Groufsky v Crime and Misconduct Commission

[2012] QCATA 188

CITATION: Groufsky v Crime and Misconduct Commission and Anor [2012] QCATA 188

PARTIES:	Shaun Groufsky (Applicant/Appellant)
v
Crime and Misconduct Commission (First Respondent) Deputy Commissioner Queensland Police Service (Second Respondent)

APPLICATION NUMBER: APL162-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon James Thomas AM QC, Member

DELIVERED ON: 2 October 2012

DELIVERED AT: Brisbane

ORDERS MADE:

Leave is granted to appeal the decision of Senior Member Endicott in this matter dated 5 April 2012.1.   

The appeal is dismissed.2.   

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether evidence should be removed from original material – whether separate hearings should be held for determination of substantiation of charges and sanction to be imposed – whether service record received on sanction should be removed from record for determination of substantiation

Crime and Misconduct Act 2001, ss 219BA, 219G, 219H
Queensland Civil and Administrative Tribunal Act2009, ss 3(b), 17, 18, 19, 20, 21, 22, 23, 24, 62, 142(1), 142(3), 166

Aldrich v Ross [2001] 2 Qd R 235
QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257
Watson v McCallum [2012] QCAT 165

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (‘QCAT Act’).

REASONS FOR DECISION

1. This is an appeal against an interlocutory decision in a pending review by QCAT of a disciplinary determination concerning the conduct of a police officer.

1. The parties in the pending review, and in the present appeal, are the Crime and Misconduct Commission (“the CMC”), Deputy Commissioner Ross Barnett (“the decision-maker”) and Sergeant Groufsky (“the police officer”).

1. The original disciplinary proceedings consisted of two charges of misconduct (application of inappropriate force to a prisoner, and failing to treat the prisoner with dignity and respect when unclothed).  The decision-maker dismissed the first charge, found the second charge substantiated, and imposed a sanction of reduction of one paypoint.

1. The CMC then sought a review by QCAT of those decisions under section 219G of the Crime and Misconduct Act 2001, essentially on the basis that the decision-maker should have found the first charge substantiated, and that the sanction imposed was too light.

1. In the course of preparation for hearing of the review, the police officer brought an application for:

(a)   a direction that the police officer’s service record be removed from the material received for the purposes of review of the decision that the first charge had not been substantiated; and

(b)   a direction for separate reviews of the decision concerning substantiation and the decision concerning sanction.

1. That application was dismissed by Senior Member Endicott on 5 April 2012.

1. The present appeal is the police officer’s appeal against that decision.

Jurisdiction

1. QCAT’s jurisdiction to review the decision-maker's decision arose under sections 219BA(1), 219G and 219H of the Crime and Misconduct Act 2001, and sections 17-24 of the QCAT Act. Such proceedings are to be conducted in accordance with the principles stated in Aldrich v Ross[1].

   [1] [2001] 2 Qd R 235.

1. I have been appointed to constitute the Tribunal for the appeal under section 166 of the QCAT Act. Jurisdiction to determine the present appeal arises under section 142(1) of that Act.

1. The appellant police officer needs to obtain leave to appeal, because the decision under appeal is “a decision that is not the Tribunal’s final decision in a proceeding”[2].

   [2]        Queensland Civil and Administrative Tribunal Act2009, s 142(3)(ii).

1. It was submitted that the matter involves issues of general importance including the approach that the Tribunal ought to take in future matters of this kind, and I am inclined to agree.  However the appeal cannot succeed unless the decision was erroneous, and in interlocutory appeals like the present it is usually necessary for the appellant to show that the decision in question contains an appealable error which has resulted in a substantial injustice.[3]

Discussion

[3]        QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257 at [6].

1. The first direction sought by the police officer was “that the service record of the first respondent contained at pages 100 to 108 of the material be removed from the material pending determination of the review regarding substantiation.”  The material in question is the service profile of the police officer, prepared by the Ethical Practice Branch and supplied to the decision-maker for the purposes of his determination of sanction.  It is a normal and highly relevant document for the purpose of that exercise, containing both favourable and unfavourable information. 

1. It is common ground that that material was provided to the decision-maker after the finding of substantiation and before the imposition of the sanction.

1. It seems to me that the application to “remove” such material misconceives the nature of the process by which QCAT makes its determination of such reviews.

