Minns v Deputy Commissioner Martin - [2018] QCAT 213

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Minns v Deputy Commissioner Martin [2018] QCAT 213

PARTIES:

AARON MINNS
(applicant)

v

DEPUTY COMMISSIONER PETER MARTIN

(respondent)

APPLICATION NO/S:

OCR144-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.   The sanctions imposed by Deputy Commissioner Peter Martin on 22 June 2017 are set aside and the following sanctions are substituted.

2.   Aaron Minns is demoted from Senior Constable pay point 2.2 to Constable pay point 1.6 effective from 22 June 2017.

3.   Aaron Minns is eligible to progress from Constable pay point 1.6 to Senior Constable pay point 2.1 from 22 June 2018 subject to having completed the normal industrial requirements of the Queensland Police Service for progression to that pay point.

4.   Aaron Minns is transferred to a general duties position within his district to be decided by his Assistant Commissioner.

5.   Aaron Minns is to complete all necessary requalification in relation to operational skills before returning to operational duties.

6.   Aaron Minns is to attend the Police Integrity Unit, Ethical Standards Command and complete a program on professionalism and ethical decision-making by 13 October 2018.

7.   Aaron Minns is to submit himself as directed by his Assistant Commissioner to assist with in-service training and presentations at least one day a month for 18 months from 13 July 2018, with his role being to speak from his own experiences and lessons learnt to other police officers about appropriate use of force and associated principles on why police officers should have a minimum use of force mindset, with the content of the presentations to be subject to approval by the Assistant Commissioner or an officer or officers delegated by the Assistant Commissioner.

8.   The sanctions in orders 4 to 7 above must be complied with only to the extent that the comparable sanctions imposed by Deputy Commissioner Peter Martin on 22 June 2017 have not yet been complied with.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where excessive force used against prisoners – whether deferral of promotion for five years is an excessive sanction

Police Service Administration Act 1990 (Qld), s 1.4, s 7.4
Crime and Corruption Act 2001 (Qld), s 219A

Medical Board of Australia v Martin [2013] QCAT 376
Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
Belz v Assistant Commissioner Wilson [2011] QCAT 632
Belz v Assistant Commissioner Wilson [2012] QCATA 185
Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor(No 2) [2014] QCAT 488
Kuhn v Deputy Commissioner of Police Brett Pointing [2017] QCAT 16
Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37

REPRESENTATION:

Applicant:

Gilshenan & Luton Legal Practice

Respondent:

Queensland Police Service Legal Unit

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCAT 213
Decision Date: 13 July 2018

CaseChat Overview and Summary

In the case of Minns v Deputy Commissioner Martin, the applicant, Aaron Minns, a former police officer, challenged the disciplinary sanctions imposed on him by the Deputy Commissioner of the Queensland Police Service. The dispute centred on the excessive use of force by Mr Minns against prisoners, which led to his demotion and a five-year deferral of promotion. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the Deputy Commissioner's decision and determining whether the sanctions were appropriate. The central legal issues were whether the misconduct was substantiated and, if so, whether the sanctions imposed were excessive or appropriate in the circumstances.

The tribunal began by examining the nature of Mr Minns' misconduct. While Mr Minns argued that his actions were motivated by a desire to prevent the destruction of evidence, the tribunal found that his actions were more likely driven by a desire for retribution. This finding was based on the excessive force used, which included dragging a prisoner off a toilet and striking him in the head. Despite Mr Minns' otherwise good character and service record, the tribunal concluded that his actions constituted misconduct under the Police Service Administration Act 1990. The tribunal also noted that the sanctions were within the permissible range and were necessary to uphold ethical standards and public confidence in the police force.

