Staples v Deputy Commissioner Stewart
[2011] QCAT 582
•19 September 2011
| 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 2009 for summary final decision in the applicant’s favour on both issues, based on the allegation that the respondent had “unnecessarily disadvantaged” the applicant.
A similar section 48 application was made in a related case. Reasons for dismissing that application have been published on 28 June 2011 (Murray v Deputy Commissioner Stewart [2011] QCAT (OCR237-10, 6 June 2011).
In the present matter, the Deputy Commissioner’s reasons for finding misconduct and for imposing the sanction were quite detailed. In our view it was reasonable for the respondent in his initial written submission to rely upon those reasons, assert that they contained no error, and in due course to reply after receiving the applicant’s submissions. To do so did not flout either the rules or the directions.
For the reasons contained in Murray, the applicant’s section 48 application is dismissed, and the review will continue in the usual manner.
Is the charge substantiated?
The charge was “that on 20th day of September 2009 at Capalaba your conduct was improper in that you exited a vehicle when it stopped in a public place namely at traffic lights in a state of full undress and ran around the vehicle.”
The applicant’s submissions are to the effect that the evidence does not support any finding to the requisite standard of satisfaction that the applicant was one of the police officers who ran around the vehicle in a state of full undress.
[10] This requires a review of the evidence as a whole, as contained in the 651 page investigation report and attached reports, interviews and exhibits.
[11] It is common ground that on 20 September 2009 the applicant and a number of other police and some civilians attended an organised buck’s party to celebrate the impending marriage of a police colleague. Two police minibuses were organised to transport 18 police personnel and two civilians to and from Raby Bay Marina. They departed from the Oxley complex at about 9am. At Raby Bay they boarded a catamaran which took them to Peel Island where they swam, sailed, jet skied, drank heavily and participated in other diversions. Upon their return to Raby Bay they boarded the minibuses to travel back to Oxley.
[12] The bus in question was driven by Sergeant Mallory who had been authorised to drive the participants in a police vehicle to the Marina, and to return them to Oxley in due course. He had not attended the buck’s party and was sober. The passengers however were heavily intoxicated and Sergeant Mallory observed that “walking was a challenge for some of them” (investigation report page 414).
[13] During the return journey there were five incidents at various intersections when the bus had to stop for traffic, or at traffic lights, during which occupants from the bus were seen to exit the bus, and run around it in a counter clockwise direction totally nude. Reports were made to the police authorities concerning some of these incidents by three civilians, Ms Godfrey, Mr Parrish, and Ms Flynn.
[14] Some of the occupants of the bus wore police caps, and it was apparent to the observers that the bus was a police vehicle. The attitude of those reporting the incidents ranged from concern to bemusement.
[15] The matter having been reported was quickly investigated by police, and also heavily featured in the media.
[16] There is no doubt that there were five "streaking" incidents during the journey.
[17] The issue in this case is whether the applicant was one of the participants.
[18] There were probably eight passengers in Sgt Mallory’s minibus, consisting of six police and two civilians who had been guests at the bucks party. The five police officers who allegedly participated in the runs, all of whom had codenames or nicknames, consisted of:
Sergeant Murray (“Fish”)
Senior Constable Blunn (“Sacka”)
Senior Constable Innskip (“Steady”)
Senior Constable Swords (“Cheech”)
Senior Constable Staples (“Chunks”)
[19] Constable Killen of the City Station Bicycle Squad also appears to have been on the bus, but was unable to provide any useful evidence. He may have been comatose, but at all events there is no allegation that he participated in any of the relevant conduct. The other persons involved agreed that he had not been a participant.
[20] The two civilian members who were present on the bus did not participate in any of the runs, and they declined to give statements.
[21] All five of the alleged participants claimed to be suffering from alcoholic amnesia ranging from severe to total. However the driver of the bus, Mallory, was sober and he is the principal witness. We may say that having read Mallory’s interview we have the impression that he was a reluctant witness who did not wish to implicate his colleagues, but having been involved in the whole affair which had been witnessed by members of the public, could not help giving at least some details of the various members’ involvement.
[22] The police disciplinary system reacted very quickly, and all suspects were interviewed on the following day, in the presence of Queensland Police Union Representatives. There was a serious lack of recollection in the versions provided by all of the alleged participants.
