Re Watson

[1996] QSC 115

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane
  O.S. No.  2412 of 1996

[Re Watson]

IN THE MATTER OF

the Criminal Justice Act 1989

- and -

IN THE MATTER OF an appeal by CHRISTOPHER JOHN WATSON against a decision of a Misconduct Tribunal exercising original jurisdiction

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered     5 July 1996

CATCHWORDS: Police - discipline - official misconduct - misconduct tribunal - Appeal to Supreme Court under s.48 Criminal Justice Act 1989 - Misuse of  police service revolver (pointing loaded revolver at fellow officer on two occasions, and cocking it on one).

Definition "official misconduct" s.32 Criminal Justice Act 1989 - Whether Appellant's conduct revealed a "breach of the trust placed in the person by reason of his holding appointment" in the Queensland Police Service - additional requirement of s.32(1)(d) that "conduct constitutes or could constitute a disciplinary breach that provides reasonable ground for termination" - whether this involves a decision on the pleadings or on facts that emerge in the hearing - Whether the penalty of dismissal was manifestly excessive.

Appeal dismissed.

Counsel:Mr MacSporran for the Applicant

Mr Mulholland for the Respondent

Solicitors:Gilshenan & Luton for the Applicant

Crown Solicitor for the Respondent

Hearing date:          28 June 1996

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane
  O.S. No.  2412 of 1996

[C.J. Watson]

IN THE MATTER OF

the Criminal Justice Act 1989

- and -

IN THE MATTER OF an appeal by CHRISTOPHER JOHN WATSON against a decision of a Misconduct Tribunal exercising original jurisdiction

JUDGMENT - THOMAS J.

Judgment delivered 5 July 1996

This is an appeal and an application for leave to appeal against a decision of a misconduct tribunal exercising original jurisdiction under the Criminal Justice Act 1989. The appeal comes to this court under s.48.
          The decision in question was that of a misconduct tribunal constituted by Mr M.J. Halliday.  The appellant, Mr Watson, was found guilty of two charges of official misconduct and it was ordered that he be dismissed from the Queensland Police Service.
          The charges arose out of incidents that occurred on 11 and 12 January 1994 when the appellant allegedly misused his police service revolver.  The evidence shows that on the afternoon of 11 January in the constables' day-room, whilst he was alone with a female police officer Constable Rolfe he took his loaded revolver from its holster and pointed it at her.  The evidence also shows that on the following morning, when he and Constable Rolfe visited another police officer, Constable Cantwell at Cantwell's unit, he again produced his loaded police revolver and pointed it at Constable Rolfe, this time cocking it.
          Ground 1 alleges an error of law, and its appeal on this ground is by right (s.48(2)(a)(ii)).  Similarly the ground of "manifestly excessive penalty" is a matter upon which there is an appeal as of right (s.48(2)(a)(iii)).  Counsel for the appellant conceded that the other grounds of appeal (grounds 2, 3, 4 and 5 which allege errors of fact and inadequacy of evidence) are matters as to which leave is required.  His overall submission was that when the evidence is looked at as a whole, the finding of guilt was unsafe and unsatisfactory.  He submits that if I were to be satisfied of this, I should grant leave and allow the appeal.  Broadly speaking the latter submission is correct.  It should not be thought however that in every case this court is required to undertake a full examination of the evidence on the mere allegation that the result was unsafe and unsatisfactory.  In the present case Mr MacSporran indicated that the particulars of the case he wished to argue were already contained in grounds 2 to 5, and he foreshadowed in a concise and ordered way the nature of the case he wished to present.  In the circumstances I permitted him to canvass the evidence and afforded him the opportunity to present a full submission on the question whether the finding was unsafe and unsatisfactory, reserving the question whether in due course I would grant leave.
          It will be convenient to consider first the adequacy of the evidence and the findings.
          The main evidence leading to the adverse finding against Mr Watson came from Constables Rolfe and Cantwell.  The member had the advantage of seeing the witnesses, and was prepared to act upon the evidence of these witnesses.  He expressed an unfavourable view of the evidence of the appellant.
          Counsel for the appellant submitted that the accounts of Constable Rolfe and Constable Cantwell were inherently improbable.  Many points were raised in support of that assertion, but none of them is in my view particularly convincing, and neither is the story inherently improbable.  Criticism was made of her evidence that while the pistol was pointed at her she leaned forward to see whether it was loaded or not;  that she did not make any complaint about the matter that evening, but went home to think about it;  the fact that she was prepared to work with him the following day, still not having made a complaint;  Cantwell's politeness when the appellant and Constable Rolfe left;  Constable Rolfe's willingness to continue working with him after the second incident;  and the circumstance in which Constable Rolfe, upon arriving at Moorooka Police Station made her complaint to Sergeant Hyde.
          The evidence permits an inference that the appellant may have had a sexual interest in Constable Rolfe, and there is nothing inherently improbable in the possibility that he was willing to engage in extravagant conduct in order to gain her interest.  The points which have just been set out do not individually or collectively undermine the acceptability of the evidence of Constable Rolfe or Constable Cantwell.  There was nothing inherently unlikely in Constable Rolfe taking some time in deciding whether to make official complaint or not, and she in any event raised it with her boyfriend Cantwell the following morning during the visit.  It is not particularly surprising that she would after the second incident complete her shift with the appellant until such time as she had decided what she would do.  The sequence of the complaint seems to be that after Constable Rolfe and the appellant had left, Constable Cantwell sought advice from another police officer (Dachs) who told him that he must complain.  Cantwell then went to Sergeant Hyde, and made a complaint.  Details were still being taken by Sergeant Hyde when Constable Rolfe and the appellant came to the station.  Sergeant Hyde then confronted Constable Rolfe and asked her for information, no doubt to check whether it supported what he had heard from Constable Cantwell.  She gave him consistent information and the matter proceeded officially from that point forward.
          The appellant did not deny that there were two incidents between himself and Constable Rolfe in which he had drawn his pistol and pointed it in her direction.  Something of the kind complained of certainly happened.  The defence case seems to have been that the principal witnesses had twisted and exaggerated the incidents rather than fabricated them.  His version was that on the first occasion Constable Rolfe made a gesture with her hand or fingers, symbolic of pointing a pistol at him.  He claims thereupon to have responded by drawing his actual pistol and pointing it at her.  He admitted that she protested at the time, but said that he laughed it off.
          His explanation for the second incident was that when she was complaining to Cantwell about the earlier incident, he drew his pistol this time in order to demonstrate what he had done on the previous occasion.  This involved again pointing his pistol at Constable Rolfe, this time in the presence of Constable Cantwell.
          I do not consider that any telling submission can be made based on inherent probabilities.  The case was in effect a witness action in which the tribunal member had the advantage of seeing the witnesses and hearing the evidence over a number of days.
          Counsel for the appellant submitted that there are inconsistencies in the accounts given by Constable Rolfe on various occasions.  It is true that during some of her earlier interviews and statements she failed to mention some details which appeared in later statements and in her evidence.  The strongest of these is the detail that she actually saw the appellant unload the pistol shortly after the first incident.  This was not mentioned during earlier interviews, and, in a record of interview on 15 January 1995 she stated ". . and then he put it away or unloaded it, I'm not sure, because I think I turned away in disbelief that he had done that . .".  However her statement of 20 January 1995 alleges that she saw the appellant unload the bullets.
          I do not propose to canvass the other alleged inconsistencies.  There is nothing remarkable in them, and they are not such as to require the tribunal to have disbelieved or seriously doubted her.  It may be noted that there is very little alleged in the way of inconsistency in the evidence of Constable Cantwell.
          It was further submitted that the tribunal misdirected itself in the following passage:

