18) months with a condition being imposed for training to be undertaken by SC McKenzie; such training to be determined by the tribunal subject to its findings.
65.Mr McLeod during oral submissions refers the tribunal to the decision in Aldrich v Ross and that the tribunal should have regard to the views expressed by the original decision maker as to the sanction imposed – the significant injuries inflicted are caused by inappropriate and excessive force used including applying neck restraint. Mr McLeod refers to the respondent decision maker’s views and the “deterrent” principles to other serving police officers to maintain standards and that the sanction needs to be at the “highest end of the scale”.[69]
[69] Respondent’s Outline of Submissions, p 7 para 21.
66.In relation to a suspension of a sanction Mr McLeod submits that it is not appropriate having regard to the circumstances of the incident in particular that SC McKenzie was engaged in off duty conduct at the relevant time and that such conduct clearly amounted to misconduct.[70] Furthermore it was the intention of the respondent decision maker to demote SC McKenzie in pay point levels which would have financial consequences.
[70] Above para 24. See Henry v Ryan [1963] Tas SR 90.
67.Submissions were made at the hearing about the applicability of relevant comparatives, in particular the sanction imposed for other similar disciplinary proceedings. SC McKenzie refers to the matter of Sergeant M Marcum (2009) which involved a charge of excessive force during an arrest of a member of the public. The officer concerned amongst others, was found to have struck the offender in the face with his left hand and once with his right hand – all closed fist punches. He was reduced from pay point 3.2 to 3.1 for a period of two (2) years and was required to undertake an anger management course. In the matter of Beckett (2008) the officer concerned was charged with two (2) counts of using excessive force – prisoner was struck three (3) times to the face and open hand slaps to the back of the head. He was reduced from pay point 2.9 to 2.7 and in respect of the second charge he was fined two (2) penalty units.
68.It is Mr McLeod’s submission that the sanction imposed in respect of these proceedings is not excessive and was appropriate in the circumstances particularly given that SC McKenzie defended the proceedings.
Discussion
69.The tribunal must make its own determination as to whether the sanction imposed was manifestly excessive having regard to all of the circumstances.[71] It must have regard to the respondent decision maker’s views, particularly where the tribunal has the same views as to the facts and inferences.[72] The decision in Hardcastle v Commissioner of Police[73] sets out the purpose of disciplinary proceedings which is reflected in the Queensland Police Service Human Resource Management Manual[74]- protect the public, maintain proper standards, protect the reputation of the police service.[75] The police service must also maintain public confidence in police officer conduct and maintain the self-esteem of its members.[76] In determining sanction, consideration must be given to amongst other factors, the seriousness of the allegation (substantiated), the relevant circumstances, prior good conduct and length of service.[77]
[71] Aldrich v Ross and see O’Keeffe v Deputy Commissioner Rynders referred to in the Outline of submissions for the respondent p 19.
[72] Aldrich v Ross at 258.
[73] (1984) 53 ALR 593.
[74] section 181.1.
[75] Hardcastle v Commissioner of Police at 597.
[76] Police Service Board v Morris (1985) CLR 397.
[77] Human Resource Management Manual (“HRMM”) s 18.1.1.
70.SC McKenzie was sworn in to the QPS on 29 May 1992. He has been working as a police prosecutor since completion of a course in or about February 2004 and was promoted to Sergeant as a Prosecutor in Mount Isa. The tribunal has considered the various references provided which are very supportive of SC Mckenzie’s commitment to his work as a police prosecutor. The tribunal has considered the findings made by the respondent decision maker, in particular:
“Even if it were to be accepted that you held some belief that Ms Moran knew the knife was beside the bed and may have been going to use it, the perceived threat was certainly over once the complainant was handcuffed. Inexplicably and reprehensibly, you then apply what is considered to be a ‘lethal use of force option’ by using a neck restraint on Ms Moran which causes her further injury and distress. It is clear that the act of detaining Ms Moran and the level of force used was completely inappropriate, contrary to policy and excessive in the circumstances. In my opinion, this more than raises the bar to a level where the public would not reasonably expect a police officer to act or behave”.[78]
[78] Section 21 material, p 73.
71.Similar findings were made by this tribunal in relation to SC McKenzie’s actions after applying handcuffs to Ms Moran. Furthermore, the respondent decision maker makes certain findings about the use of “neck restraint holds” as referred to in the Operational Procedures Manual which provides that the use of such holds are considered to be a “lethal ‘use of force’” and should only be used in exceptional circumstances.[79] The respondent decision maker has considered all of the mitigating circumstances put forward by SC McKenzie, in particular his history of good service and his financial circumstances. SC McKenzie’s rank at the time of the incident was also considered a relevant issue in that he was a sergeant of police with 15 years of experience and was responsible for supervising and ensuring compliance with work practices and standards of behaviour. The community would therefore expect “that every action [he] takes would be of the highest standard on and off duty and therefore …[his] actions raised this matter to a level of misconduct”.[80]
[79] Above p 68.
[80] Above p 73.
72.The tribunal agrees with the findings of the respondent decision maker that SC McKenzie’s actions would not meet the standard of conduct that members of the community would expect of a police officer at SC McKenzie’s rank (sergeant) and with considerable experience as a serving member of the police service. Furthermore the sanction imposed must “reflect public disapproval of the conduct…and must act as a deterrent to both Sergeant McKenzie and to other police officers who may aver to similar conduct”.[81] The comparatives referred to by SC McKenzie can be distinguished on the basis that SC McKenzie was off duty at the time of the incident, is an experienced police officer responsible for supervising and ensuring compliance with work practices and he defended the disciplinary proceedings - a relevant factor as argued by Mr McLeod at the hearing, although SC McKenzie was within his legal rights to do so. The tribunal finds that having found the charge (matter one) to be substantiated and that the conduct of SC McKenzie is of such a nature as to erode public confidence in the police service and is therefore misconduct for the purposes of the Police Service Administration Act 1990 and having regard to all of the material and the circumstances, the sanction imposed by the respondent decision maker was therefore appropriate.
[81] Above p 77.
73.The tribunal orders as follows:
1.In respect of matter one, the respondent’s decision is confirmed.
2.In respect of the sanction imposed, the respondent’s decision is confirmed.
3.The applicant’s application is dismissed.
Member Stilgoe
74.I agree with the presiding Member’s decision and the reasons therefore. However, I wish to make some brief comments about penalty.
75.Mr Gnech, on behalf of SC McKenzie, pointed out that reduction in two (2) pay points – 3.5 to 3.3 for a period of twelve (12) months meant that the effective sanction operated for three (3) years service during which time SC McKenzie would have to work to reach the same level of pay point he was at the time of the disciplinary proceedings. In that respect, to simply articulate the penalty as operating for 12 months is misleading. If, as was obviously the decision-maker’s intention in this case, the sanction is intended to operate for the period in which the officer will have to work to regain the same level of pay point, then this should be clearly identified and acknowledged by the decision maker.
76.The number of disciplinary matters being referred to the tribunal is increasing. All decisions of the tribunal are reported. Public confidence in the process demands that the real nature and full extent of the sanction is properly articulated by the decision maker at first instance.
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