Watson v Acting Deputy Commissioner McCallum
[2012] QCAT 165
•20 April 2012
| CITATION: | Watson v Acting Deputy Commissioner McCallum [2012] QCAT 165 |
| PARTIES: | Mitchell Watson |
| v | |
| Acting Deputy Commissioner Colin McCallum |
| APPLICATION NUMBER: | OCR231-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas AM QC, Presiding Member Ms Patricia Hanly, Member |
| DELIVERED ON: | 20 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent's decision of 26 August 2010 that matter one is substantiated and that it amounts to misconduct is confirmed; 2. The respondent's decision of 26 August 2010 that matter two is substantiated and that it amounts to misconduct is confirmed; 3. The respondent's decision of 26 August 2010 that matter three is substantiated, and that it amounts to a breach of discipline is confirmed; 4. The respondent's decision of 26 August 2010 that matter five is substantiated, and that it amounts to misconduct, is confirmed; 5. The respondent's decision of 26 August 2010 that matter six is substantiated, and that it amounts to misconduct, is confirmed; 6. The sanction imposed upon the applicant by the respondent on 26 August 2010 on matters one, two, five and six, is confirmed, namely- (a) That the applicant be dismissed from the Service; (b) That the sanction of dismissal be suspended for a period of 24 months from 26 August 2010, on condition that the applicant:- (i) not commit any further acts of misconduct; (ii) if within the operational period of 24 months from 26 August 2010 the applicant is found to have committed any further act of misconduct, the original order of dismissal take effect immediately; (iii) complete Competency Acquisition Program (CAP) book QCP002 “Urgent Duty Driving, Interceptions and Pursuits "within two months of 26 August 2010; (iv) complete "Meeting the Challenge – Integrity is Everyone's Business" Course number QC0542-01 within 12 months from 26 August 2010; and (v) perform 100 hours community service within a period of 12 months at a Police Citizen’s Youth Club of the applicant's choice, with duties to be performed including but not limited to providing supervision at "Blue Light" discos and general maintenance or administrative duties as required by the relevant PCYC manager, with hours performed to be documented and signed off by the manager of the youth club. (c) That during the operational period of the suspension of sanction (24 months), the applicant shall not progress pay point level in line with Queensland Police Service Policy regarding pay point progression. 7. The sanction imposed by the respondent on 26 August 2010 on matter three, namely, a reprimand, is confirmed. |
| CATCHWORDS: | Police discipline – dog squad – failure to render aid to member of public bitten by police dog – failure to report incident as required – s 9 of QPS Dog Handler’s Handbook – failure to treat members of public with respect – level of knowledge on part of dog handler necessary for duty to render aid and to report incident – whether honest and reasonable but mistaken belief that complainant had not been bitten – whether certain knowledge of bite necessary before duty to report – inferences from primary facts – sufficient information to justify belief that a member of the public had been bitten Police discipline – driving through red light without stopping during chase – whether misconduct – untrue statement in report of the incident Recommendation by decision maker that applicant not be allowed to return to duties in dog squad – recommendation sent administratively by decision maker, and not included in disciplinary order – power to do so – desirability that if such recommendation is made it be made and carried out as part of the formal disciplinary order Crime and Misconduct Act 2001, ss 219G, 219H(1), 219BA(1) Aldrich v Ross [2001] 2 Qd R 235 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mitchell Watson represented by Mr P Callaghan SC |
| RESPONDENT: | Acting Deputy Commissioner McCallum represented by Mr M Nicholson of counsel |
REASONS FOR DECISION
Hon James Thomas AM QC
This is the review of a determination of misconduct on the part of a police officer. The applicant, Constable Watson, was found guilty of four charges of misconduct and of one breach of discipline. A sanction was imposed of suspended dismissal from the police force.
The present proceedings are a review of the five matters which were found to be substantiated. In the event that the present findings are upheld or replicated the applicant has indicated that he does not challenge the sanction that has been imposed. However, in the event that the review sets aside or alters any of these findings, the applicant seeks a review of the sanctions. The parties agreed that in that event this Tribunal should publish its findings on substantiation, and afford the parties an opportunity to make further submissions on sanction before proceeding with that question.
We will refer to the applicant as Constable Watson, and to the respondent as the decision-maker.