1. The Tribunal is bound to hear and decide such a review by way of a fresh hearing on the merits.[4]  While respect will be accorded to the experience of the decision-maker, it is the duty of the Member or Members constituting the Tribunal to make their own fresh decision and “produce the correct and preferable decision”[5].

   [4]        Queensland Civil and Administrative Tribunal Act2009, s 20(2).

   [5]Queensland Civil and Administrative Tribunal Act2009, s 20(2). See further Aldrich v Ross [2001] 2 Qd R 235.

1. The primary legislative provisions governing such reviews are sections 219G(1) and 219H of the Crime and Misconduct Act 2001. Section 219G provides for a "review of a reviewable decision". Section 219H makes a basic prescription for the conduct of such proceedings. It states:

219H Conduct of proceedings relating to reviewable decisions

(1)A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).

(2) However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—

(a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or

(b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.

(3) If QCAT gives leave under subsection (2), the review is—

(a) by way of rehearing on the original evidence; and

(b)     on the new evidence adduced.

1. The practical steps for the gathering of the “original evidence” are stated in section 21 of the QCAT Act, including the following:

21 Decision-maker must help tribunal

(1)In a proceeding for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the tribunal so that it can make its decision on the review.

(2) Without limiting subsection (1), the decision-maker must provide the following to the tribunal within a reasonable period of not more than 28 days after the decision-maker is given a copy of the application for the review under section 37—

(a)     a written statement of the reasons for the decision;

(b) any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision.

(3) If the tribunal considers there are additional documents or things in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the reviewable decision, the tribunal may, by written notice, require the decision-maker to provide the documents or things.

1. In this way a record is assembled upon which the Tribunal will in due course make its determination.  The process is sometimes called “settling the record” and may involve contact between the parties (or their legal representatives) and a QCAT officer.  If the parties cannot agree whether a particular document or material should be included, the matter will need to be resolved by a Tribunal Member.

1. Ultimately all issues of reception of evidence, and then of weight to be given to the evidence, are for the Tribunal that is appointed to determine the review. For practical reasons such matters are usually not set down for final determination until preliminary issues have been resolved, and sometimes this may involve a determination of whether "new evidence" should be received. Except in uncontentious matters, it is preferable that such questions be determined by the Tribunal that will conduct the actual review, because a fresh determination and rehearing of the evidence is mandated, and that Tribunal is required to produce its own "correct and preferable decision" (QCAT Act, section 20(1)). Ultimately, it is for that Tribunal to determine for itself what evidence is relevant and what evidence should be acted upon.

1. Section 219H of the Crime and Misconduct Act 2001 mandates that QCAT must have available all the original evidence that was given before the original decision-maker. The police officer’s service record was part of the evidence given in relation to the issue of sanction. Section 21(2) of the QCAT Act obliges the decision-maker to provide to QCAT “any document or thing… that may be relevant to the Tribunal’s review of the decision”.

1. It was submitted that a direction for the removal of such evidence could be made under section 62 of the QCAT Act, which empowers the Tribunal to give directions and “do whatever is necessary for the speedy and fair conduct of the proceeding”. This would seem to generally permit orders to settle a record, and even (subject to earlier comments) to make preliminary rulings on the admissibility of evidence, but it does not confer power to act inconsistently with section 219H(1) of the Crime and Misconduct Act 2001.

1. Insofar as the application to Senior Member Endicott may be seen as an application to exclude evidence from consideration in the eventual determination, such an application would be better made to the Member who hears and decides the case.  In most such cases one would expect it to be disposed of in a matter of seconds, along the lines of:

Counsel: I submit that pages 100 to 108 are irrelevant to the question of substantiation.

Member: Of course.

1. The present application is in effect to have one arm of QCAT take something away from the eventual Tribunal that makes the decision.  It seeks the imposition of a form of censorship tantamount to a judge ruling that certain evidence should not go before a jury.  The rationale for that practice is that judges are legally qualified while juries are not, and that judges are capable of excluding irrelevant or inadmissible evidence from their consideration.  They do not need to be closeted from it.  The ultimate decision-maker in QCAT is a legally qualified experienced person, and in my view it is undesirable that that person be closeted in this way by another similarly qualified person.  If the service record of the police officer is irrelevant to the review of substantiation of the charges, the Tribunal will not take it into account. 

