Newman v Commissioner for Police - [2013] QCAT 152

CITATION:

Newman v Commissioner for Police [2013] QCAT 152

PARTIES:	Gregory Newman (Applicant)
V
Commissioner for Police (Respondent)

APPLICATION NUMBER:

OCR103-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

5 December 2012

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member
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:

OCCUPATIONAL REGULATION – POLICE OFFICER – MISCONDUCT – whether charges were substantiated to the necessary standard – whether sanction excessive

Crime and Misconduct Act 2000 (Qld), s 219A, s 219B, s 219BA, s 219C, s 219H(2)
Police Service Administration Act 1990 (Qld), s 1.4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s17, s 24

Aldrich v Ross [2001] 2 QdR 235, cited
Briginshaw v Briginshaw (1938) 60 CLR 336 applied
Compton 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 359, 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, however, received by the QPS on 14 March 2011 in relation to Mr…

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: [2013] QCAT 152
Decision Date

CaseChat Overview and Summary

In this matter, the applicant, Mr Gregory Newman, a police officer with the Queensland Police Service, sought a review of the decision of the respondent, the Commissioner for Police, which related to the substantiation of a charge of misconduct and the sanction imposed. Mr Newman applied for a position of Senior Sergeant within the QPS and submitted an application that included comments that were allegedly made by Inspector Flori. An investigation into the matter found that the application contained false and misleading information. Mr Newman disputes the substantiation of the charge and the sanction imposed by the QPS. The Tribunal found that the charge was substantiated, but the sanction was excessive. The Tribunal ordered that the decision of the QPS to substantiate the charge be confirmed and that a sanction of reprimand be imposed in lieu of a deduction in salary or wages.

The Tribunal was required to decide whether the disciplinary charge against Mr Newman was substantiated and whether the sanction imposed was excessive. The Tribunal found that the charge was substantiated as Mr Newman had added words to a comment purportedly made by Inspector Flori to make his application more attractive to the selection panel. The Tribunal also found that the sanction imposed by the QPS was excessive and substituted a reprimand in lieu of the original sanction. The Tribunal had regard to the purpose of disciplinary proceedings and all of the circumstances, including the comparatives relied upon by Mr Newman, in determining the appropriate sanction. The Tribunal found that a reprimand was a more appropriate sanction in all of the circumstances.

Orders