Jurisdiction
The primary source of our jurisdiction is to be found in sections 219G, 219H(1) and 219BA(1) of the Crime and Misconduct Act 2001, along with sections 17-24 of the Queensland Civil and Administrative Tribunal Act 2009. It is our duty to make up our own minds on the evidence, and conduct a fresh hearing on the merits in the manner recognised in Aldrich v Ross [2001] 2 Qd R 235.
Charges
Six charges were laid, and matter number four was found to be not substantiated. The charges arise out of two separate incidents, one of them concerning events following Constable Watson’s handling of a police dog, and the other arising from his driving of a police vehicle.
The following are the charges. We will retain the numbering of the original charges, and will omit the unsubstantiated charge (which was numbered as Matter Four).
Matter One
That on the 8th day of September 2009 at West End your conduct was improper in that you:
(a) failed to comply with Queensland Police Service policy and procedure in relation to Dog Bite Incidents
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that:
·on Tuesday the 8th day of September 2009 you were on duty in your capacity as a Dog Squad Officer;
·at approximately 1.17am you attended an address at OI Glass Montague Road West End with your Police Dog ‘Blitz’ in relation to a complaint of break and enter;
·employees of OI Glass, Mr B [complainant] and Gary James Smyth, were standing in the car park;
·unrestrained Police Dog ‘Blitz’ approached both men and went to the rear of Mr B;
·Police Dog ‘Blitz’ bit Mr B twice on the left calf;
·these bites caused breaking of the skin and pain and discomfort to the complainant;
·you failed to comply with section 9.2 of the Queensland Police Service Dog Handler’s Handbook in that you failed to:
oarrange medical attention for Mr B;
oadvise the Region Duty Officer;
oadvise your officer in charge;
oadvise the District Officer;
oto complete PD 12 (Dog Bite Incident Report);
oto forward and electronic copy of the PD 12 (Dog Bite Incident Report) to the State Coordinator on your next rostered shift or within 48 hours, which ever is sooner; and
·you failed to ensure that a significant event message was completed in compliance with section 1.6.10 of the Operations Procedures Manual.
Matter Two
That on the 8th day of September 2009 at West End your conduct was improper in that you:
(a) failed to treat members of the public with respect and dignity
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that:
·on Tuesday the 8th day of September 2009 you were on duty in your capacity as a Dog Squad Officer;
·at approximately 1.17am you attended an address at OI Glass Montague Road West End with your Police Dog ‘Blitz’ in relation to a complaint of break and enter;
·employees of OI Glass, Mr B and Gary James Smyth, were standing in the car park;
·you requested that they open a locked gate;
·you were informed that they would have to contact security and you said “that’s no fucking good to me”; and
·when informed by Mr B that Police Dog ‘Blitz’ had bitten him you replied ‘I told you to fucking stand still’.
Matter Three
That on the 14th day of September 2009 at Brisbane your conduct was improper in that you:
(a) submitted a PD 12 (Dog Bite Incident Report) containing false and misleading information
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
·on Tuesday the 8th day of September 2009 you were on duty in your capacity as a Dog Squad Officer;
·at approximately 1.17am you attended an address at OI Glass Montague Road West End with your Police Dog ‘Blitz’ in relation to a complaint of break and enter;
·employees of OI Glass, Mr B and Gary James Smyth, were standing in the car park;
·Police Dog ‘Blitz’ approached both men and went to the rear of Mr B;
·Police Dog ‘Blitz’ bit Mr B twice on the left calf;
·these bites caused breaking of the skin and pain and discomfort to the complainant; and
·on Monday the 14th day of September 2009 you submitted a Queensland Police Service Dog Squad Incident Report (Category 2) stating “at the time I had a genuine belief that PD Blitz’s contact was non-forceful and at the worse a canine stuck in a thread of the workman’s jacket. I was of the opinion that the dog had mouthed the outside of the workman’s jacket causing his tooth to get stuck in the thread of the jacket, but had not bitten the workman or caused any injury”.
Matter Five
That on the 2nd day of September 2009 at Fortitude Valley your conduct was improper in that you:
(a) failed to comply with Queensland Police Service policy and procedure in relation to safe driving
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that:
·on 2nd day of February 2009 you were the driver of a police vehicle registration number 494 JDG;
·at approximately 0257 hours you activated a red light camera at the intersection of Ann and James Streets Fortitude Valley; and
·photographic evidence of the detection has enabled investigators to estimate that the police vehicle travelled through the intersection at between 70kph to 80kph in contravention of section 14.32.4 of the Commissioner’s Circular No. 24/2007.
