Watson-Paul v Acting Assistant Commisioner Kerry Dunn
[2013] QCATA 245
•28 August 2013
| CITATION: | Watson-Paul v Acting Assistant Commisioner Kerry Dunn [2013] QCATA 245 |
| PARTIES: | Larry John Watson-Paul (Appellant) |
| v | |
| Acting Assistant Commisioner Kerry Dunn (Respondent) |
| APPLICATION NUMBER: | APL081-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 21 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Margaret McLennan, Member |
| DELIVERED ON: | 28 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – POLICE OFFICER – DISCIPLINARY PROCEEDINGS – MISCONDUCT – where the applicant was detained and arrested – where it was alleged the applicant provided false and misleading information in response to questions about the events leading up to the arrest – where internal police disciplinary proceedings commenced – where the respondent determined that it was appropriate to impose penalties on the applicant for that conduct – where the applicant was temporarily demoted, received a reduction in salary and ordered to undertake community service – where the applicant sought to review that decision – where the Tribunal affirmed the respondent’s decision regarding the conduct which led to the arrest, but determined that the allegation that the applicant provided false and misleading information was unsubstantiated – where the applicant seeks to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | No appearance by or on behalf of Mr Watson-Paul |
| RESPONDENT: | Mr S A McLeod of Counsel for the respondent |
REASONS FOR DECISION
Justice Alan Wilson, President
This appeal arises out of events which occurred in the early hours of 24 November 2007 when Mr Watson-Paul was a serving police officer.[1] It is not in dispute that around 3:00 am on 24 November 2007 Mr Watson-Paul, then off-duty and in company with another off-duty officer, entered the Fortitude Valley Police Beat and, while quite drunk, said and did things which led to him being detained and arrested.
[1]He is no longer a serving member of the Queensland Police Service.
Mr Watson-Paul was on sick leave at the time and a second charge involved an allegation that he should not have been out and about, and drunk, while on that leave. A third charge concerned an interview in March 2009 about those events and an allegation that Mr Watson-Paul wrongly denied, or was untruthful about, the event itself.
Internal police disciplinary proceedings followed. On October 2010 the respondent, an acting Assistant Commissioner of the QPS, determined that the first and third matters were substantiated and imposed penalties.
The penalty relating to the event at the Fortitude Valley Police Beat was a demotion for 12 months which was, however, suspended for 24 months contingent upon Mr Watson-Paul not committing any further acts of misconduct within that period of two years and, also, undertaking 200 hours of community service at a police youth club. The penalty for the third charge was a reduction in his salary of two pay points.
Mr Watson-Paul brought review proceedings in QCAT which were heard and determined by QCAT Senior Member Ms Clare Endicott and QCAT Ordinary Member Mr Charles Brabazon QC on 13 January 2012. At the conclusion of the hearing both Members gave oral reasons for their decision refusing to alter the decision in respect of the first charge, but setting aside the finding in respect of the third. In the result the remaining sanction was, only, the demotion for 12 months which was, of course, suspended for 24 months.
One aspect of the review proceedings in QCAT needs to be mentioned. One of the Tribunal members, Mr Brabazon QC, is a retired District Court judge. Under s 142(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) an appeal may only be brought to the QCAT Appeal Tribunal if the original QCAT Tribunal was not constituted by a judicial member. Under the definitions in Schedule 3 to the QCAT Act, that term includes a former judge but only if the judge is nominated by the President to sit in that capacity. Mr Brabazon QC is an ordinary member of QCAT. He was not appointed as a member of the original tribunal for the review proceeding in this matter as a judicial member, but, rather, as an ordinary member and his presence on the Tribunal bench is no impediment to this appeal.
By earlier directions of the Appeal Tribunal the parties were ordered to exchange written submissions. Despite notice of the hearing Mr Watson-Paul did not appear. Attempts, on the day of hearing, to contact him by mobile phone were unsuccessful.
