Watson-Paul v Acting Assistant Commissioner Dunn

[2011] QCAT 520

CITATION: Watson-Paul v Acting Assistant Commissioner Dunn [2011] QCAT 520

PARTIES:	Larry Watson-Paul (Applicant)
v
Acting Assistant Commissioner Kerry Dunn (Respondent)

APPLICATION NUMBER:   OCR275-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: 17 October 2011

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 1 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:     1.    The application to adduce new evidence is refused.

CATCHWORDS: 

Police Discipline – review application – whether leave should be granted to adduce new evidence – where no new relevant evidence identified

Crime and Misconduct Act2001, s 219(2b)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Larry Watson-Paul appeared in person
RESPONDENT:	Acting Assistant Commissioner Kerry Dunn was represented by Mr McLeod of counsel instructed by the Queensland Police Service Solicitor

REASONS FOR DECISION

1. Mr Watson-Paul has filed an application to adduce fresh evidence[1] in his application to review the respondent’s decision that he is guilty of misconduct.  The finding of misconduct was made after the consideration of evidence about his conduct when he attended the Fortitude Valley Police Beat, in the company of Constable Lawler, at 3:15am on 24 November 2007.  The particulars of the conduct are set out in three charges against him.  Matter 1 contains six particulars of improper conduct and Matter 2 contains one particular of improper conduct and Matter 3 contains one particular of misconduct.

   [1]        Crime and Misconduct Act 2001, s 219H.

1. On 19 October 2010 the Assistant Commissioner found that the conduct particularised in the Matters 1 and 3 was substantiated and imposed a penalty.

1. In his application to adduce new evidence Mr Watson-Paul is asking the Tribunal to “set aside the original submission completed by” Mr Gnech and it be substituted by the submissions by another lawyer Noor Matti.  It also asks that new evidence be accepted in the form of affidavits already filed in the proceeding.

1. The Assistant Commissioner neither consents to nor opposes the application.

1. In his affidavits[2] filed 18 August 2011 Mr Watson-Paul sets out the basis upon which he is asking the Tribunal to accept new evidence.  It relates to his professional relationship with his lawyer and the instructions given to him.  He is critical of how Mr Gnech represented him at the disciplinary hearing and that he did not refer to instructions given to him about inconsistencies in the evidence collated for the internal disciplinary proceeding.  He raises other specific issues in paragraph 27 of his affidavit which include:

·Non reliance on some 22 documents that were missing from the police brief;

·Submissions not written in a professional manner;

·No reference to commendations and work history;

·Failure to mention lack of previous sanctions;

·Submissions not up to standard;

·No comparative sentences were provided.

[2]        Sworn 18 August 2011 and 14 October 2011.

1. Mr Watson-Paul does not contend that Mr Gnech did not follow his instructions with respect to the particulars of the specific charges made against him.  He told Mr Gnech that he admitted Matter 1(a) but denied 1(e) and (f).  He denied Matters 2 and 3.  As it transpired the Assistant Commissioner was not satisfied that Matter 2 was substantiated.  His complaint is more general.

1. I have read the submissions prepared by Mr Gnech and they do properly reflect Mr Watson-Paul’s instructions having regard to his affidavit with respect to each particular.  Mr Watson-Paul complains that he did not read the submissions before the hearing, but he did have an opportunity to do so after the hearing.  Other than the form of the submission there is no criticism of the contentions in respect of each particular.  This would have been relevant if the submissions did not follow his instructions with respect the particulars of misconduct.

1. The preparation of submissions is an individual matter for the author.  There is no set pattern and each person has their own style.  Whether the submissions are professional and adequate very much comes down to a subjective opinion.

1. It is also important to note here that the submissions prepared by Mr Gnech, and for that matter those prepared by Mr Matti, are not evidence.  The evidence is contained in the interviews with Mr Watson-Paul and the statements of the various witnesses to the incidents.  It is this evidence that the Assistant Commissioner had regard to, as will this Tribunal in the review hearing.

[10]  The Tribunal is entitled to have regard to the submissions as to what use can be made of the evidence in the review proceeding.  Mr Watson-Paul is not restricted to the submissions made on his behalf before the Assistant Commissioner.  He is entitled to make any further relevant submission on the evidence that is before the Tribunal in the hearing, in addition to the submissions already made.

[11]  With respect to his past employment record, commendations and lack of sanctions, this can hardly be a contentious issue and would be within the knowledge of the Assistant Commissioner in any event.  If there was previous misconduct, that would no doubt have been identified in the reasons and taken into account when imposing the sanction.

[12] I am unable to discern from the material any new evidence that would be relevant and would meet the requirements of s 218(H)(b) of the Crime and Misconduct Act 2001 in that it would be unfair not to allow Mr Watson-Paul to lead it.

[13]  Therefore the application to lead new evidence is refused.