Matter Six
That on the 20th day of March 2009 at Brisbane your conduct was improper in that you:
(b) submitted a report containing false and misleading information
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that:
·on 2nd day of February 2009 you were the driver of a police vehicle registration number 494 JDG;
·at approximately 0257 hours you activated a red light camera at the intersection of Ann and James Streets Fortitude Valley;
·on the 20th day of March 2009 you submitted a report stating ‘I observed a red light at this intersection and stopped approximately 10 metres short of the intersection’; and
·photographic evidence of the detection has enabled investigators to estimate that the police vehicle travelled through the intersection at between 70kph to 80kph.
Material
The record comprises two parts. Part A consists of 282 pages which include the proceedings before the decision-maker including transcripts, submissions and material presented to him by the parties, (supplemented by a correct copy of the transcript of proceedings before the decision maker). Part B consists of 219 pages which contain the original evidence presented to the decision-maker pursuant to the relevant investigations.
We have also been supplied with copies of photographs referred to in the proceedings, and a DVD of a film taken by Constable Watson of the scene subsequently to the relevant incident, accompanied by his commentary. This was among material presented to the decision-maker by the applicant’s solicitor during the original hearing. We have viewed and heard all such material.
Consistent with common practice in proceedings of this kind, Constable Watson was legally represented both during his interviews with the investigating officers, and at the proceedings before the decision-maker. During the original interviews he was directed according to the Commissioner’s standing direction to fully and truthfully answer all questions, and his answers were given “under protest and duress”. Again consistently with common practice, he did not choose to give evidence before the decision-maker, and his solicitor was permitted to make untested assertions of fact on behalf of Constable Watson, to tender statements of some further witnesses (which were not subjected to any form of challenge) and to make submissions on Constable Watson’s behalf.
The conduct alleged in matters two and five was formally admitted on Constable Watson's behalf, with the reservation that the conduct referred to in matter two should be characterised as a breach of discipline rather than misconduct. That aside, there was no contest on the details in the particulars of those charges. The question of how they should be characterised and how seriously they should be viewed are now matters for the Tribunal.
It will be convenient to consider firstly the charges which arose out of the incident involving the police dog on 8 September 2009.
The dog-bite incident and its aftermath
Constable Watson was a member of the police dog squad in charge of a police dog named Blitz. At the time in question (around 1:30am on 8 September 2009) he received a radio call that four persons were breaking into a warehouse at Montague Road, South Brisbane. He went to the scene and was informed that one of the offenders had been apprehended and the other three had run off towards Boundary Road. He commenced tracking with Blitz and came to a position outside the fence at the southern part of the warehouse. Inside the yard he saw two warehouse employees (Mr B and Smyth). Constable Watson asked them to open the gate, but was advised that they did not have a key and that the security guard would need to open it. Constable Watson showed annoyance, and made comments like “For fuck’s sake” and “That’s no fucking good to me”.[1] He then took off with Blitz to find his way to another entrance. This required him to travel around 80 metres through dark uneven surroundings. In the course of this he fell over and lost control of the lead and the dog.
[1] Record B 89.
He pursued the dog which found its way into the yard and ran towards Mr B and Smyth. Constable Watson called to the dog and also to the two men telling them “Just stand still”. By this stage he was between 10 and 20 metres behind the dog. Mr B, a worker still wearing earplugs, did not hear the instruction to stand still, turned, and was bitten twice on the left leg by the dog. Constable Watson then controlled the dog and placed him in a safe position.
Mr B complained “The dog’s bitten me”. There is evidence that he said so twice. Constable Watson’s response was “Well I told you to fucking stay still.”[2] Constable Watson also admits that he was “hot under the collar” when the incident happened and also admits that he said to Mr B “For fuck’s sake what did you do that for?”[3]
[2]Record B 64-65 and 74 (per Barclay); Cf Const Watson at B 123 “Fuck. I told you to stand still.”
[3] Record B 100.
Constable Watson ignored the complaint that Mr B had been bitten. He claims not to have believed it. He made no relevant enquiry to confirm or disprove the statement. He asked no questions and offered no aid. His response was limited to his somewhat sharp remark to Mr B about not staying still. He then fairly quickly left the scene to continue the pursuit.
Mr B checked his leg, found it was bleeding slightly from one of the two puncture wounds, and he left to get treatment.
