Staples v Deputy Commissioner Stewart - [2011] QCAT 582

CITATION:

Staples v Deputy Commissioner Stewart [2011] QCAT 582

PARTIES:	Benjamin Staples (Applicant/Appellant)
v
Deputy Commissioner Ian Duncan Stewart (Respondent)

APPLICATION NUMBER:

OCR236-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

6 June 2011

HEARD AT:

Brisbane

DECISION OF:

Hon J B Thomas, Presiding Member
Mr James Allen, Member

DELIVERED ON:

19 September 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent's decision of 7 September 2010 finding that the charge of improper conduct by the applicant on 20 September 2009 was substantiated is confirmed;

2. The respondent's decision of 7 September 2010 imposing a sanction of reduction in two paypoints from Senior Constable paypoint 2.3 to 2.1 is set aside;

3. It is determined that the applicant suffer a reduction of one paypoint from Senior Constable 2.3 to 2.2 for a period of 12 months.

CATCHWORDS:

Police discipline – review of finding of improper conduct – whether evidence sufficient to prove case

Review of sanction – applicant one of the five police officers who ran nude around vehicle – different sanction 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 – whether failure to plead guilty to charge may affect level of sanction – circumstances in which a police officer should not suffer disadvantage by failing to accept charge – tribunal's duty to respect views of decision maker but to depart from them when it forms a clearly different view

Aldrich v Ross [2001] 2 Qd R 235 discussed

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Benjamin Staples was represented by Mr Schmidt, Counsel
RESPONDENT:	Deputy Commissioner Ian Duncan Stewart was represented by Mr McLeod, of Counsel

REASONS FOR DECISION

This is an application by a police officer to review a finding of misconduct. He was found to have been one of a group of police officers who engaged in a series of "streaking" incidents around a police bus on 20 September 2009. There is also an application, in the event that such finding is substantiated, to reduce the sanction that was imposed.

The respondent, Deputy Commissioner Stewart, on 7 September 2010, found the misconduct substantiated as charged, and imposed a sanction of reduction from Senior Constable pay point 2.3 to Senior Constable pay point 2.1 for a period of 12 months.

Preliminary point – Disposal of application under s 48 of QCAT Act

Directions were given at an early stage requiring the respondent to provide written submissions, followed by a response from the applicant and any reply by the respondent to be given by a stated date. Disputes ensued between the parties as to the adequacy of the respondent's initial submissions. It was alleged by the applicant’s legal advisors that the respondent had flouted the requirements of Disley v Queensland Police Service [2010] QCAT 530, and had failed to comply with the Tribunal’s directions.

The applicant accordingly brought an application under section 48 of the Queensland Civil and Administrative Tribunal Act

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 582
Decision Date: 19 September 2011

CaseChat Overview and Summary

The case of Staples v Deputy Commissioner Stewart involved a police officer, the applicant, who was found to have engaged in improper conduct and subsequently faced disciplinary action. The dispute centred on the sufficiency of evidence to substantiate the charge of improper conduct, as well as the appropriateness of the imposed sanction. The matter was brought before the court for judicial review, where it was necessary to determine whether the findings and sanctions imposed were lawful, reasonable, and just.

The legal issues before the court included the adequacy of evidence to support the charge of improper conduct, the consistency and fairness of the sanctions imposed on different participants in the incident, and the impact of the applicant's failure to plead guilty on the level of the sanction. The court had to balance the need for consistency in sanctions among the officers involved with the avoidance of a legitimate sense of grievance, drawing an analogy with the principle in Lowe v R. Additionally, the court needed to consider the tribunal's duty to respect the decision-maker's views while also having the authority to depart from them when it formed a clearly different view.

In delivering its judgment, the court confirmed that the evidence was sufficient to substantiate the charge of improper conduct against the applicant. However, it found that the sanction imposed was inconsistent with those given to the other officers involved and did not take into account the need for fairness and proportionality. The court set aside the original sanction and determined that a reduction of one paypoint was more appropriate. This decision was made to ensure consistency and to avoid creating a sense of grievance among the officers, while also acknowledging that the applicant's failure to plead guilty should not unduly affect the level of the sanction in this particular case.

The final orders of the court confirmed the finding of improper conduct, set aside the original sanction, and determined that the applicant would suffer a reduction of one paypoint from Senior Constable 2.3 to 2.2 for a period of 12 months. This outcome aimed to provide a fair and reasonable resolution to the dispute while upholding the principles of consistency and proportionality in police discipline.

Orders

Orders of the court

1. The respondent's decision of 7 September 2010 finding that the charge of improper conduct by the applicant on 20 September 2009 was substantiated is confirmed;

2. The respondent's decision of 7 September 2010 imposing a sanction of reduction in two paypoints from Senior Constable paypoint 2.3 to 2.1 is set aside;

3. It is determined that the applicant suffer a reduction of one paypoint from Senior Constable 2.3 to 2.2 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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