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  • Unreported Judgment

Bret Chadwick v Acting Deputy Commissioner DA Wright

 

[2020] QCAT 66

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Bret Chadwick v Acting Deputy Commissioner DA Wright [2020] QCAT 66

PARTIES:

BRET CHADWICK

(applicant)

 

v

 

ACTING DEPUTY COMMISSIONER DA WRIGHT 

(respondent)

APPLICATION NO/S:

OCR314-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 March 2020

HEARING DATE:

28 October 2019

HEARD AT:

Brisbane 

DECISION OF:

Member Traves

ORDERS:

THE TRIBUNAL ORDERS THAT:

  1. The decision of the Acting Deputy Commissioner of 13 November 2018 that Bret Chadwick be dismissed is confirmed.
  2. No order as to costs.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND -  where review of sanction – where applicant deleted body camera footage of an arrest made by his junior partner – where applicant made material false statements about the circumstances of the arrest in an interview with Crime and Corruption Commission investigators -  where those material false statements repeated in a formal statement – where applicant threw passports belonging to two international backpackers on the ground where the backpackers had been urinating – where applicant initially untruthful about the circumstances of the incident with the two backpackers.

Crime and Corruption Act 2001 (Qld), s 219BA, s 219C, s 219G, s 219H, s 219I, Schedule 2

Police Service Administration Act 1990 (Qld), s 1.4, s 7.4.

Police Service Discipline Regulations 1990 (Qld), reg 3, reg 5, reg 10, reg 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 s 24

Aldrich v Ross [2001] 2 QdR 235

Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23

Crime and Misconduct Commission v Assistant Commissioner Paul Taylor & Shepherd [2018] QCAT 80

DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162

Deputy Commissioner Stewart v Dark [2012] QCA 228

Francis v Crime and Corruption Commission [2015] QCA 218

Kennedy v Deputy Commissioner Stewart [2012] QCAT 66

Police Service Board v Morris (1985) 156 CLR 397

Re Bowen [1996] 2 QdR 8

REPRESENTATION & APPEARANCES:

 

Applicant:

Liza Marshall, counsel instructed by Gilshenan and Luton Legal Practice

Respondent:

Scott McLeod QC instructed by QPS Legal Unit

REASONS FOR DECISION

  1. [1]
    The applicant, Bret Chadwick, has applied for review under s 219G of the Crime and Corruption Act 2001 (Qld) (CCA) of a decision dated 13 November 2018 by Acting Deputy Commissioner DA Wright, that he be dismissed from the Queensland Police Service effective immediately.

The statutory context

  1. [2]
    Section 219C of the CCA provides that QCAT has jurisdiction to conduct disciplinary proceedings. ‘Disciplinary proceeding’ includes a proceeding under s 219G for a reviewable decision.[1] Under s 219G (as it applied to this reviewable decision), Mr Chadwick had 28 days from the day on which notice of the decision was given to apply for review.[2] Mr Chadwick made his application within time.
  2. [3]
    A reviewable decision includes a decision under part 7A of the Police Service Administration Act 1990 (PSA Act) to make a disciplinary finding or disciplinary declaration against a former officer.[3] The finding that misconduct was proved was therefore a reviewable decision. This includes the decision as to sanction which is incidental to the decision that misconduct is proved.
  3. [4]
    Section 219H of the CCA provides that the review is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker.[4] However, QCAT may give leave to adduce fresh, additional or substituted evidence in certain circumstances.[5]
  4. [5]
    The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that in conducting a review, the Tribunal is to hold a “fresh hearing on the merits” and to make the “correct and preferable” decision.[6] In a proceeding for a review of a reviewable decision, the Tribunal may: confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.[7]
  5. [6]
    The review, being by way of rehearing with the power to make the “correct and preferable” decision, gives rise to a presumption that the Tribunal is to exercise original jurisdiction and to determine the matter on the evidence and law applicable at the date of its decision.[8] In Aldrich v Ross, the Queensland Court of Appeal held that the Tribunal is obliged to “make its own decision on the evidence before it” as opposed to merely determining the correctness of the original decision in the limited manner dictated by an appeal strictu sensu.[9] This approach has been applied in Francis v Crime and Corruption Commission[10] and Crime and Misconduct Commission v McLennan.[11]
  6. [7]
    Part 7 of the Police Service Administration Act 1990 (Qld) is concerned with internal command and discipline within the Queensland Police Service. Section 7.4(2) provides that “an officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.” The term ‘misconduct’ is defined in s 1.4 as being:

Conduct that –

(a) is disgraceful, improper or unbecoming a police officer; or

(b) shows unfitness to be or continue as an officer; or

(c) does not meet the standard of conduct the community reasonably expects of a police officer.[12]

  1. [8]
    Section 7.4(3) sets out an inclusive list of the sanctions that may be imposed by way of disciplinary action: “dismissal; demotion in rank; reprimand; reduction in an officer’s level of salary; forfeiture or deferment of a salary increment or increase; deduction from an officer’s salary payment of a sum equivalent to a fine of two penalty units.” There is also power to suspend any sanction imposed. This can be done pursuant to regulation 12 of the Police Service (Discipline) Regulations 1990 or s 7.4(3) of the PSA together with regulation 5 of the Regulations.[13]
  2. [9]
    There is no express statutory guidance as to the factors that should be taken into account in arriving at an appropriate sanction where a finding of misconduct is proved. In Crime and Misconduct Commission v McLennan & Ors[14] it was held, in the context of the judicial review of a decision as to sanction made under the PSA Act:

Neither the Act nor the Regulations proscribe or prescribe the factors which a decision-maker in a case such as the present is bound to consider in making the decision as to the discipline to be imposed. The relevant factors for consideration must therefore be determined by implication from the subject matter, scope and purpose of the Act.

  1. [10]
    The primary purposes of disciplinary proceedings within the police force are the protection of the public, to uphold ethical standards within the Service and to promote and maintain public confidence in the Service.[15] In Police Service Board v Morris,[16] Brennan J observed:

The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. It cannot be thought that the Police Regulations intend a police officer to be able to cloak with his silence activities that are prejudicial to the achievement of these purposes. To permit, under a claim of privilege, a subordinate officer to refuse to give an account of his activities whilst on duty when an account is required by his superior officer would subvert the discipline of the police force.

  1. [11]
    The nature and scope of the external review of a disciplinary decision was considered in Aldrich v Ross[17] where Thomas JA held:

The provision of a system which permits one external public review of the disciplinary decision is not only the protection against a wrong or unacceptable decision, it is also the provision of a source which can be expected to bring a perspective to bear from the public point of view. That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.

The decision 

  1. [12]
    The charge which has been substantiated against Mr Chadwick is:

That between 15 April 2016 and 1 June 2016 at Cairns and elsewhere, your conduct was improper in that you:

a. were untruthful (in a directed interview)

b. destroyed evidence

c. made a false statement

d. failed to treat others with respect and dignity.

  1. [13]
    Mr Chadwick accepted the misconduct alleged in the disciplinary hearing. On 13 November 2018 the Assistant Deputy Commissioner rendered his decision, finding the misconduct allegations substantiated, and imposed a sanction of dismissal from the QPS, effective from that date.