Some time later, Constable Watson returned to the scene hoping to interview Mr B and Smyth about details of the incident involving the dog. By that time, unsurprisingly, they were no longer there.
Constable Watson then went home for a shower, after which he phoned a superior officer, Acting-Sergeant Gates, to give a running report on activities. After mentioning an earlier incident, he referred to the break and enter at Montague Road, and that he had fallen over in the mud, had dropped his tracking line, that the dog had "run toward two male persons", that he had told them not to move, and that he had regained control of the dog in the vicinity. According to Gates, Watson made no mention of the fact that there had been contact between his dog and any person.[4]
[4] Record B 57-59.
Mr B was given first aid on the premises by Smyth. Later he went to his doctor for a tetanus needle. At some stage he lodged a complaint with the West End police concerning the conduct of Constable Watson.[5]
[5] Record B 75.
Inspector Williams was appointed as the investigator and he arranged for photographs to be taken of Mr B on 11 September, to show his injuries and the clothing he had worn.[6]
[6] Record B 67.
Constable Watson has consistently claimed that he did not see the dog bite Mr B on the leg. During his recorded interview of 18 September 2009 he stated that his impression was that “the dog has jumped up and grabbed, to my knowledge has grabbed, jumped up and at the best mouthed this guy on the jacket...”[7] This is broadly consistent with versions of the event which he recounted to various colleagues, and with the version which he had presented in his written incident report of 14 September 2009.[8]
[7] Record B 99 (during record of interview 18 September 2009).
[8] Record B 18.
Standing instructions for members of the dog squad are contained in the Queensland Police Service Dog Handler’s Handbook. They require a report to be submitted about “every incident where a police dog comes into contact with any person”. In the event that a person is injured by a police dog a “category 1” report is required. In the event that no injury requiring medical attention is sustained a “category 2” report is required. The relevant form (“PD 14”) is the same for both, but obviously the content that requires to be stated is different for each, and a category 1 report needs to be sent to more stated sources for their consideration. The obligation to submit a report of either category is the same – “as soon as practicable”.
The instructions include-
“(9.5). When a handler is aware that a police dog has come into physical contact with a person the handler shall make all reasonable steps to identify the person and ensure if any injury has been sustained the person is offered medical aid.”
Later that morning Constable Watson advised his supervisor, (Acting Sgt Gates), that there had been an incident involving his dog, but failed to mention that there had been any actual contact between the dog and a person. Subsequently Constable Watson orally advised some of his colleagues that there had been an incident involving contact between his dog and a man, but told no one that his dog had bitten the man or that the man claimed to have been bitten. When asked by his colleagues whether his dog had bitten the man, Constable Watson stated that he had not.[9]
[9] Record A 74, A 77, B 61.
Constable Watson did not prepare a written report of any kind until six days later (14 September), several days after he had become aware that a complaint had been made against him (11 September). He then submitted a “category 2 report”.
The gist of his report is that while in pursuit of the dog he yelled “Just stand still”, saw Mr B move his upper torso and arms and that the dog jumped up. He wrote “I was of the opinion that the dog had mouthed the outside of the workman's jacket, causing his tooth to get stuck on the thread of the jacket, but had not bitten the workman or caused any injury”; and “I was of the genuine belief that PD Blitz’s contract was non-forceful and at the worst, a canine stuck in a thread of the workman's jacket”.
The particulars mentioned in matter one include a breach of section 9 of the Incident Reporting Handbook in that he failed to arrange first aid or medical attention, failed to advise the necessary officers of the incident, failed to complete a PD 12 report, and failed to forward it to the State Coordinator within the required time.
It is an objective fact that there was in fact a dog bite, and that Constable Watson was present when it happened. His defence to the charges arising out of the incident are that he honestly and reasonably, but mistakenly believed that no dog bite had occurred.
The primary submission of Mr Callaghan SC for Constable Watson is that his client could not be found guilty of misconduct for failing to render first aid or for breach of reporting procedure if he held an honest and reasonable belief that no injury had been suffered. He submits that if there is a reasonable possibility that his client held the honest and reasonable but mistaken belief that Mr B had not suffered an injury as defined for the purposes of category one, he cannot be found guilty of misconduct.
This submission adopts principles from the criminal law along with the criminal standard of proof, and of course the present proceedings are civil, and are governed by the Briginshaw principle.
