VG v Deputy Commissioner Barnett - [2013] QCAT 449

CITATION:

VG v Deputy Commissioner Barnett [2013] QCAT 449

PARTIES:	Mr VG (Applicant)
v
Deputy Commissioner Ross Barnett (Respondent)

APPLICATION NUMBER:

OCR360-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

6 June 2013

HEARD AT:

Brisbane

DECISION OF:

Joanne Browne, Member

DELIVERED ON:

22 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent’s decision made on 18 October 2012 to impose a sanction on Mr G being a demotion in rank from Inspector paypoint 5.3 to Senior Sergeant paypoint 4.4 is confirmed.

CATCHWORDS:

OCCUPATIONAL REGULATION – POLICE OFFICER – MISCONDUCT – whether sanction excessive – where conduct involved workplace harassment and lying – where subject officer was a senior member of the QPS – where evidence of remorse and good character – whether evidence of insight as to the serious nature of the conduct

Crime and Misconduct Act 2000, ss 219A, 219B, 219BA, 219C
Police Service Administration Act 1990, ss 1.3, 1.4, 7.2(1)
Queensland Civil and Administrative Tribunal Act 2009, ss 17, 24, 66

Aldrich v Ross [2001] 2 Qd R 235, cited
Re Bowen [1996] 2 Qd R 8, cited
Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161, cited
Crime and Misconduct Commission v McLennen & Ors [2008] QSC 023, cited
Deputy Commissioner Stewart v Dark [2012] QCA 228, applied
Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82, cited
Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66, cited
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, cited
Murray v Deputy Commissioner Stewart [2011] QCAT 583, cited
Ottaway v Commissioner of Police (Unreported, Queensland Civil and Administrative Tribunal, Member Richards, 15 March 2013), cited
Queensland Police Service v Compton (No 2) [2011] QCATA 246, cited
Wadham v Deputy Commissioner Stewart [2010] QCAT 578, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr VG, self represented

RESPONDENT:

Deputy Commissioner Ross Barnett represented by Ms Belinda Wadley, solicitor, of the Office of the Queensland Police Service Solicitor

REASONS FOR DECISION

Mr G has over 27 years of service in the Queensland Police Service (QPS). He was sworn in as a police officer on 4 July 1986 and promoted to Inspector on 4 May 2009. He has been awarded a QPS Award and a National Service Medal in recognition of his ethical and diligent service to the QPS.
In November 2011 Mr G was working in the Inspectorate and Evaluation Branch (IEB), Ethical Standards Command (ESC), Brisbane. He was responsible for conducting station inspections and ensuring administrative compliance with appropriate QPS procedures. He was, however, to be transferred to another region and his last day in Brisbane was 3 November 2011.
On the morning of 4 November 2011 Inspector B who was also working in the ESC, Brisbane found a can of dog food with a note stating “enjoy” on his desk.
A disciplinary investigation followed including interviews, under direction, of senior officers in Brisbane.[1]
[1]A failure to participate in a directed interview is grounds…

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: [2013] QCAT 449
Decision Date: 22 August 2013

CaseChat Overview and Summary

The case of VG v Deputy Commissioner Barnett involved a police officer, Mr G, who was subject to a disciplinary process following allegations of workplace harassment and dishonesty. The matter was heard in the Queensland Civil and Administrative Tribunal, where Mr G challenged the severity of the sanction imposed on him by the Deputy Commissioner of the Queensland Police Service. The sanction in question was a demotion from the rank of Inspector to Senior Sergeant, which Mr G argued was excessive given the circumstances and his personal circumstances.

The central legal issues the Tribunal had to address were whether the sanction imposed by the Deputy Commissioner was excessive and whether the evidence presented demonstrated a proper consideration of Mr G's remorse, character, and insight into the gravity of his misconduct. The Tribunal had to balance the need for maintaining discipline and standards within the police force against the mitigating factors presented by Mr G's evidence.

The Tribunal concluded that the Deputy Commissioner's decision was within the range of reasonable responses. The Tribunal found that the evidence supported the conclusion that Mr G's actions constituted serious misconduct, and that the demotion was a proportionate response. The Tribunal acknowledged Mr G's remorse and good character but ultimately determined that these factors did not sufficiently mitigate the seriousness of his conduct. The Tribunal also noted that the evidence did not clearly demonstrate that Mr G had gained insight into the serious nature of his misconduct. Consequently, the Tribunal upheld the decision to impose the sanction of demotion.

The Tribunal's decision confirmed the Deputy Commissioner's imposition of a demotion on Mr G, thereby rejecting his appeal. This decision highlights the importance of maintaining discipline within law enforcement agencies and the need for sanctions that reflect the gravity of misconduct, while also considering individual circumstances.

Orders

Orders of the court

1. The respondent’s decision made on 18 October 2012 to impose a sanction on Mr G being a demotion in rank from Inspector paypoint 5.3 to Senior Sergeant paypoint 4.4 is confirmed.

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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