His written submissions appear to involve a challenge to the Tribunal’s reasons involving its findings of fact, or mixed law and fact and, therefore, he requires leave to appeal under s 142(3) of the QCAT Act.
Doing the best I can with Mr Watson-Paul’s written submissions he appears to assert that any misconduct at the Fortitude Valley Police Beat in the early hours of 24 November 2007 was the immediate product of provocation from a police officer on duty there; involved his unlawful arrest; and, involved what he describes as a welfare issue concerning his personal health problems.
He also appears to allege that, in the original police disciplinary proceedings, he was not allowed to ‘… test witnesses … to test their memories of the incident’; that the QCAT Tribunal formed a conclusion which was wrongly ‘… weighted to the Respondents witnesses’, and failed to address inconsistencies in their evidence; and, failed to address the ‘… unlawfulness of the arrest’.
Mr Watson-Paul says the appeal should be allowed because the original QCAT decision is not ‘… complete as to all the available evidence to test the credibility of witnesses, the facts and circumstantial evidence of the case has not been drawn upon in coming to that conclusion’; and, that a different conclusion was reached by another QCAT Senior Member in proceedings concerning Detective Senior Constable Lawler, who was the other off-duty officer in company with Mr Watson-Paul when he entered the Fortitude Valley Police Beat.
In that decision Ms O’Callaghan, a QCAT Senior Member, heard and determined review proceedings against Mr Lawler in his favour. [2]
[2]Lawler v Assistant Commissioner, Queensland Police Service [2013] QCAT 313.
Mr Watson-Paul’s submissions do not, with respect, make it entirely clear how and why he relies upon that decision in this application for leave to appeal, and his appeal. In any event, for reasons which follow there is no reason why that decision should affect the outcome here which must involve a refusal of leave to appeal.
That conclusion is compelling, for several reasons. First, in the original proceedings Mr Watson-Paul made a number of significant admissions. He admitted that at around 3:15 am on 24 November 2007 he entered the foyer of the Fortitude Valley Police Beat with Detective Senior Constable Lawler and engaged in a loud and aggressive conversation with him and then with two other police constables on duty there. Those conversations occurred when the front door of the Police Beat was open, with direct access onto the footpath so that what was said was audible to members of the public in proximity to the Beat.
Mr Watson-Paul admitted:
a) That the initial conversation included derogatory statements about the police service and the use of obscene language, including him saying the words: ‘You have a fucked job be careful who’s watching your back. Fucking cunts’.
b) Mr Watson-Paul saluting at the back of a police sergeant who entered the Beat premises shortly afterwards.
c) During Mr Watson-Paul’s subsequent arrest he uttered a number of phrases directed at the officers who were attempting to detain him including these words: ‘You’re all fucked now. You don’t know what you’ve done. You’ve gone too far. I’m a fucking copper. You’re fucked. I’m a copper. You’re all fucked now. Heads are going to roll now. You cunts have really fucked up’.
d) Following his arrest Mr Watson-Paul attempted to negotiate his arrest and said to another police officer: ‘Come on man just let me walk outta here and we’ll forget everything’.
Other particulars of the first charge were not admitted but, in the course of the hearing before them Mr Brabazon QC and Ms Endicott saw a videotape of the event, albeit without any sound. Their conclusions, based upon the video and evidence from officers on duty at the Beat, were that Mr Watson-Paul used ‘strong and foul language’ constituting ‘verbal attacks’ upon the officers on duty there, and that there was a ‘considerable struggle’ before Mr Watson-Paul could be subdued.
In the course of his reasons Mr Brabazon QC said:
It is altogether too unpleasant [a] task to read out literally all the words that are said to have been passed across the counter of the police station and it may be sufficient to give an indication of their strength… What is important of course is to keep attention on the overall effect of the events of the evening. It said that he made derogatory comments in relation to the Queensland Police Service. It is accepted really by Mr Watson-Paul, as I understand it, that he did do that… His particulars then suggest that he was disrespectful towards the police officers behind the front counter.[3]
[3]Transcript of Proceedings, Larry John Watson-Paul v Acting Assistant Commissioner Kerry Dunn, OCR275-10, 13 January 2012, 4.