However, leaving aside the level of satisfaction necessary to exclude the existence of such a belief on the part of the person charged, counsel for the respondent, Mr Nicholson, does not challenge the general proposition that in a disciplinary proceeding of the present kind his client has a persuasive onus to show that no such belief existed.
We are prepared to accept that unless the existence of an honest and reasonable but mistaken belief on Constable Watson’s behalf that the dog had not bitten Mr B is satisfactorily excluded having regard to the principles in Briginshaw, he cannot be found guilty on matter one. Neither could he be found guilty on matter three, which alleges that he was untruthful on occasions when he denied that a dog bite incident had occurred.
An alternative defence submission is that the duty to submit a report about a dog bite cannot arise on the part of a police officer unless he or she actually knows that a dog bite incident has occurred. This will be addressed in due course.
The shortcomings of the current disciplinary system and procedure have been mentioned on other occasions in this Tribunal[10]. As is often the case, there has been very little testing of evidence. Essentially the evidence consists of records of interview conducted by Inspector Hansen with Mr B and Smyth on 14 September 2009 and with Watson on 18 September 2009, in none of which was there any significant cross examination, and of various statements by police officers, prepared by themselves and untested.[11] There are also various assertions of fact made by Constable Watson's legal representative during the disciplinary proceedings.
[10]Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service and Chapman [2010] QCAT 564.
[11] Acting Sergeant Gates, Senior Constable Notaro, Constable Scott and Sergeant Hahn.
Nonetheless it is our duty to do the best we can on the available material.
Discussion
The circumstances of the incident itself make it very difficult to accept that Constable Watson was unaware that Mr B had been bitten. The undisputed facts are that there was a scrimmage involving Mr B and a powerful dog, Constable Watson saw it or part of it, Mr B immediately complained that he had been bitten, and Constable Watson did not see fit to challenge that assertion. To the contrary, his response was directed to deflecting the blame, and perhaps to justifying the dog’s action. Further, on his own version he had seen worrying contact between his dog and Mr B. If he truly believed that the dog’s tooth had been caught up in Mr B 's sleeve, it is hard to accept any complete disbelief that Mr B had been bitten anywhere at all, or that the situation did not call for an immediate further enquiry.
A further factor negating any genuine belief that the dog had not bitten Mr B lies in Constable Watson’s previous experiences in incidents in which he had been involved in which persons involved had suffered dog bites. Notably, in a period of a little more than four years preceding this incident, there are reports of no less than 10 incidents resulting in investigations showing that 12 persons had been bitten by dogs under the control of Constable Watson. It is common ground that he had been involved in 15 dog biting incidents during his period with the dog squad. Most of these involved injuries to offenders who acted inappropriately. But not all. One of the incidents involved an innocent suspect who was bitten by the same dog Blitz while under Watson’s control. We do not suggest for a moment any of this evidence carries the force of similar facts, but consider that it has relevance to the probability of Constable Watson believing or disbelieving that a man, following contact with this police dog, had been bitten when he claimed that he had been.
Mr Nicholson has submitted that we should simply disbelieve Constable Watson’s assertions to the contrary.
The case made on behalf of Constable Watson is one of repeated assertion of a belief that no harm had been caused. There are no admissions by him of knowledge that Mr B had been bitten in any of the statements of the other five police officers to whom he described the incident. The decision-maker seems to have regarded the statement of Acting-Sergeant Gates as tending to refute the existence of such a belief, but with respect we think that the reasoning on this point is flawed. Watson gave a short account of the incident to him shortly after the events, and failed to state that the police dog had come into contact with or bitten any person. That of course is inconsistent with his present version, and it suggests a downplaying of the incident. It reflects adversely on his credit, but by no means can the statement of Sergeant Gates be used to provide support for the proposition that Constable Watson knew that one of the men had been bitten.
Looking at the evidence as a whole, the five persons to whom Watson spoke about the incident, all record a version of unawareness of any harm having been caused to any person, and this catalogue of "consistent statements" is the basis of the submission that these assertions should be accepted as true, or at the end of the day as not sufficiently clearly being shown to be untrue.
The existence of self-serving statements may tend to give some plausibility to a proposition that is otherwise difficult to believe, but on analysis we consider that these statements show little more than that Constable Watson stuck to an unrealistic pretence or bluff. They are better explained by a protective attitude towards his dog, an unwillingness to face up to the procedures and paperwork that such an incident would necessarily generate, and the fair chance that if the complaint was ignored it would go away.
