Newman v Barry - [2013] QCAT 221

CITATION:

Newman v Barry [2013] QCAT 221

PARTIES:	Mr Gregory Newman (Applicant)
v
Inspector Ronald Barry (Respondent)

APPLICATION NUMBER:

OCR103-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

5 December 2012

HEARD AT:

Brisbane

DECISION OF:

Mr Richard Oliver, Senior Member
Ms Joanne Browne, Member

DELIVERED ON:

20 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s decision made on 28 February 2012 in relation to the charge being substantiated is confirmed.

2. The Respondent’s decision to impose a sanction being a deduction in salary or wages of an amount equivalent to a fine of two (2) penalty units is set aside and the following decision is substituted for it:

i) Mr Newman be subject to the sanction of reprimand.

CATCHWORDS:

Disciplinary proceedings – Police officer – Misconduct – whether charges were substantiated to the necessary standard – whether sanction excessive

Crime and Misconduct Act 2000, ss 219A, 219B, 219BA, 219C, 219H(2)
Police Service Administration Act 1990, s 1.4
Queensland Civil and Administrative Tribunal Act 2009, ss17, 24

Aldrich v Ross (2001) 1 Qd R 235
Briginshaw v Briginshaw (1938) 60 CLR 336 applied
Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, cited
Crime & Misconduct Commission v Assistant Commissioner JP Swindells & Ors [2009] QSC 409, cited
DA v Deputy Commissioner Ian Stewart [2011] QCATA 356, cited
Deputy Commissioner Stewart v Dark [2012] QCA 228, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Gregory Newman, self represented

RESPONDENT:

Inspector Ronald Barry, Inspector of Police represented by Mr MD Nicholson of Counsel instructed by the Office of the Queensland Police Service Solicitor

REASONS FOR DECISION

Mr Richard Oliver, Senior Member

In this matter the Tribunal consisted of Member Browne, and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Ms Joanne Browne, Member

Mr Newman has been a member of the Queensland Police Service (QPS) for some fifteen years. He applied for a gazetted advertised position with the QPS – Senior Sergeant – Officer in Charge, Coomera District Traffic Branch. The application (identified as position number 310/10) was submitted on 5 July 2010; and in submitting the application he declared that to the best of his knowledge and belief the information stated was correct and complete and if necessary he would produce additional information and documentary evidence to support his application.
The application 310/10 included references to examples of work Mr Newman had undertaken in response to the key selection criteria and a reference (in one example presented) to a statement made by an Inspector of police (Inspector Flori) that he (Mr Newman) had displayed ‘…decisive management and leadership of both QPS and external agency staff’.
Mr Newman was the successful applicant for the position (310/10) following a merit based selection process. A complaint was received (however) by the QPS on 14 March 2011 in relation to Mr Newman’s application 310/10 –…

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.

Continue reading Newman v Barry

Details

AGLC: Newman v Barry [2013] QCAT 221
Case: [2013] QCAT 221
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal is an appeal by Mr Gregory Newman, a member of the Queensland Police Service (QPS), against a disciplinary decision of Inspector Ronald Barry. The QPS had found that Mr Newman's application for a position contained false and misleading information and imposed a financial penalty. The Tribunal, consisting of Mr Richard Oliver and Ms Joanne Browne, was tasked with reviewing the decision. The Tribunal found that it had jurisdiction to review the QPS's decision under the Queensland Civil and Administrative Tribunal Act 2009 and the Crime and Misconduct Act 2001. The standard of proof applied was the balance of probabilities.

The Tribunal considered whether Inspector Flori had previously adopted the words used in Mr Newman's application, as Mr Newman claimed. The Tribunal found that there was insufficient evidence to support Mr Newman's submission that Inspector Flori had adopted the words in a previous application. The Tribunal was not satisfied that Inspector Flori had approved the words in the current application based on the evidence before it.

The Tribunal found that the conduct was proven as misconduct under the Police Service Administration Act 1990. The Tribunal accepted that Mr Newman had added words to a statement purportedly made by Inspector Flori in his application, which was in breach of the declaration that the information provided was correct and complete to the best of the applicant's knowledge. The Tribunal considered the context of the conduct and the standard expected of a police officer by the community.

The Tribunal found that the sanction imposed by the QPS was excessive. The Tribunal considered the purpose of disciplinary proceedings and the principles to be applied, as set out in the Crime and Misconduct Act 2001. The Tribunal took into account the comparatives before it, the number of years Mr Newman had served in the QPS, and the numerous references which attested to his contributions to the community. The Tribunal accepted Mr Newman's submission that a sanction of reprimand was appropriate in all the circumstances.

The Tribunal confirmed the QPS's decision that the charge was substantiated but set aside the decision to impose a financial penalty and substituted a sanction of reprimand instead.

Orders