Later in his oral reasons Mr Brabazon QC said:
… it should be accepted that there was misconduct at the police station[.] [I]t means that the conviction and finding for that and the punishment set out in the Assistant Commissioner’s report stands. I see no reason to interfere with that level of punishment.[4]
[4]Ibid 10.
Senior Member Endicott said: ‘… I agree with the outcome and findings of Mr Brabazon’.
While terse, these reasons of the Tribunal are sufficiently clear for it to be said that the learned Members, after viewing the video and hearing the evidence, were satisfied that in the course of the events within the Police Beat on that night:
a) Constables Brocket and McKerchar, who were on duty, attempted to ignore Mr Watson-Paul’s initial remarks; Constable Brocket then directed him to leave the Beat; Mr Watson-Paul reacted aggressively and said to Brocket and McKerchar: ‘What! Get a fucking personality. You’re cunts, get a fucking personality, you all need to get personalities’.
b) Sergeant Finch, Constable Brocket and other officers entered the foyer from the precincts of the Police Beat; Sergeant Finch took hold of Mr Watson-Paul’s right arm and informed him that he was under arrest and then, with other officers, attempted to lead Mr Watson-Paul into the precincts of the Beat; he pulled away from them and moved towards the foyer door; four officers were involved in attempting to restrain him by pulling him to the ground; that he struggled with those officers for about 30 seconds before he was successfully restrained; that even while restrained on the floor Mr Watson-Paul continued to resist arrest; that while being restrained he was directed by Constable Brocket to stop resisting but failed to comply with that direction; and, that he was then taken into the precincts of the Beat but continued to attempt to resist the officers restraining him.
Mr Watson-Paul filed two sets of written submissions in the Appeal Tribunal, dated 2 October 2012 and 31 July 2013. In the latter he does, with respect, a better job of attempting to identify those findings – whether of fact, or law, or mixed findings – he seeks to criticise in this appeal. It is appropriate, particularly in his absence at the ultimate hearing, to address them.
The first concerns the outcome of other QCAT proceedings concerning disciplinary proceedings against his companion on the night. The proceedings against Detective Senior Constable Lawler, and the decision of QCAT Senior Member O’Callaghan mentioned earlier, concerned two charges of misconduct against Lawler and proceedings he brought in QCAT to have those charges, also the product of an internal police disciplinary hearing, set aside.
The first charge was that on the night in question his behaviour did not meet the standard of conduct the community reasonably expected of a police officer in that he made derogatory comments about the Queensland Police Service while within the Police Beat premises; stayed within those premises after being given a lawful direction by Constable Brocket to leave; told another police officer that he was, himself, a police officer and demanded that Mr Watson-Paul be released; and made, threats in reference to the QPS disciplinary service.
The second matter concerned a subsequent interview on 6 April 2009 about those earlier events during which, it is alleged, Mr Lawler provided information which he knew, or should reasonably have known, was false and misleading.
In her detailed reasons the learned Senior Member observed that the first matter was no longer being pursued by the acting Assistant Commissioner and it was accepted that it was not substantiated. Hence, the review proceeding in QCAT only involved the subsequent interview, in 2009. As the learned Senior Member’s reasons show, because the evidence revealed that Mr Lawler was only present for about one fifth of the time of the events surrounding Mr Watson-Paul’s behaviour in the Police Beat and subsequent arrest, and because the video evidence around Mr Lawler’s involvement was unclear, it could not safely be concluded that the information he gave during an interview in 2009 was false or misleading and that charge was set aside.
Nothing in the learned Senior Member’s decision touches the issues in the proceedings involving Mr Watson-Paul, or is germane to his application for leave to appeal here.