[23] The other four participants, Murray, Blunn, Inskip and Swords, all admitted participation and provided statements in the form of statutory declarations that would enable them to be prosecuted in the Magistrates Court for public nuisance. In due course they pleaded guilty to that offence and each was fined $300, in default six days imprisonment with no conviction being recorded.
[24] The present applicant however claimed to have no memory of having participated in the nude runs and accordingly did not provide a statement that would enable him to be prosecuted. On the same basis he contested the present disciplinary charge.
[25] There were five locations where nude running occurred.
At the intersection of Anthony and Elizabeth or Albany Streets;
At the intersection of Moreton Bay Road and Redland Bay Road;
At the lights at the Gateway intersections;
Past a mobile service station near Wishart shops;
Intersection of Kessels and Main Roads.
[26] In relation to the first incident, Mallory said that it was done by “two blokes”, but he was unable to say which ones. He could not say who initiated the disrobing but said that the call went around the bus to “nude it up” (record page 419) and “they just started taking their clothes off” and continued to disrobe as the bus proceeded along to Newcombe Road. They all ignored his protests and his advice to desist. He had no physical control over the opening of the side door of the bus, and whenever the bus stopped, he could not prevent the occupants from opening it and running around the bus. Presumably he was in a difficult position and unable to control the situation, though there is some evidence that he was seen laughing while the men misbehaved.
[27] Mallory further stated that the nude condition of the men remained for a substantial part of the trip, perhaps two thirds of it. “It wasn’t back till about Granard Road by the time they put their clothes back on” (record page 420-421). There were “three people in the bus who still had clothes on, myself included” (record page 421) seemingly himself and the two civilian members, although elsewhere he said it was “three or four” which would be consistent with Killen being the fourth non-participant. So far as the participants are concerned, he said that “all the rest of them took their clothes off and maintained a period of time with no clothes on” (page 422).
[28] In relation to the second incident, he said that “they jumped out and did it” and that on this occasion there were only two men (report pages 215-216, 428).
[29] In relation to the third incident he described Murray as a participant and “one other”.
[30] In relation to the fourth incident he said that the participants were “Chunks” and one other.
[31] In relation to the fifth incident he again described the main participant as “Chunks”. There is however some doubt as to whether on this final occasion the participants were totally unclothed or whether some item of clothing may have been present.
[32] During this fifth incident “Chunks” gave a “high five” to a female in another vehicle, but it is possible that by this time, the applicant had his shorts back on. This seems consistent with one of the incidents reported by the witness Ms Flynn.
[33] So far as the fifth incident is concerned, while boisterous drunken behaviour of this kind by a police officer is clearly improper, it does not satisfy the particulars of the charge which allege a state of full undress.
[34] It is therefore not possible to regard the evidence concerning the fifth incident as establishing the charge of misconduct against the applicant, although it has some relevance as a part of the overall course of conduct and it shows him to have been a willing participant in exiting the bus and engaging in exhibitionistic conduct.
[35] Mallory’s identification of Staples in relation to the fourth incident is in our view adequate. Counsel for the applicant sought to raise doubt by referring to the fact that Mallory had earlier stated in his interview that “Chunks” was Blunn (report page 434). However that was the product of a leading question from the interviewer – “Chunks, and that is Matt Blunn” – followed by the response “Matt Blunn yeah”. However earlier in his interview (page 412) Mallory had identified Blunn as bearing the nickname “Sacka”, and soon after his assent to the leading question mentioned above, when a clearer focus was on the incident, Mallory clearly corrected his earlier mistake and identified the present applicant as “Chunks”, that is to say the person who did that particular run.
[36] There is also supporting evidence from the other participants implicating the applicant as a full participant in the enterprise. In Blunn’s interview (page 195) he supplied a list of names including that of the applicant; Inskip named the applicant without qualification (pages 330, 333); Murray confirmed that “Staples exited the vehicle”; and Swords confirmed that “Fish, Steady and Chunks I believe ran around the bus” (page 258). Swords also said that everyone went around the bus at least once (page 267).