"On the evidence placed before the tribunal, there is nothing to suggest that there was any meeting or contact between Constables Rolfe and Cantwell subsequent to the incident at the Moorooka Police Station, save for a phone call earlier in the morning of the 12th January when arrangements were made for Constable Rolfe to attend at Constable Cantwell's unit in order to collect a holster for her revolver."

The point at issue was whether Constables Rolfe and Cantwell might have conspired to make a false or exaggerated complaint.  It is difficult to think that either incident could be engineered.  There is evidence that Rolfe spoke to Cantwell on the telephone on the evening after the first incident and that they spoke briefly in the bedroom after the second incident before Constable Rolfe returned to the appellant and left with him.  It was submitted that there was a further opportunity at the Moorooka Police Station before Constable Rolfe spoke with Sergeant Hyde.  On this latter point the evidence, including that of Sergeant Hyde, suggests that this afforded no opportunity of collusion or concoction.  There is a literal error in the quoted passage in that it overlooks the phone call on the evening of  11 January.  Perhaps it also overlooks the bedroom contact, though I think that unlikely.  It is more likely that the member was considering occasions other than the visit to the unit itself.  In any event I do not think that the omission of these details discloses any essential error in the member's reasoning or that it falsifies his approach on the question of credit.
          Counsel for the appellant submitted that the concession by his client of the irregularities in his conduct should have helped in the acceptance of his evidence rather than hindered it.  He objected to the comment of the member that "his version as to and his explanation for removing his revolver was, in my opinion, unnecessary and unreasonable and I am unable to accept it as being a reasonable response or conduct in the circumstances".  There is however nothing unreasonable or unfair in those observations.  They are not conclusive observations on the issue of credit, but they are observations that might reasonably be made on the way.
          Having considered all the arguments advanced I am unable to conclude that the finding of guilt was unsafe or unsatisfactory or that the evidence was such that the member should have entertained a reasonable doubt in the appellant's favour.
          I would accordingly refuse leave to appeal on the grounds dealing with the evidence and its adequacy.
There remains the question of law raised in ground 1. This introduces the relevant part of the definition of official misconduct in s.32. It will be sufficient to set out the part of that definition upon which the present proceedings were based.