Among other hypotheses we have considered the possibility of wilful blindness on Watson’s part. While that may be an arguable explanation, we do not think that such a finding would necessarily negate a finding of misconduct. The concept of wilful blindness implies an awareness of a situation and a wilful suppression of it. The wilful suppression of awareness or knowledge by a police officer of a situation or act or omission would in our view be an improper action, and should not be regarded as destroying a duty to report such a situation or fact. We think it more realistic at the end of the day to ask how could Constable Watson honestly disbelieve Mr B following his scuffle with the dog and his immediate complaint that he had been bitten? And if he suspected Mr B might be mistaken, why did he not then check it out?
It was urged on Constable Watson’s behalf that the investigator failed to properly investigate aspects that could have supported Watson’s case. The investigators did not obtain and retain the clothing of Mr B to check whether there was evidence of bite marks on the torso region or arm area of the clothing, and no photographs were taken of the complainant’s arm. No doubt this was because the complainant made no claim to having been bitten or mauled in any area other then the left leg, and the photographing of the complainant and his injured leg occurred before Constable Watson presented any version suggesting the involvement of a different part of the complainant's body. The relevance of this point is that Constable Watson’s version had the dog jumping up and mouthing the complainant by the sleeve of Mr B’s “jacket”.
Some significance seems to have been attached by the decision-maker to Constable Watson’s description of Mr B’s upper garment as a “jacket”, but we do not think this should be used against him. It seems to have been a long-sleeved orange shirt with patterned braces, and could easily have been taken for a jacket at night time in the given circumstances. Photographs were in fact taken of Mr B a few days after the incident. A good deal of the outer parts of the sleeves are shown in the photographs, especially on the left, which is the side from which Constable Watson claims the dog approached Mr B.. There is no apparent penetration, tear, or irregularity on them, but as there is no evidence of continuity of the condition of the shirt between the incident and the taking of the photographs, or indeed that it was even the same shirt, it is not safe to draw any inference in this respect. In the absence of any reason at that time to investigate upper body involvement it is not surprising that the investigators focussed their attention on the leg injuries. It is true that almost a year later when, in the course of the disciplinary proceeding[12] Constable Watson's solicitor complained about the failure to check this area of clothing, and Mr Callaghan now submits that “it seems unlikely, if he had no basis for his belief, that he would have importuned the authorities in this manner”. However this seems a rather long bow to draw from a forensic point taken almost 12 months later. It is true that more detailed enquiries could have been made, but we do not think the failure to make a minute investigation of the “jacket” gives sufficient cause to doubt the evidence of Mr B and Smyth, or that it casts doubt on any of the main events from which inferences may be drawn.
[12] Record A 238.
Is actual knowledge necessary?
Mr Callaghan SC, for Constable Watson, submitted that actual knowledge of a dog bite is necessary before any duty arises to make a category one report. It is a nice question whether such a duty arises only when there is actual knowledge as distinct from reasonable suspicion or belief. No authority was cited in support of the proposition, and further argument would be required on such a point before holding that actual knowledge is always a condition precedent to a duty to report. We understand the principal defence submission to depend on honest and reasonable mistake of belief. We will however make some preliminary observations on the present submission.
In areas involving police activity, the law has from time to time concerned itself with the level of awareness necessary to justify particular actions. In certain areas (search warrants are a familiar example among many others), levels of awareness have been identified as including suspicion, reasonable suspicion, belief, reasonable belief, and actual knowledge. In many situations, a court or tribunal may be faced with the task of inferring one of these states of mind, or levels of awareness. We find it difficult to think that actual knowledge or virtual certainty is a necessary pre-requisite of the duty to report an incident. Specifically we would reject that submission in relation to the duty to report an incident under section 9 of the Queensland Police Service Dog Handler’s Handbook. If a dog-handler is involved in an incident and has information that would justify the belief that a category one incident had occurred, he or she is bound to report it. Any doubts or reservations held by the reporter as to the occurrence of a fact or event would simply be a part of the report.
The concept of “wilful blindness” (discussed above) may produce difficulties, but even here questions arise as to degrees of knowledge, satisfaction and certainty, and the necessary findings need to be made on a case by case basis. The deliberate suppression of a belief or knowledge, such as wilful blindness, can not in our view destroy a duty to report.
In the present matter we are satisfied that Constable Watson was in possession of sufficient information to justify the belief that a category 1 incident had occurred.
Conclusions on matters one and three
We are satisfied to the required standard that Constable Watson did not form an honest belief that no dog bite had occurred; and that if such a belief had been formed it would not have been reasonable. We are also prepared to infer that he must have known that Mr B had been bitten.
Absolute certainty is a rare commodity. Putting it at the lowest, he knew there was a high probability that Mr B had been bitten. This in our view was sufficient to activate his duty under Instruction 9 to arrange first aid, to make further enquiries and to submit a report. Indeed, even in the absence of Instruction 9, proper conduct by a police officer would have required no less. He could not escape these duties by wilful avoidance of further enquiry.
We are satisfied that matter one has been substantiated, and likewise that matter three (submitting false and misleading information in his report) has been substantiated.
In regard to matter three, the misinformation was the product of more than mere carelessness, and his conduct could satisfy the definition of misconduct. However, the decision-maker regarded it as amounting only to a breach of discipline, and there has been no cross-appeal to upgrade its characterisation. While we think that the present review enlivens our jurisdiction to declare it to be misconduct, in the absence of any application, in that behalf from the respondent, we will simply confirm the respondent’s finding that matter three was substantiated, and that it amounted at least to a breach of discipline.
Matter Two – behaviour towards members of the public
Matter two alleges that Constable Watson failed to treat members of the public with respect and dignity. This charge is founded on the combined effect of his reactions when Smyth and Mr B could not let him through the gate, and his later response when told that Mr B had been bitten.
Due allowance must be made for the conduct of police officers in what counsel referred to as high adrenaline situations, such as in the course of a chase or in the presence of danger. One cannot expect ordinary courtesies and niceties, and bad language will hardly surprise. Mr Callaghan submitted that his client’s frustration upon being unable to get through the gate was unremarkable in the context of a high adrenaline search and chase, and that to insist otherwise is “simply too precious”.
If the conduct were confined to the first incident, we would entirely agree. But in the context of his later conduct towards the same two employees, one senses something of an arrogant attitude on the night in question. In particular, the reaction “I told you to fucking stay still…” instead of a sympathetic or apologetic reaction was quite inappropriate. It was not an acceptable reaction for a police officer in that situation.
The two employees were not particularly upset by Constable Watson's actions, but Mr B, rightly in our view, regarded the reactions of the dog handler as “rude”. Had there been any form of apology tendered there is little doubt that no complaint would have been made. In the context of conduct dealing with members of the public this was a relatively minor transgression, but we think that it overstepped the area of acceptable conduct and that it satisfies the wide definition of “misconduct” contained in section 7.4 of the Police Service Administration Act 1990. We hold that matter two is substantiated.
Matter Five – Driving Through Red Light
At about 3am on 2 February 2009 Constable Watson was in charge of a police vehicle when he received notification of a break and enter at Kangaroo Point. While proceeding to that location he passed a red light at the intersection of Ann and James Streets, Fortitude Valley. Later he successfully intercepted and apprehended an offender who was carrying knives and was suspected of having committed a number of burglaries.
When he prepared his “log of occurrences” for that shift, he noted that the red light camera at the above intersection was likely to have been activated. Some time later, 20 March 2009, he completed a report stating that he stopped his vehicle prior to passing through the red light. However the fact that he actually travelled through the intersection at between 70kph and 80kph, and supporting opinion evidence, demonstrates that he could not have stopped in the manner and place he claimed.
When later questioned about this, Constable Watson acknowledged he ought to have reported the incident “more accurately”. His report, he said, was based upon the fact that he usually stopped in such situations and thought that this is what he would have done on that occasion.
So far as his action in driving through the red light (matter five) is concerned, he pleaded guilty to the present disciplinary charge with certain factual qualifications. The main qualification was that as he approached the intersection he braked heavily and satisfied himself it was safe to proceed before doing so. He provided evidence that the particular intersection has a good sight line and his main submission was “although I accept that I may not have come to a complete stop at the intersection, I submit that I proceeded through the intersection with a clear view.”[13]
[13] Record A 39.