[37] There is also evidence from Mallory to the effect that “there were four incidents I can’t exactly tell you who did what lap but ah all the nude blokes went did, and did a lap” (record page 424).
[38] As earlier indicated, the applicant claimed not to be able to remember what he did during the bus journey. When asked by Inspector Orme what he could tell him about the allegations he replied “um I actually, I can’t tell you too much. I don’t actually have a great deal of recollection. I have been told that I was involved by other people that were involved and that ah therefore I believe I was involved. Um I’m not particularly proud of it and quite embarrassed but I can’t actually elaborate too much more on it..” (record pages 353-354). He later added “I don’t recall it but, but like I said I, I have been told that that’s what, what we did and that’s what we did.” When asked whom referred by “we” he identified himself, Blunn, Innskip and Swords (record page 370). He added that he had been told things “by people that I trust implicitly” and added “I don’t think I’ve had any massive black spots before when I have been drinking and it is a little bit concerning” (record pages 375 and 380).
Applicant’s Further Submissions on Substantiation
[39] Counsel sought to have Blunn’s identification of the applicant discounted by the fact that there had obviously been prior discussion between the suspects, which he submitted might suggest that he was not using his own recollection. At one point in his evidence Blunn said, “there was six of us that did it.. at different locations” (record page 217), which he submitted makes Blunn's evidence unreliable. However we do not think that these matters destroy the effect of his evidence and his unqualified nomination of the applicant as a participant who “did a nude run around the bus” (record page 195).
[40] Swords similarly identifies the applicant (record page 258).
[41] The impression we have is of a group of police officers saying as little as possible about an incident that they quickly regretted and would like to have forgotten, who however provided minimal details that they believed could not be denied.
[42] We are not persuaded by the applicant’s submissions that the evidence implicating the applicant, given by other participants in the incident, ought to be disregarded.
[43] A further submission warranted to the effect that the applicant had suffered an injury during a water skiing incident during the day and that he would have had an obvious limp which any observer of the incidents would have noticed. The absence of such an observation is said to exclude him as a participant.
[44] In our view if the applicant had thought that he was physically unable to have done what was alleged, he would surely have mentioned this during the interview. The injury was not significant enough for him to seek immediate medical attention, although he says he took pain killers. The evidence also shows that after the incidents in question he went from Oxley to the Normanby Hotel to continue festivities. There is evidence that he attended a medical practitioner the following day, but the medical report that has been tendered does not suggest any particular level of injury or deal with any question of seriousness. We do not think that this particular submission assists the applicant.
Conclusion on substantiation of the charge
[45] There are some inconsistencies in the evidence, which is hardly surprising, but its combined effect is that of a strong and satisfactory case. The evidence establishes to the required standard that the applicant was a willing participant in the enterprise and that he personally made his run during the fourth incident.
[46] We therefore find that the charge has been substantiated. The respondent's decision should be affirmed.
Review of the sanction
[47] The sanction imposed on the applicant was a reduction of 2 pay points from Senior Constable pay point 2.3 to Senior Constable pay point 2.1.
[48] When this case was argued before us, all persons involved in the incident, except Murray, had been finally dealt with under the disciplinary system, and Murray's application to review his sanction was pending. In due course it came on before us. We have delayed forming an opinion on the appropriate sanction in the present matter until an overall view could be had of the consequences to all the participants, including Murray. All matters arising to the same episode, and it is important to examine the sanctions that were imposed upon the other participants, in order to avoid any sense of grievance through disparity.
[49] Sergeant Mallory was charged, although on a different basis to the actual participants. His involvement was in the nature of condonation and a failure to assert proper control. It was ordered that he be demoted and suffer a reduction of 2 pay points. However, importantly, that penalty was suspended. In other words, provided that he complied with the terms of the suspension for the designated period, he would not suffer any actual loss of salary.
[50] In any event it is the other participants with whom a more relevant comparison should be made. Of these, the present applicant and Murray were the only ones to have orders made against them that were not suspended. The other three, Blunn, Innskip and Swords, were each reduced by 2 pay points but in each case the order was suspended.