"Official misconduct is . . conduct of a person . . while the person holds an appointment in a unit of public administration . . that . . involves a breach of the trust placed in the person by reason of his . . holding the appointment . .;  . . and constitutes or could constitute . . a disciplinary breach that provides reasonable grounds for termination of the person's services . ."

It was submitted that the conduct in question revealed no breach of the trust that was placed in the appellant by reason of his membership of the Queensland Police Service.
          Police officers are vested with considerable powers and it is a matter of public importance, and I think public trust, that police officers do not abuse those powers.  Among the exceptional powers of police officers is the right to carry arms, and of course their display of public power must be protected by disciplined conduct and training respecting the use of such arms whether in the public eye or not.  Counsel did not suggest that there are any directly applicable judicial statements, but reference was made to general observations of Demack J in Re Bowen (No. 652 of 1994), and of Brennan J in Police Service Board v. Morris (1985) 1 56 CLR 397, 412. In the latter case Brennan J observed that -

"Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardise public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers.  The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency."

The words "breach of the trust placed in the person by reason of his holding the appointment" is not a term of art, and should be given its ordinary meaning.  When a police officer assaults a member of the public or abuses his powers, the natural response of both the public and, when the occasion arises, the sentencing court, is to describe such conduct as damaging the public trust that is placed in the force.  I was by way of example referred to the sentencing remarks of Judge Skoien (R v. Cannon 28 May 1991) which include such an observation and a finding that the offender had betrayed the public trust that he had sworn to serve. The relevant words in s.32 do not require that the breach be committed in the face of the public. It seems to me that the privilege of having arms is a particularly sensitive one which calls for serious personal discipline, and that breach of such discipline is capable of amounting to a breach of the trust placed in a police officer by reason of his position. The threatening of a fellow police officer with a service firearm is in my view capable of involving such a breach of trust.
The additional requirement of s.32(1)(d) that the person's conduct constitutes or could constitute a disciplinary breach that provides reasonable grounds for termination of that person's services introduces in each case a matter of circumstance and degree. The appellant's misuse of the firearm was undoubtedly a disciplinary breach. Was it however one "that provides reasonable grounds for termination of the person's services"? This is a curiously circular provision, overlapping with the question of the appropriate penalty for the breach in question. The question cannot be addressed on the same level as ultimate consideration of penalty, which involves antecedents and subjective matters including past service good character and the like. To satisfy these particular words which may be regarded as an element of the offence of official misconduct, it is at least necessary to show that the breach in question was such that termination would be a reasonably possible outcome. I do not think that s.32(1)(d) requires, as it were, a finding on the pleadings, but rather a decision in the light of the facts that emerge at the hearing. This does not pre-empt the penalty but it requires consideration of what the final result is capable of being. Perhaps other views are open, but this is one way of making sense of a perplexing provision.
          The question then is whether the conduct in question "constitutes or could constitute a disciplinary breach that provides reasonable grounds for termination". 
          In my view the conduct in question was relatively serious conduct.  Police officers must be able to trust in the discipline and discretion of fellow serving officers, particularly in their use of firearms.  It was repeated, and in my view the conduct in question was sufficiently serious to be capable of satisfying the definition.  The conduct reveals disciplinary breaches sufficiently serious to provide reasonable grounds for termination.
          The appeal against the finding of guilt should therefore be dismissed.
          There remains the question whether the penalty was manifestly excessive.  There is immediately a difficulty in finding that the penalty was manifestly excessive in view of the finding just made that the conduct in question revealed disciplinary breaches sufficiently serious to provide reasonable grounds for termination.  This is not to say that it would be impossible for a tribunal to impose a lesser penalty than termination upon a finding of guilt of official misconduct of this kind.  Indeed the personal circumstances and the circumstances of a particular case may make such a lesser penalty perfectly appropriate.  However obviously there is a greater scope for the tribunal of first instance to do so than there is for the appeal court which can only interfere if the penalty is "manifestly excessive" as those words are understood.
          I can only say that dismissal lay within the range of options open to the tribunal in this instance.  It may well be that the appellant has suffered very serious consequences by reason of an aberration based upon circumstances that will not recur.  However the activity was observed on two occasions and can fairly be described as bizarre.  The appellant may well be unfortunate in that his aberration lies in an area where neither the police force nor society can afford to take risks, namely the use of a firearm.  I do not say that every misuse of a firearm will cause such a drastic result.  A negligent breach of the Commissioner's directions may well not do so.  But this case goes well beyond circumstances of negligence.  I am unable to hold that the penalty was manifestly excessive.
          The appeal will therefore be dismissed.