Relevant chronology  

  1. [14]
    Mr Chadwick was appointed a police officer on 27 August 2008 and progressed to Senior Constable on 30 August 2013.
  2. [15]
    On the night of 15 April 2016 and into the early hours of 16 April 2016 Mr Chadwick and Constable McKinnar (McKinnar) were working as partners on the night shift at the Cairns Police Beat. At about 1am on 16 April 2016 they responded to a report of disorderly behaviour near a nightclub in the Cairns Safe Night Precinct.
  3. [16]
    Upon arrival Mr Chadwick began questioning two French backpackers across the road from the nightclub who were urinating against a gate. McKinnar observed nightclub security staff interacting with Mr Baker, a 24 year old overseas visitor on holidays in Cairns. As McKinnar went to attend the nightclub, Mr Chadwick threw the passport and ID belonging to the French backpackers onto the ground where they had been urinating.
  4. [17]
    As McKinnar approached Mr Baker he told him he was under arrest for public nuisance upon which Mr Baker took flight. McKinnar raced after him into a dark alley and found him hiding behind an industrial bin. McKinnar stated that Mr Baker kicked his torch out of his hand and resisted arrest whereupon he had used “closed hand tactics to subdue” him.
  5. [18]
    Mr Baker suffered a bilateral fracture of the mandible; an oblique fracture at the base of the right coronoid process and a fracture through the left jaw extending to the coronoid process; a fracture of the left malar cheek with a fracture involving the zygomatic arch (cheek bone); and a further fracture involving the anterior inferior floor of the orbit (eye socket).[18] McKinnar had put his body camera into his pocket when he was running so had no body camera footage of the incident.
  6. [19]
    Mr Chadwick had driven to the alley after McKinnar and had then left the car to assist McKinnar. Mr Chadwick saw the interaction between McKinnar and Mr Baker and his body camera was on during the incident.
  7. [20]
    On 17 April 2016 Mr Baker attended Cairns Police Station and made a complaint, alleging he had been assaulted during his arrest the night before.
  8. [21]
    Mr Chadwick was interviewed on 10 May 2016 and made a statement on 30 May 2016. Mr Chadwick’s position at that time was that he had handed the passport and ID back to the French backpackers; McKinnar had struck Mr Baker twice to the head and shoulder area; and that Mr Baker was offering violent resistance to McKinnar.
  9. [22]
    Sometime later, on 7 July 2016, Mr Chadwick was again interviewed by the Crime and Corruption Commission. During that interview Mr Chadwick admitted to deleting the footage from his body camera which showed the interaction between McKinnar and Mr Baker; admitted to making a false and incomplete account of events on 10 May 2016 to CCC investigators; admitted making notes in his official police notebook of the relevant events which were false; and admitted providing an inaccurate statement on 30 May 2016. Mr Chadwick stated in the interview that he had thrown the passport and ID belonging to the French backpackers in urine; that McKinnar had used excessive force against Mr Baker; and that Mr Baker had not offered high level or violent resistance.
  10. [23]
    Mr Chadwick was granted an Indemnity by the Attorney-General for the State of Queensland on 17 January 2017. The indemnity indemnified Mr Chadwick with respect to any civil or criminal proceedings subject to him giving complete and truthful evidence in the trial for McKinnar.
  11. [24]
    On 9 June 2017 Mr Chadwick, in the presence of his solicitor, attended an interview with Ethical Standards Command. Mr Chadwick admitted he had been untruthful in previous interviews with the CCC; had deleted the body camera footage of the interaction between McKinnar and Mr Baker; had thrown the passport and ID belonging to the French backpackers in a puddle of urine and rainwater; made notes in his official police notebook which were false; and stated he did so to protect McKinnar.
  12. [25]
    McKinnar’s trial for assault occasioning grievous bodily harm commenced on 12 September 2017. Mr Chadwick gave evidence under oath where he admitted in open court to having told untruths; deleting evidence; making false notes; and admitting he was provided with an indemnity against prosecution. McKinnar was acquitted on 15 September 2017 in the Cairns District Court.