[51] Of the five participants, Murray’s conduct was the most serious. Murray was the senior officer, a Sergeant, and the respondent Deputy Commissioner expressly mentioned that this made his conduct all the more serious and called for a more severe sanction. We agree with that approach. Furthermore the evidence of Mallory suggests that his participation was slightly more enthusiastic than that of the others. On one of the occasions he is described as having in effect sprawled across the windscreen in the course of running around the vehicle.
[52] The present applicant was the second most junior officer involved, and so far as the quality of his conduct is concerned it was comparable with that of Blunn, Innskip and Swords. Indeed the only distinguishing factor between him and them is that they made clear admissions of guilt from the outset and filled out the necessary declarations that would enable them to be charged and dealt with in the Courts. In consequence each of them was convicted and fined $300, with a direction that the conviction be not recorded.
[53] The sanctions that the respondent imposed upon each of Blunn, Innskip and Swords were substantial (two paypoint productions each), but they were suspended on conditions. The record of their misconduct will remain permanently, and we respectfully agree that this was a balanced response to the level of conduct that was involved.
[54] In what respect then should the present applicant be dealt with more severely than Blunn, Inskip and Swords?
[55] In the area of disciplinary proceedings the main relevance of an early indication of acceptance of the charge is that it indicates honesty and remorse, and a willingness to face up to obligations. We would however be reluctant to try and introduce any system comparable to that in the Criminal Courts where substantial and measurable discounts are allowed for early pleas of guilty. The main relevance of such conduct in this disciplinary jurisdiction is its indication of remorse and responsibility.
[56] Counsel for the applicant submitted that the applicant contested the present matter as he had significant doubts as to whether he had participated in the nude runs. While we find it hard to credit that he suffered total amnesia of the bus trip when he could remember events before and after it, it is quite possible that he held doubts about the extent of his own participation. He was entitled to put the charging authority to proof, and in the present circumstances he should not be penalised for this.
[57] However the effect of the course that he chose to follow was that, unlike the other participants, he did not suffer the collateral disadvantage of being dealt with by the Courts. Their convictions, fines and public disgrace would have militated to some extent against the imposition of further heavy sanctions against them.
[58] Thus, if one were to pursue parity in all matters, the sanction for the present applicant (who did not suffer a conviction or a $300 fine, and who did not make the commendable gesture of those officers in submitting to public prosecution) should be more severe than that of these other participants.
[59] In mitigation it was pointed out that this was off duty conduct, and a product of intoxicated young men urging one another into reckless conduct. In the event no actual harm was done, although two members of the public expressed concern for what their daughters may have seen. On the other hand, there is evidence that at least for a part of the time their hands were “cupped over their private parts” and that the participants were laughing and having a good time. Mr Parish said that his girlfriend thought that it was quite funny. Only one of the members of the public who reported the incident said otherwise, and her own reaction was that they were “idiots”.
[60] Conduct of this kind of course cannot be tolerated especially in an organisation such as the police force. A metaphorical slap on the wrist is not an appropriate response. But at the same time one needs to keep a sense of proportion and not over-react to an incident which was sensationalised and which was undoubtedly embarrassing to those in the police hierarchy who strive to keep the police force held in high public respect. We venture to think that most people in our society would understand that very odd things tend to happen after bucks’ or hens’ parties and make at least some allowance for characteristic misbehaviour that sometimes follows the excessive intake of alcohol and the over-excitement of a special occasion. We do not in the least condone the conduct. Standards must be maintained, but equally we do not think we are yet a nation of Mrs Grundys. The incident was embarrassing to those in charge of the police force, but this isolated incident in our view was of the kind that raises eyebrows rather than seriously undermines the public’s confidence in the police force. We do not think that it calls for condign punishment, although there must be an element of deterrence in the sanction in order to discourage like-minded conduct. However in the spectrum of misconduct that one sees in this Tribunal, the present conduct does not lie anywhere near the more serious end.
[61] The applicant has a flawless service history with no previous misconduct, and has demonstrated insight into the seriousness of his behaviour, and we are well satisfied that he has learnt his lesson and that nothing like this will reoccur. The incident has been extremely embarrassing to him and his family. It was the subject of extensive media coverage and adverse public comments by the Commissioner. The applicant was stood down for an extended period and subjected to an investigation and a disciplinary process which took almost a year to complete. He was a junior officer in the group, having no supervisory responsibility.
