Murray v Deputy Commissioner Stewart - [2011] QCAT 583

CITATION:

Murray v Deputy Commissioner Stewart [2011] QCAT 583

PARTIES:	Mr Ross Murray (Applicant/Appellant)
v
Deputy Commissioner Ian Duncan Stewart (Respondent)

APPLICATION NUMBER:

OCR237-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

6 September 2011

HEARD AT:

Brisbane

DECISION OF:

Hon J B Thomas, Presiding Member
J Allen, Member

DELIVERED ON:

19 September 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent's decision of 7 September 2010 be set aside;

2. It is determined that the applicant's level of salary be reduced from Sergeant paypoint 3.4 to 3.2 for a period of 12 months.

CATCHWORDS:

Review of sanction – applicant one of five police officers who ran nude around vehicle – different sanctions imposed on other participants – need for consistency and avoidance of legitimate sense of grievance – analogy with principle in Lowe v R [1984] 154 CLR 606 --– relevance of seniority of offender – Tribunal’s duty to respect views of original decision maker (as in Aldrich v Ross) but to depart from them when it forms a clearly different view

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Ross Murray was represented by Mr P E Smith, counsel
RESPONDENT:	Deputy Commissioner Ian Duncan Stewart was represented by Mr S McLeod, counsel

REASONS FOR DECISION

This is an application by a police officer for review of a sanction imposed upon him in the disciplinary process.

He was one of a group of police officers who engaged in a series of “streaking” incidents around a police bus on 20 September 2009. He pleaded guilty to a charge of misconduct, the particulars of which were that he was off duty and highly intoxicated whilst being transported from Cleveland to Oxley in a Queensland police vehicle, and that he exited the vehicle which stopped at traffic lights in a state of full undress and ran around the vehicle.

The present proceeding is for review of the sanction, mainly a reduction as follows:
“temporary demotion in rank from Sergeant 3.4 to Senior Constable 2.9 for a period of twelve months from today’s date. Furthermore, at the completion of the twelve month period, I order that you re-attain the rank of Sergeant 3.1 without the usual requirement for merit based selection. Once you have attained the rank of Sergeant at pay point 3.1 you may progress through the relevant pay points each 12 months provided you achieve satisfactory PPA’s and not be required to complete Management Development Program (MDP) and/or Competency Acquisition Program (CAP) requirements in order to progress through the pay points in the Sergeant rank.”

Circumstances

The evidence is contained in a 651 page investigation report with attachments interviews and exhibits.

In short compass, the applicant and a number of other police officers and some civilians attended an organised bucks party to celebrate the impending marriage of a police colleague. Two police minibuses were organised to transport eighteen police personnel and two civilians to and from the Raby Bay marina. They departed from the Oxley complex at about 9am, and at Raby…

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: [2011] QCAT 583
Decision Date: 19 September 2011

CaseChat Overview and Summary

The matter before the court involved an application for review of a sanction imposed on the applicant, a police officer, by the respondent. The applicant, along with four other officers, had participated in an incident where they ran nude around a vehicle, which led to disciplinary action. The other officers involved received different sanctions, which the applicant argued lacked consistency and potentially caused a legitimate sense of grievance among the officers. The applicant sought a review of the sanction imposed on him, arguing that it was disproportionate and inconsistent with the sanctions given to the other officers.

The central legal issue before the court was whether the sanction imposed on the applicant was appropriate, consistent, and proportionate, particularly in light of the different sanctions handed down to the other officers involved in the same incident. The applicant argued that the lack of uniformity in sanctions could lead to a sense of injustice and grievance among the officers. The court was required to determine if the Tribunal's decision to impose a specific sanction on the applicant was just and reasonable, taking into account the need for consistency and the principles of natural justice.

The court found that the Tribunal had not adequately addressed the need for consistency in the sanctions imposed on the officers involved in the incident. While the Tribunal had a duty to respect the views of the original decision-maker, it also had an obligation to depart from those views if it formed a clearly different view. The court drew an analogy to the principle in Lowe v R, highlighting that a sense of injustice could arise if sanctions were not consistent. The court also considered the relevance of the seniority of the offenders, noting that this factor was not adequately addressed by the Tribunal. The court concluded that the Tribunal had erred in not considering the need for consistency and proportionality in the sanctions imposed.

The court ordered that the respondent's decision of 7 September 2010 be set aside and that the applicant's level of salary be reduced from Sergeant paypoint 3.4 to 3.2 for a period of 12 months. This order aimed to ensure that the sanction imposed was consistent with the principles of natural justice and proportionality.

Orders

Orders of the court

1. The respondent's decision of 7 September 2010 be set aside;

2. It is determined that the applicant's level of salary be reduced from Sergeant paypoint 3.4 to 3.2 for a period of 12 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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