Watson v Acting Deputy Commissioner McCallum, Queensland Police Service

[2011] QCAT 226

CITATION:		Watson v Acting Deputy Commissioner McCallum, Queensland Police Service [2011] QCAT 226
PARTIES:	Mr Mitchell Watson
v
Acting Deputy Commissioner Colin McCallum, Queensland Police Service

APPLICATION NUMBER:   OCR231-10  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     9 May 2011

HEARD AT:  Brisbane

DECISION OF: James Allen, Member

DELIVERED ON: 25 May 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.   Application for leave to adduce further evidence refused; and

2.   The material filed with the application for leave to adduce further evidence be returned to the Applicant.

CATCHWORDS:

Police misconduct review – Application to adduce further evidence

Crime and Misconduct Act 2001, s 219H

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Mitchell Watson represented by Mr L Rollason, solicitor
RESPONDENT:	Acting Deputy Commissioner, Colin McCallum and Queensland Police Service represented by Mr M Nicholson of Counsel.

REASONS FOR DECISION

1. Senior Constable Mitchell Watson was a dog handler with the Queensland Police Service who with his police dog, Blitz was involved in an incident at West End on 8 September 2009.  As a result of that incident and other unrelated matters Watson was subject to investigation and was directed to attend a disciplinary hearing before Acting Deputy Commissioner Colin McCallum, which occurred on 26 August 2010.  Watson was given initial notice of the hearing on 27 April 2010 and was given a copy of the documents to be considered by McCallum and advised that he could have a person appear with him at the hearing and that if that person was to be a legal representative then an application for approval to have the legal representative present would be required.  The notice made it clear that if Watson’s conduct was proven to the requisite standard it could result in disciplinary action including the imposition of a sanction up to dismissal from the service.  Watson’s legal representative filed submissions in regard to the matter including on penalty on 9 August 2010.  Watson had legal representation at the hearing of the matter.  McCallum found on 26 August 2010 that certain of the charges were substantiated including those relating to the West End incident and ordered that Watson be dismissed from the service.  This was suspended for a period of 24 months with conditions.  Watson has made application to the Tribunal to review this decision.

2. The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[1]  The Tribunal exercises its review jurisdiction by way of a fresh hearing on the merits.[2]  This is always subject to the enabling Act under which the reviewable decision was made.[3]  In this case the enabling Act is the Crime and Misconduct Act 2001 and the conduct of proceeding is to be way of rehearing on the evidence given in the proceeding before the original decision-maker.[4]  The Tribunal may give leave to adduce, fresh, additional or substituted evidence upon application.[5]

   [1] Section 20(1) Queensland Civil and Administrative Tribunal Act 2009.

   [2] Section 20(2) QCAT Act.

   [3] Section 19(a) QCAT Act.

   [4] Section 219H(1) Crime and Misconduct Act 2001.

   [5] Section219H(2).

3. Watson has made application for leave to adduce the following evidence:

a)Statement of Mitchell Watson dated 7 February 2011;

b)Statement of Marcus Hahn February 2011; and

c)Investigation Report of David Thomas.

The grounds raised in the application are the special circumstances of the case, namely that the decision was made following an inquisitorial process which was incomplete.  In further submissions it was stated that the unfairness arose out of the conduct of the investigation and severity of the consequences.  That the inquisitorial nature of the proceedings and the slant of the investigator were productive of an investigation report which was unbalanced and incomplete.  The report was a key primary material upon which the original decision-maker relied in reaching his decision.  Further, the investigator improperly took over the role of decision-maker in making findings of credibility.  And that fairness requires that this matter be determined on the basis of evidence or material which is complete and balanced.  Reference was also made to observations about the limitations of the police disciplinary system by the Hon James Thomas in two recent Tribunal decisions.[6]

[6]Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 and O’Keeffe v Rynders, Deputy Commissioner [2011] QCAT 119.

1. The evidence which is sought to be adduced relates to the training and behaviour of police dogs in respect of the statement of Mr Hahn and whether or not there was broken glass on a particular factory site in respect of Mr Thomas.  The statement of Mr Watson also relates to the training and behaviour of police dogs and his dog Blitz in particular.  It also relates to phone calls with his superior Acting Sergeant Gates, entries in the occurrence log, and issues with the investigation report including the broken glass.  In the submissions it is stated that the investigator, Inspector Hansen was not an expert in dog handling and the material before McCallum did not include sufficient relevant information about the training and behaviour of police dogs.  It is stated that it was reasonable for the applicant to assume that he was required to respond directly to the allegations made in the Investigation Report and to base his response upon the material covered in it.  That the investigation report did not discuss the training and behaviour of police dogs.  Therefore, the applicant’s response did not address it.  The evidence in regard to glass on the site is said to go to Watson’s credibility as the investigation report made a finding adverse to his credibility in regard to the absence of cuts to his person or clothing when it was asserted by the investigator that there was glass on the site.  At the hearing of the application it was submitted the issue of dog behaviour goes straight to the mistake of fact defence.

2. The respondent’s submission was that by using the term “special circumstances” the legislature has intended that in a “usual” case leave should not be granted.  And that for special circumstances to exist the applicant must show something “out of the ordinary unusual and not to be expected”.[7]  It was submitted that special circumstances do not exist in this case.  In this case the applicant was legally represented at the disciplinary hearing.  He was given the opportunity to provide submissions and did so.  That there was acceptance that the police dog had bitten the complainant and that the further evidence would not assist.  That Mr Hahn had no experience with this particular dog and could not talk about the type of bite in question.  That the evidence about credibility was able to be placed before the original decision-maker.

   [7]        United Mexican States v Cabal [2001] 75 ALJR 1673.

3. To be able to grant leave to adduce new evidence the Tribunal must be satisfied that in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.  This brings up the notion of procedural fairness which requires “that a person is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”[8]  Here through the submissions made by his legal representatives and his own submissions at the disciplinary hearing Watson has been given an opportunity to reply to the charges which were particularised in detail against him.  The special circumstances which have been raised go to the very nature of the police disciplinary process as described by the Hon James Thomas in Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564. It cannot be that in every case of review of a police disciplinary decision that special circumstances would be raised as that would mean the purpose of section 219H(1) in limiting the review to the original evidence would be thwarted. It is clear that the penalty which Watson has suffered is severe and that will be reflected in the standard of proof with which the Tribunal will determine whether or not the charges against him are made out.[9]  The Tribunal is not satisfied that this case raises any special circumstances and that the matters raised in regard to the investigation are rightly the subject of submission at the hearing of the matter.  Watson was fully aware of the charges against him; had full access to all of the material to be put before the decision-maker and had legal representatives prepare both written submissions and attend at the hearing of the matter.  The application for leave to adduce further evidence is refused and the material filed in the leave application shall be returned to Watson.

   [8]        Kioa v West [1985] HCA 81 per Mason J at para 34.

   [9]        Briginshaw v Briginshaw (1938) 60 CLR 336.