In its reasoning, the tribunal highlighted the importance of maintaining discipline within the police force to ensure public safety and confidence. The tribunal accepted the joint submissions of the parties regarding the appropriate sanctions, with minor adjustments to reflect Mr Minns' current service location and to include a requirement for content approval for his training presentations. The tribunal found that the proposed sanctions, which included a one-year deferral of promotion instead of five, demotion, transfer to a general duties position, and mandatory training and presentation requirements, were appropriate and within the permissible range.

The tribunal concluded by setting aside the original sanctions imposed by the Deputy Commissioner and substituting them with the amended sanctions proposed by the parties. The new sanctions included a demotion, a one-year deferral of promotion, a transfer to a general duties position, and mandatory training and presentation requirements aimed at reinforcing appropriate use of force and ethical decision-making within the police force.

Orders

Orders of the court

1. The sanctions imposed by Deputy Commissioner Peter Martin on 22 June 2017 are set aside and the following sanctions are substituted.

2. Aaron Minns is demoted from Senior Constable pay point 2.2 to Constable pay point 1.6 effective from 22 June 2017.

3. Aaron Minns is eligible to progress from Constable pay point 1.6 to Senior Constable pay point 2.1 from 22 June 2018 subject to having completed the normal industrial requirements of the Queensland Police Service for progression to that pay point.

4. Aaron Minns is transferred to a general duties position within his district to be decided by his Assistant Commissioner.

5. Aaron Minns is to complete all necessary requalification in relation to operational skills before returning to operational duties.

6. Aaron Minns is to attend the Police Integrity Unit, Ethical Standards Command and complete a program on professionalism and ethical decision-making by 13 October 2018.

7. Aaron Minns is to submit himself as directed by his Assistant Commissioner to assist with in-service training and presentations at least one day a month for 18 months from 13 July 2018, with his role being to speak from his own experiences and lessons learnt to other police officers about appropriate use of force and associated principles on why police officers should have a minimum use of force mindset, with the content of the presentations to be subject to approval by the Assistant Commissioner or an officer or officers delegated by the Assistant Commissioner.

8. The sanctions in orders 4 to 7 above must be complied with only to the extent that the comparable sanctions imposed by Deputy Commissioner Peter Martin on 22 June 2017 have not yet been complied with.

Background

Background to the litigation

I am not sure what is intended by the joint submission to the effect that the Deputy Commissioner determined Mr Minns’ motivation for grabbing the man to the floor to be Mr Minns’ concern that the man could be attempting to destroy evidence of drugs. If it is meant to summarise the Deputy Commissioner’s relevant finding in the decision under review, it is not accurate. The Deputy Commissioner found that the most likely explanation for the behaviour was that Mr Minns was ‘determined to inflict punishment on him for making threats’.[1] If the submission is intended to mean that Mr Minns used force solely for the purpose of preventing the flushing away of drugs, I do not accept that this provides a full explanation. The dragging of the man off the toilet even though he was under the control of other officers, followed by the striking of the man in the head, suggest a retaliatory motivation. While I can accept that the risk of the man flushing drugs crossed Mr Minns’ mind, and contributed to his behaviour, I find that the conduct was also motivated by a desire for retaliation. [1]Hearing papers, p 21.Mr Minns’ background and general character According to the joint submissions, Mr Minns was sworn in as a police officer on 21 January 2009, and progressed to the rank of Senior Constable on 21 January 2014. The joint submissions also draw attention to many positive references and good work notations. It is submitted that these show a generally good character, solid work ethic, and a preparedness to help people in need. The incidents in question are, according to several referees, out of character. There is a joint submission to the effect that Mr Minns has demonstrated remorse and insight, and is suitable to continue serving as a police officer. I accept those submissions.Legal framework Improper conduct on the part of a police officer constitutes ‘misconduct’, and provides a basis for disciplinary action.[2] [2]Police Service Administration Act 1990 (Qld), s 1.4, s 7.4(2). Disciplinary proceedings exist to protect the public, uphold ethical standards, and promote and maintain public confidence.[3] [3]Crime and Corruption Act 2001 (Qld), s 219A. When QCAT reviews a disciplinary decision, it can impose sanctions ranging from a fine through to dismissal.[4] QCAT must reach what it considers to be the correct and preferable decision.[5][4]Police Service Administration Act 1990 (Qld), s 7.4(3); Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c).[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1). Where parties have made a joint submission on sanction, QCAT should adopt the proposed sanction if it falls within the permissible range. This approach promotes efficiency. It is taken to enable parties to reach what they see as a sensible agreement with reasonable confidence that the agreement will be put into effect.[6] [6]Medical Board of Australia v Martin [2013] QCAT 376, 17-18; Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37, [11]. Is a basis for disciplinary action established?

