Tolsher v Commissioner Stewart
[2013] QCAT 47
| CITATION: | Tolsher v Commissioner Stewart [2013] QCAT 47 |
| PARTIES: | David Tolsher (Applicant) |
| v | |
| Commissioner Ian Stewart (Respondent) |
| APPLICATION NUMBER: | OCR409-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member |
| DELIVERED ON: | 24 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to stay the decision of Commissioner Stewart is refused. |
| CATCHWORDS: | POLICE DISCIPLINE – application for stay of order of demotion Queensland Civil and Administrative Tribunal Act 2009, ss 20(1), 22(4), 32 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 |
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 (QCAT Act).
REASONS FOR DECISION
In the early hours of 12 August 2012 Sergeant Tolsher whilst off duty drove home intoxicated from a function. He was pulled over by police, undertook a breath test which resulted in a reading of .15.
He was charged with drink driving and pleaded guilty in the Magistrates Court on 20 August 2012. He was convicted (though no conviction was recorded), fined and disqualified from driving for six months.
Only three weeks prior to this incident he had received a promotion to the rank of Senior Sergeant Officer in Charge Oxley District Child Protection and Investigation Unit.
A disciplinary hearing was conducted in relation to the incident and Commissioner Stewart found the following charge of misconduct against Sergeant Tolsher was substantiated:
That on the 12th day of August 2012 at Brisbane your conduct was improper in that you, whilst off duty:
(a) drove a private motor vehicle whilst under the influence of alcohol;
(b)effectively made requests and comments to Constables Surman and Cairns to avoid being required to submit to a breath analysing test.
The following particulars were provided:
Investigations have identified that in relation to matters one (a):
·at about 1.45am on 12 August 2012 you were observed by police from Indooroopilly station driving erratically in a black Lexus on Milton Road Brisbane;
·you were off duty at the time and had attended a social function in the City;
·you were subsequently intercepted by police and upon request, provided a roadside breath test reading of .16%;
·at about 2.54am, upon requirement made and direction given, you provided a specimen of breath for analysis on an approved breath analysing instrument that resulted in a certificate being issued for a breath alcohol concentration of .150 grams of alcohol per 210 litres of breath (.15%);
·you were issued with a Notice To Appear at the Brisbane Magistrates Court on 10 September 2012;
·you brought forward this matter for an early plea of guilty on Monday 20 August 2012; and
·you were subsequently found guilty, fined $700.00 and disqualified from driving for 6 months. No conviction was recorded.
In relation to matter one (b):
·On 12 August 2012, you, when asked, identified yourself as a Detective Senior Sergeant and Officer in Charge of the Oxley Child Protection Unit; and
·you made numerous requests and comments to Constables Surman and Cairns to avoid being required to submit to a breath analysing test. For example:
·“I’ll walk away for two hours, three hours”; and
·“why, can’t you, you know its going to happen, its going to happen, my jobs going to be fucking put on ……. I wouldn’t do that to youse guys”.
In respect to matter one (a) Commissioner Stewart imposed a sanction that Sergeant Tolsher be demoted in rank from Senior Sergeant pay point 4.1 to Sergeant pay point 3.4. For matter one (b) Sergeant Tolsher was demoted in rank from Senior Sergeant pay point 4.1 to Senior Constable pay point 2.9. This penalty was suspended for two years on the condition that he:
· Not commit any further acts of misconduct;
· Be demoted in rank from Senior Sergeant pay point 4.1 to Sergeant pay point 3.1 and will be eligible to progress pay points under normal industrial arrangements;
· Within the next three months participate in an information session delivered by the Ethical Standards Command about the importance of ethical decision making and professional conduct.
Sergeant Tolsher accepts that matter one (a) is substantiated and amounts to misconduct.
He does not accept that matter one (b) is substantiated. Whilst he accepts he spoke the words as particularised he submits that as the matter alleges the words were said ‘to avoid being required to submit to a breath analysing test’, it would be necessary to establish intent. He said the evidence does not establish intent because he was intoxicated.
Sergeant Tolsher has applied to review the decision imposing the sanction of demotion on the basis that the matters are not substantiated by the evidence and the sanction is manifestly excessive.
He seeks a stay of the decision pending the outcome of the review.
The Law
The Tribunal has power to grant a stay in review proceedings[1]
.. only if it considers the order is desirable having regard to
·The interests of any person whose interest may be affected by the making of the order or the order not being made;
·Any submissions made to the Tribunal by the decision maker for the reviewable decision; and
·The public interest.
[1]QCAT Act, s 22(4).
It is accepted as annunciated by the Honourable James Thomas AO QC in Deputy Commissioner Stewart v Kennedy[2] that in deciding whether to grant a stay questions to be addressed include the general principles of whether the applicant has an arguable case and does the balance of convenience favour granting the stay which in turn includes the consideration of whether the refusal of the stay would render the appeal nugatory, the impact of the stay on both parties and the public interest.
[2] [2011] QCATA 254.
The effect of s 22(4) is to add a requirement to these ordinary principles.
