Watson v Acting Deputy Commissioner McCallum - [2012] QCAT 165

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 –…

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: [2012] QCAT 165
Decision Date: 20 April 2012

CaseChat Overview and Summary

In the case of Watson v Acting Deputy Commissioner McCallum, the applicant, a member of the dog squad, faced disciplinary charges following an incident where a member of the public was bitten by a police dog. The dispute centred on the applicant’s failure to render aid to the bitten individual, failure to report the incident as required by section 9 of the QPS Dog Handler’s Handbook, and a failure to treat members of the public with respect. Additionally, the applicant was charged with driving through a red light without stopping during a chase and providing an untrue statement in the incident report.

The court was tasked with determining whether the applicant’s belief that the complainant had not been bitten was an honest and reasonable mistake, and if certain knowledge of the bite was necessary before the duty to report was triggered. The court also had to consider whether the applicant’s actions constituted misconduct and if the decision-maker had the power to recommend the applicant not return to duties in the dog squad outside of the formal disciplinary order. The court examined the primary facts and the inferences that could be drawn to assess the applicant's state of knowledge and the reasonableness of their beliefs and actions.

The court concluded that the applicant's actions constituted misconduct and breaches of discipline. The applicant’s honest and reasonable but mistaken belief that the complainant had not been bitten was not a defence to the charges. The court found that sufficient information was available to justify the belief that a member of the public had been bitten, triggering the duty to report. Additionally, the court held that the decision-maker’s recommendation regarding the applicant’s future duties could be administratively made but ideally should be part of the formal disciplinary order. The court confirmed the respondent’s decisions on all charges, including the sanction of dismissal suspended for 24 months, subject to specific conditions.

The final orders confirmed the respondent's decisions and sanctions, including the applicant's dismissal from the service, suspended for 24 months with specific conditions, and a reprimand for one of the charges. The applicant was also required to complete certain training programs and perform community service.

Orders

Orders of the court

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

7. The sanction imposed by the respondent on 26 August 2010 on matter three, namely, a reprimand, 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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