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, I will give effect to the proposal of the parties subject to some minor changes. The parties’ proposal involves reducing the deferral period from five years to one, but otherwise it largely adopts the substance of the Deputy Commissioner’s sanctions. The parties propose some relatively minor changes, for example to reflect the fact that Mr Minns is no longer serving on the Gold Coast. They have not included the requirement that the content of Mr Minns’ training presentations be approved, but I think it should be included. I will make that change, together with some adjustments to how the sanctions are expressed. The parties have proposed an order that ‘the Applicant’s review application, in so far as it relates to substantiation, is discontinued’. I do not consider that such an order is necessary, as the orders generally will conclude the review in any event.Conclusion For these reasons, I will set aside the Deputy Commissioner’s sanctions and substitute an amended set of sanctions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Minns v Deputy Commissioner Martin [2018] QCAT 213
PARTIES:	AARON MINNS (applicant)
v
DEPUTY COMMISSIONER PETER MARTIN (respondent)
APPLICATION NO/S:	OCR144-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	13 July 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Kanowski
ORDERS:	1. The sanctions imposed by Deputy Commissioner Peter Martin on 22 June 2017 are set aside and the following sanctions are substituted. 2. Aaron Minns is demoted from Senior Constable pay point 2.2 to Constable pay point 1.6 effective from 22 June 2017. 3. Aaron Minns is eligible to progress from Constable pay point 1.6 to Senior Constable pay point 2.1 from 22 June 2018 subject to having completed the normal industrial requirements of the Queensland Police Service for progression to that pay point. 4. Aaron Minns is transferred to a general duties position within his district to be decided by his Assistant Commissioner. 5. Aaron Minns is to complete all necessary requalification in relation to operational skills before returning to operational duties. 6. Aaron Minns is to attend the Police Integrity Unit, Ethical Standards Command and complete a program on professionalism and ethical decision-making by 13 October 2018. 7. Aaron Minns is to submit himself as directed by his Assistant Commissioner to assist with in-service training and presentations at least one day a month for 18 months from 13 July 2018, with his role being to speak from his own experiences and lessons learnt to other police officers about appropriate use of force and associated principles on why police officers should have a minimum use of force mindset, with the content of the presentations to be subject to approval by the Assistant Commissioner or an officer or officers delegated by the Assistant Commissioner. 8. The sanctions in orders 4 to 7 above must be complied with only to the extent that the comparable sanctions imposed by Deputy Commissioner Peter Martin on 22 June 2017 have not yet been complied with.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where excessive force used against prisoners – whether deferral of promotion for five years is an excessive sanction Police Service Administration Act 1990 (Qld), s 1.4, s 7.4 Crime and Corruption Act 2001 (Qld), s 219A Medical Board of Australia v Martin [2013] QCAT 376 Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490 McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 Belz v Assistant Commissioner Wilson [2011] QCAT 632 Belz v Assistant Commissioner Wilson [2012] QCATA 185 Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor(No 2) [2014] QCAT 488 Kuhn v Deputy Commissioner of Police Brett Pointing [2017] QCAT 16 Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37
REPRESENTATION:
Applicant:	Gilshenan & Luton Legal Practice
Respondent:	Queensland Police Service Legal Unit
APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal…