Swenson v Assistant Commissioner Les Hopkins
[2014] QCATA 318
•3 October 2014
| CITATION: | Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318 |
| PARTIES: | Alec Swenson (Applicant/Appellant) |
| v | |
| Assistant Commissioner Les Hopkins (Respondent) |
| APPLICATION NUMBER: | APL106-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon JB Thomas AM QC, Member |
| DELIVERED ON: | 3 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The decision of 28 January 2014 is set aside. 3. In its place it is ordered that the application for extension of time to file the application to review the respondent’s decision is granted and time is extended to 27 February 2014. |
| CATCHWORDS: | Disciplinary proceedings – police – parity principle practice – extensions of time Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Braunberger v Hopkins [2014] QCAT 34 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This is one of three similar applications for leave to appeal against a decision by a QCAT Member refusing to extend time for the commencement of a review of a police disciplinary decision.
The relevant circumstances include the conduct of five police officers (including the three applicants/appellants) who were charged with various acts of misconduct arising out of an incident in Fortitude Valley on 12 September 2010.
The basis of each application is a perceived lack of parity in the sanction imposed on the applicant.
To enable necessary comparisons to be made it is necessary to examine the conduct of all of the applicants and of other police officers who are said to have received disparate treatment.
The relevant circumstances have been detailed in the reasons for judgment in Braunberger v Hopkins [2014] QCAT 34. To the extent to which those reasons recite the circumstances they are to be taken as incorporated in these reasons.
This appeal raises the same points as those in Braunberger, and contains the same submissions. It is not suggested by either side that there are any valid distinguishing features in the present appeal.
The delay was the same and virtually identical reasons have been advanced to attempt to explain it.
In the present matter the misconduct alleged against Swenson was described as follows in the charge “you were the shift supervisor and senior officer at the Indooroopilly police station when first year Constable Perks showed other police officers a photograph of a semi naked unknown female... you admitted viewing the photographs of the semi naked female and being made aware of the circumstances under which the photographs were obtained. At that time you told Constable Perks to ensure the photograph does not get sent to anyone else, does not end up on Facebook and to delete the photograph. You further admitted that on your next shift at the Indooroopilly police station you became aware that first year Constable Perks was showing other police officers the photo of the semi naked unknown female. At no time did you... report the misconduct of your fellow police officers.”
For this he was reduced in paypoint from 2.6 to 2.4 with no advancement to 2.5 for 12 months from the imposition of the sanction. This, it has been estimated, subjects him to an estimated financial loss between $8,000 and $13,000.
The gravity of Swenson’s conduct seems to be the least of the three, and very substantially less than that of the principal offender Constable Garth whose sanction has ultimately been reduced to a level of loss around $6,000.00.
The perceived disparity is obvious.
The differing factual circumstances pertaining to Constable Swenson and the other police officers, including Constable Braunberger, are understood, but the circumstances relevant to the question of extension of time for a review are in principle indistinguishable from those pertaining to Constable Braunberger. The application of the principles stated in Braunberger lead to the same result here.
A similar extension of time should therefore be granted to Constable Swenson.
It will be ordered that:
1. Leave to appeal is granted.
2. The decision of 28 January 2014 is set aside.
3. In its place it is ordered that the application for extension of time to file the application to review the respondent’s decision is granted and time is extended to 27 February 2014.
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