In the present proceedings it was submitted on behalf of Constable Watson that “it is difficult to see how, on analysis, this incident could amount to misconduct”. However, having pleaded guilty to a matter charged as misconduct, he would seem bound by that admission unless of course the circumstances are incapable of amounting to misconduct. Having regard to the definition of “misconduct” in section 1.4 of the Police Service Administration Act 1990 we think that driving through a red light at between 70kph and 80kph after a quick glance for other traffic in an intersection with a good sight line may be at a low level of seriousness, but is still capable of being regarded as misconduct. The definition includes conduct that is “improper”, and it includes conduct that “does not meet the standard of conduct the community reasonably expects of a police officer”.
Mr Callaghan drew attention to the wording of charge five which alleges a breach of the QPS policy and procedure, and contended that the charge does not aver that his failure to stop was part of that offence. He submits that the particulars are restricted to his travelling through the intersection “at between 70kph – 80kph in contravention of section 14.32.4 of the Commissioners Circular..” However the circumstance of proceeding through the intersection at that speed “in contravention of section 14.32.4” is sufficient to incorporate the circumstance of running a red light, because section 14.32.4 is concerned specifically with police who drive against a red traffic control light signal, and provides the only way in which this is permitted, namely “only after stopping and ensuring .. etc”. We think that the charge as particularised puts in issue the entirety of the driving conduct in the specified area on that occasion including his driving past the red light at the stated speed without stopping. We note however that there is no reason to think that any dangerous situation was in fact created, and consider that the circumstances of this particular charge lie at the lower end of seriousness in the spectrum of misconduct.
Matter six – false and misleading information in report
The words he used were quite clear – “I observed a red light at the intersection and stopped approximately 10 metres short of the intersection”. They were untrue.
It was contended that this entry was attributable to a faulty recollection and that it should have been interpreted as recording what his usual practice was. However his conduct seems to have been more than a mere failing of recollection, it was an untrue assertion of compliance with the known police requirement of stopping. It may be accepted that he slowed down considerably, but the terms of the report show a preparedness to bend the truth if the report had been accepted at face value it would have exonerated the applicant from any breach of policy and procedure. The attempted covering up of the transgression is, we think, more serious than the original misconduct. Once again it is a matter that should not be overblown, but it is necessary to deter police officers from any form of deception in the presentation of reports.
The present charge was substantiated and it satisfies the definition of misconduct.
Orders
The orders of the respondent Acting Deputy-Commissioner McCallum dated 26 August 2010 on matters one, two, three, five and six will be confirmed.
In view of the express concession by Mr Callaghan that in the event of such confirmation no review was sought of the sanction imposed, the sanctions will also be confirmed, subject to the following remarks.
Recommendation that applicant not be allowed to return to duties within the dog squad
In the course of his “findings and reasons” published to the parties on 26 August 2010, the Acting Commissioner stated:
“Further, I will be making a recommendation to the Assistant Commissioner, Operations Support Command that you should not be allowed to return to your duties within the dog squad”.
The formal order did not incorporate such a recommendation, and it seems to have been carried out by the decision maker as an administrative act.
There is no mention in the Police Service Administration Act 1990 section 7.4(3) of a specific power to make an administrative recommendation of this kind, but the disciplines stated in that subsection are non-exclusive, and the particular disciplines there mentioned are mere examples of a wider undefined power of “disciplinary action”.
Independently of the disciplinary process, such a recommendation by a high ranking officer would seem to be an administrative act within the officer’s general power of action within the force. But here the involvement of the Acting Deputy-Commissioner was an integral part of the disciplinary process, and ought to be considered in that context.
Having regard to the breadth of section 7.4 of the Police Service Administration Act 1990, and of regulations 5 and 10 of the Police Service (Discipline) Regulations 1990 the better view seems to us to be that the decision-maker had the power to make such a recommendation as part of the disciplinary process. On that basis, if such a recommendation is to be made, we consider that it ought to be included as part of the formal order. Otherwise the police officer concerned would be subjected to a penalty as part of and in consequence of the disciplinary process which is not subject to appeal or review. In Mr Callaghan’s phrase it would be a back door penalty. The Operations Support Command is not bound to give effect to such a recommendation, but it is capable of exerting considerable influence, and its consequences can be substantial.
We are therefore of the view that if a decision-maker is minded to make such a recommendation in the course of disciplinary proceedings it should be made as a part of the formal order, thereby rendering it subject to review along with any other sanctions that are imposed.
Patricia Hanly
I have had the advantage of reading the reasons of Hon James Thomas in draft. I agree with them, and the conclusions he reaches and the orders he proposes.
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