1. Each case must be decided on its own facts.  There are some instances in which, depending upon the issues which arise, or the conduct of the case, the service record of the police officer may become relevant on an issue of substantiation.[6]  In such a case the Tribunal will use the relevant evidence which is in the record.

   [6]        See for example Watson v McCallum [2012] QCAT 165 [37] – relevance to state of

   mind of police officer who claimed that he believed that his police dog had not bitten a complainant.  His service record showed he must have known of the dog's propensity to bite.

1. For the above reasons I am of the view that the submission “the evidence ought to be removed until such time as sanction is being considered” is contrary to the process contemplated by the relevant statutes.  In truth it cannot be “removed”.  It is evidence which ultimately must be able to be ruled upon by the Tribunal.  It must be a part of the record, unless the record is to be split into two entirely segregated applications.  This is in effect the basis of the second direction sought on behalf of the police officer.

Separate hearings

1. The second issue raised on behalf of the police officer involves a request for separate hearings of the separate issues of substantiation and sanction.

1. In the ordinary course in these matters, there are two reviewable decisions (substantiation and sanction) but only one record.  Some analogy exists with criminal appeal procedure, where both issues (guilt and sentence) are raised by an appellant.  It is not uncommon for the one record of proceedings to be prepared, and courts have no difficulty in focussing upon the relevant parts of the record with respect to the separate issues and separate appeals or applications.  A similar position arises in civil matters where there is an appeal against both liability and quantum.  In both of the above examples, there is nearly always a substantial overlap of evidence, and there would be considerable difficulty and expense involved in separating out such cases into discrete portions and separate records relevant only to discrete issues.

1. It was submitted for the police officer that in the ordinary course submissions concerning sanction should not be made or received until after issues of substantiation have been resolved; and that in a case like the present, one would not know whether such submissions would apply to one charge or two, or none at all, until after the decision on substantiation.  Further, the submissions on sanction might depend upon what primary facts were found in relation to the charges.

1. These points are well taken, but they do not in my view justify introduction of a practice of complete segregation of such cases into separate categories and separate procedures.  In my experience the most effective procedure in such matters is to hear them consecutively on the one occasion, and receive submissions from all parties on all issues.  Where both substantiation and sanction are in issue, natural justice will almost invariably require that the parties be given the opportunity to make further submissions on sanction in the light of the findings announced on substantiation.  Sometimes these will have already been adequately covered; on other occasions some minor supplementary submissions might be thought necessary; and in others some substantial further point might need to be argued.  But the fact remains that the system functions far more efficiently if there is one major hearing with the expectation of a supplementary opportunity (which can usually be accommodated by submissions in writing) than by dividing the process into two major separate hearings.

1. Totally separate sanction hearings would be otiose.  They would presumably involve a restatement of all relevant facts and a reminder of what might have been forgotten by the time of the further hearing, in addition to all normal factors that are canvassed in these matters.

1. In my experience in these cases, all sides are legally represented.  The legally trained representatives are accustomed to presenting arguments based on different hypotheses and to making submissions in the alternative.  The alleged difficulty in making submissions on sanction or penalty before determination of liability are not as great as has been submitted. 

1. The learned Member was in my view quite right to refer to the basic statutory requirements of QCAT that it should “deal with matters in a way that is accessible, fair, just, economical, informal and quick”[7], and to refer to section 4, which obliges the Tribunal to ensure proceedings are conducted in an informal way that minimises cost to parties and is as quick as is consistent with achieving justice.  Such matters should be dealt with as far as is reasonably possible in a single forensic exercise.  It is true that there are two phases in that exercise, but it would involve unnecessary expense and inefficiency if separate records had to be prepared for each phase and such matters were strictly segregated, as is sought by the appellant through the combination of the two present applications.

   [7]            Queensland Civil and Administrative Tribunal Act2009, s 3(b).

1. There is in my view no merit in the submission that Member Endicott erred in declining to hold separate hearings in relation to review of the respective charges.

1. In short no error or injustice has been disclosed in the decision which is the subject of this appeal.

Orders

1. This application raised issues which would, if accepted, bring about radical change to procedures for the disposition of all police disciplinary reviews.  The issues were of sufficient importance to justify the granting of leave notwithstanding that the decision was interlocutory.  However no error is shown in the decision. 

1. It will be ordered that:

1.     Leave is granted to appeal from the decision of Senior Member Endicott in this matter dated 5 April 2012.

2.     The appeal is dismissed.