[62] Unsurprisingly there are no real precedents for an appropriate response to such activity. Speaking generally we would think that some loose comparison might be made on level of seriousness with off-duty drink driving by a police officer, although in one important respect drink driving would be more serious because of the risk of actual serious bodily harm to a member of the public.
[63] Reference was made to Assistant Commissioner South Eastern Region v Sergeant W G, an internal decision of a disciplinary officer given on 30 October 2009. It involved a police Sergeant who was convicted of a public nuisance in that he behaved in an obscene manner. While off duty he went to a public toilet in Kingston, started to talk to another male (who happened to be a covert police officer), stated that he was “out cruisin”, solicited sexual activity, moved to a “more private area” and commenced to perform obscene actions. He was convicted in the Magistrates Court and fined $100 with no conviction recorded. He was then charged with two disciplinary offences, one, committing a public nuisance of behaving in an obscene manner, and, two, being convicted of the offence of public nuisance, and in doing so, bringing potential harm to the integrity and reputation of the Queensland Police Service. On each matter, he was fined 1 penalty unit ($100) by the disciplinary officer.
[64] In some respects the W G case is more serious than the present matter, and in other respects less serious.
[65] The W G case at least gives an indication of what has been happening to date in a matter of arguably comparable seriousness. We note that the penalty imposed on Sergeant W G was considerably less than that imposed on the present applicant.
[66] In any event we are not bound by arguably comparable decisions of disciplining officers. The sanction in W G may well have been too lenient. The proceedings before this tribunal comprise the only external review of police misconduct, and are the means by which a public perspective may be brought into account in such matters. The comments made in Aldrich v Ross (2001) 2 Qd R 235, 257, with respect to the former procedure in the misconduct tribunals are equally applicable here.
The provision of a system which permits one external public review of the disciplinary decision is not only the protection against a wrong or an acceptable decision, it is also the provision of a source which can be expected to bring a perspective to bear from the public point of view.
[67] It follows that if the tribunal comes to a different view after giving due respect to the views of the original decision maker, it is bound to impose the sanction that seems right to it. There is no lack of respect involved when this Tribunal comes to a different conclusion than that of the original decision maker.
[68] Sergeant Murray was initially subjected to a much greater penalty than any of the others, namely demotion and the loss of 4 pay points. He brought review proceedings against that sanction and in due course it was heard by us. We have delayed our decision in the present matter until Murray had been determined in order to seek relative consistency in the sanctions imposed on all participants, and avoid any legitimate sense of grievance among them based on disparity.
[69] In the event we have reduced the sanction against Murray to a loss of two pay points for 12 months. Murray’s counsel provided details suggesting that the loss of four pay points was equivalent to a $28,825 loss over the next five years, and that there would be further loss because of the deferment of his entitlements. Counsel for the decision maker contended that the loss would be $21,500. We suspect that the actual loss from a demotion and loss of four pay points, and career postponement might with appropriate calculations be shown to be even greater than that contended. However even taking a median figure of $25,000 it is obvious that it amounts to a very severe penalty. Similar exercises in relation to a reduction of two pay points suggest that in Murray's case it could be compared to a fine of $12,500, which is still a substantial penalty. We appreciate that these are very broad calculations. They are mentioned as they are the only material supplied to the tribunal which can indicate the practical effect of the imposition of paypoint reductions.
[70] The order against the present applicant for the loss of two paypoints salary was in our view too severe. Its financial implications are that there is an immediate loss of $3,258 in the first year, with continuing losses into the distant future. It appears to be the equivalent of a fine in the range of $10,000-$14,000. Whatever the correct figure, it is the same as that which has finally been imposed upon Murray, and of course as Staples’ conduct is not a serious as that of Murray the sanction must be reduced.
[71] Our jurisdiction does not allow the imposition of a fine of more than $200, and that would clearly be an inadequate sanction.
[72] Consistently with the fact that Murray's conduct was more serious than that of this applicant, and that the sanction to be imposed on the applicant needs to be heavier than that imposed on Blunn, Inskip and Swords, we conclude that the appropriate sanction in the present matter is a loss of one paypoint in salary for a period of 12 months.
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