Arguable Case
In considering whether the applicant has an arguable case, as observed by Member Thomas in Kennedy[3]
it is not incumbent on the Court or Tribunal that hears the stay application to undertake a detailed assessment of the prospects of success … but it should always be possible at least to discern whether the applicant has an arguable case.
[3] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
On review the Tribunal will be determining what is the correct and preferable decision.[4]
[4] QCAT Act, s 20(1).
Sergeant Tolsher argues that the decision was not correct because:
· Commissioner Stewart failed to address significant arguments relating to financial detriment, precedent and comparisons with other professions.
· Commissioner Stewart’s decision in imposing a sanction of demotion is manifestly excessive.
Commissioner Stewart submits that there is no arguable case in considering whether the sanction of demotion was manifestly excessive in that in imposing that sanction he applied the matrix of indicative sanctions developed in 2009 for disciplinary matters involving police officers prosecuted for drink driving offenses.
Sergeant Tolsher argues that the Tribunal is not bound to follow the application of the matrix. It is correct that the Tribunal has this discretion however it is highly unlikely that the Tribunal would have no regard to the matrix. It is noted however that within the matrix Commissioner Stewart had a discretion to demote or not. It was open to him to only reduce pay levels.
Therefore it does not follow that simply because there was an application of the matrix there can be no arguable case. Sergeant Tolsher submits that Commissioner Stewart failed to take into account his submissions about comparative cases.
I do not accept that the Commissioner did not consider the previous QPS decision involving drink driving QPS v Compton.[5] It was given quite substantive consideration by the respondent as set out in his reasons.[6]
[5] [2011] QCATA.
[6] Respondent’s submissions dated 9 January 2013 at [17].
I do accept that the Commissioner’s reasons do not indicate whether or not consideration was given to disciplinary sanctions in other professions for example lawyers and teachers.
I do not accept the Commissioner’s submission that such cases can never provide a valid comparison.
As to whether a consideration of those cases would produce a different result is far from established but Sergeant Tolsher need only present an arguable case.
I accept there is an arguable case on review. The question then is where does the balance of convenience lie.
Member Thomas made specific observations in Kennedy with regard to the balance of convenience in stay applications concerning police disciplinary proceedings. Relevantly he said
But of far greater significance is the public aspect of staying a dismissal in police disciplinary proceedings. This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out of the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1966] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public ‘are in a class different from cases involving no more than the suspension of the operation of order affecting private litigants only’.
Member Thomas also referred to other cases which dealt with disciplinary proceedings involving lawyers[7]. He said of those cases
they were decided in the context of a disbarment of solicitors, but the principles mentioned therein have relevance in all professional disciplinary proceedings of the present kind which involve the maintenance of public confidence in the police force which is of course a basic unit in the maintenance of law and order … in such circumstances a stay should not likely be granted.
[7]Robb v The Law Society of the Australian Capital Territory [ACT 634 1996] and Legal Services Commissioner v Baker [2005] QCA 482.
In that case the police officer had been dismissed and Member Thomas commented ‘in my view cogent reasons are needed before staying an order of dismissal of a police officer following a regular investigation and determination’.
Sergeant Tolsher here submits that the fact that he was not dismissed, distinguishes his position from Member Thomas’s comments in Kennedy. It is submitted that there is no need to protect the public from Sergeant Tolsher and therefore it is appropriate that a stay be granted.
I agree with the Commissioner’s submissions that Member Thomas’s comments about protection of the public are not confined to the physical protection of the public but rather the correct focus is upon the broader consideration of the protection of public namely the maintenance of public confidence in the police force.
I agree that having regard to the facts of the case the drink driving and the conversation with intercepting officers requesting he be given time for breath testing, public confidence would be eroded if the demotion disciplinary action was stayed.
A principle argument of Sergeant Tolsher on the balance of convenience is that it weighs in his favour because once he is demoted his newly acquired position of Senior Sergeant Officer in Charge of Oxley District Child Protection Investigation Unit will become vacant and will be filled and he will not be able to return to the position if he is successful on the review.
QPS have advised Sergeant Tolsher that ‘the QPS position at this stage is that whilst no undertaking has been given to keep Mr Tolsher’s position vacant (including not readvertising the position) there has been no decision made to permanently fill it’.[8]
[8] Applicant’s submissions dated 11 January 2013 at [29].
Sergeant Tolsher asked the Tribunal to accept that because his application may not be heard until later this year that it is a matter of course that his position will be filled prior to the matter being determined.
I do not accept that the Tribunal should accept as a matter of course that it will be permanently filled and that he would not be able to return to the position. From the response from the QPS it is possible that if the position is filled it may not be a permanent appointment.
I accept the Commissioner’s submissions that the prospect of public confidence in the police force being eroded if the demotion disciplinary action is stayed outweighs the possible disadvantage to Sergeant Tolsher if his position was filled prior to the hearing and the determination of the review.
This is not a case where it is desirable to make an order staying the decision.
The application for stay is refused.
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