Next, Mr Watson-Paul says he wishes to challenge Tribunal ‘findings’ about certain elements of the first charge – in particular, what he calls findings 1(a), (c), (e) and (f). That can only be a reference to particulars of that charge which refer to the use of obscene and insulting language to on-duty officers at the Beat: (a); disrespectful behaviour towards a superior officer, Sergeant Finch: (c); attempts to intimidate officers who detained him: (e); and, attempts to influence another officer after his arrest: (f).
The evidence around these allegations has already been discussed. The particular problem for Mr Watson-Paul is that, at the disciplinary hearing (at which he was legally represented) he admitted these elements of charge one and they were not contested, or in issue, in the Tribunal below. Notwithstanding that concession, the reasons of Mr Brabazon QC traverse each and every particular and addresses each. Ultimately (and, it appears, again despite the concessions) Mr Brabazon QC and Ms Endicott make specific findings based upon a video tape and audio tape and the evidence of other officers that ‘… the things they complained about should be accepted’.[5]
[5]Ibid 6.
It follows that Mr Watson-Paul, in attempting to persuade the Appeal Tribunal to revisit and overturn these findings of fact, faces the hurdles of his own initial concessions and, then, actual findings by the original Tribunal adverse to him.
This recitation of the particulars of the charge, the evidence before the QCAT Tribunal in the review proceedings, and Mr Watson-Paul’s submissions shows that his application for leave to appeal is one which primarily involves questions of fact or, at best for him, mixed questions of fact, and law.
The distinction between questions of law, and fact, and the nature of questions in which they are mixed is not always easy or clear and courts have not, with respect, found it easy to formulate a satisfactory test. A concise and helpful summary appears in a passage from a decision of the Supreme Court of Canada:
… questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.[6]
[6]Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 766-767.
In that case, a simple example was used to illustrate the concepts:
The question what ‘negligence’ means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact.[7]
[7]Ibid.
In many cases what members of this Tribunal are called upon to do involves weighing evidence, and then applying the law to the findings they make about that evidence. No single factor, or combination of factors, dictates the result and the member must exercise a discretion to reach a decision.[8] This involves taking all the relevant evidence and law into account, and coming to a decision which reflects findings of fact that were reasonably open to be made, and a correct application of the law to them.
[8]Jago v District Court of New South Wales (1989) 168 CLR 23 at 75-76.
Where what is being appealed against is the way a member exercised their discretion the Appeal Tribunal will not interfere unless it can be shown that the member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[9] Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[10]
[9]House v The King (1936) 55 CLR 499 at 504.
[10]Lovell v Lovell (1950) 81 CLR 513.
In his written submissions Mr Watson-Paul claims, as I understand what he says, that the learned members of the original QCAT Tribunal failed to address what he asserts are inconsistencies in the evidence presented on behalf of the respondent.
The reasons of Senior Member Endicott and Mr Brabazon QC indicate, however, that they had weighed the evidence presented to them, and were satisfied that the particulars of the first charge had been established. Nothing in Mr Watson-Paul’s submissions suggests any apparent error in that conclusion or, in particular, the process by which they reached that conclusion. Once that is appreciated, no mistake of fact can be identified.
Nor do Mr Watson-Paul’s submissions point to any apparent error of law. This was a relatively straight forward case in which the Tribunal was asked to review adverse findings about the conduct of a serving police officer, within official police premises but off-duty and drunk, and involving what was, in the face of the evidence, not unreasonably described as ‘strong and foul language’ and ‘verbal attacks’ and a refusal to leave the premises.
On any view the Tribunal’s findings were reasonably open and did not involve any error in the application of the applicable law, or matters of legal principle.
In particular Mr Watson-Paul has failed to show any basis upon which the Appeal Tribunal could or should interfere in the determination and conclusions of the Tribunal itself. For these reasons, leave to appeal should be refused.
For the sake of completeness even if grounds existed upon which leave to appeal might be granted, I would nevertheless dismiss the appeal. The Tribunal’s decision was plainly open on the evidence before it, and no interference has been shown to be warranted.
Margaret McLennan, Member
I have read the reasons of the President in draft. I agree with those reasons, his conclusions, and the order he proposes.
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