Submissions on behalf of Mr Chadwick 

  1. [26]
    Mr Chadwick seeks to have the decision as to sanction set aside and the following decision substituted:
    1. (i)
      The applicant be dismissed from the Queensland Police Service, however that dismissal be suspended for a period of at least 18 months, on the condition that he does not engage in any further misconduct; and
    2. (ii)
      The applicant, within 12 months, complete the CAP Book in Ethical Decision Making; and
    3. (iii)
      The applicant perform 100 hours of Community Service within 12 months of the sanction date.
  2. [27]
    Mr Chadwick submits that the Acting Deputy Commissioner failed to place appropriate weight on mitigating circumstances in arriving at the sanction. The mitigating factors are said to be:
    1. (a)
      Co-operation with the CCC, Ethical Standards Command and the Disciplinary Proceedings and acceptance of the allegations and facts that formed the basis of the allegations.
  3. [28]
    It is submitted that from the second interview with the CCC on 7 July 2016, when Mr Chadwick told the truth about the passports and the incident involving McKinnar, the applicant provided extensive co-operation to the CCC and the QPS ESC investigators. Mr Chadwick also gave evidence regarding the events of 16 April 2016 in committal proceedings and at McKinnar’s trial. It has been accepted that without his evidence ‘the prosecution case against McKinnar was substantially weaker without [his] evidence’ and ‘[his] evidence was crucial in relation to…proving that McKinnar struck Baker multiple times, and excluding potential defences’. Further, that when presented with the Disciplinary Hearing Notice, the applicant accepted the impropriety of his conduct and did not contest the allegations or facts underlying the allegations. This acceptance of responsibility is also relied upon as evidence of honesty and remorse. This aspect is considered further below.[19]
  4. [29]
    It is said that the respondent made too much of the failure to relinquish the camera on 7 July and the indemnity and did not give appropriate weight to the applicant’s correction of the record, his disclosure of facts that would not otherwise have been known to the investigator and on-going prosecution in McKinnar’s prosecution, and the importance of that co-operation from the perspective of the public interest. The public interest aspect is dealt with below.[20] In relation to the indemnity, Mr Chadwick submits, in effect, that too much weight was placed on the granting of an indemnity because without the applicant’s co-operation there would have been insufficient grounds for any prosecution action against McKinnar and, it followed, no criminal liability would have arisen with respect to the applicant.
    1. (b)
      Conduct was aberrant, out of character and did not persist.
  5. [30]
    It was submitted that the sanction should be mitigated because the conduct was “aberrant, out of character and did not persist”: that the conduct started with a grave error of judgement on the night of 16 April 2016 and, although compounded by events on 10 May 2016 and 30 May 2016, was remedied by 7 July 2016 when Mr Chadwick told the truth. Mr Chadwick submits that this conduct, having taken place over 11 weeks, cannot be regarded as persistent or as having occurred over an extended period. It was conduct that arose out of one shift, was aberrant and should be seen in the context of an otherwise unblemished record.
    1. (c)
      Public interest factors raised and outlined by CCC.
  6. [31]
    The applicant places weight on the letters provided by the CCC recommending that action be taken against the applicant at the level of Assistant Commissioner, which would preclude dismissal. It is significant, it is submitted, that the CCC, which is the oversight body for police discipline, did not consider that dismissal in these circumstances was warranted. There were important public interest considerations in encouraging police officers to come forward with truthful accounts even when they have been initially untruthful or withheld important information. The encouragement is particularly important when a truthful and complete account cannot otherwise be obtained. Further that, appropriate weight should be given to the significant public interest considerations of a full and frank police culture and the contribution of an officer to that culture, particularly when the officer is acting to their own detriment. If it were otherwise, it could lead to officers being reluctant to co-operate or to disclose actions or events that could render them liable to dismissal, despite co-operation. This would result in a perverse cultural outcome which was not in the public interest.
    1. (d)
      Insight and remorse.
  7. [32]
    Mr Chadwick also relies on the remorse and sincere regret he has shown since 7 July 2016, which notably occurred prior to any disciplinary referral and acceptance of the charges. In particular, that he brought the body camera footage to the CCC to see if they could recover the deleted recording. Mr Chadwick submits that he is ‘acutely aware’ of his obligations as a police officer both to the service and to the public and this awareness has been heightened as a result of his improper conduct. Mr Chadwick also submits that his commitment to the service has continued despite being criticised by fellow officers for providing that co-operation and the personal stress it caused him.
  8. [33]
    Further, acceptance of charges from the outset in disciplinary proceedings have been regarded as demonstrative of insight and remorse: McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 at [24].
    1. (e)
      Delay.
  9. [34]
    Mr Chadwick made submissions regarding the delay in standing him down and in ultimately dismissing him. He argues that the delay was significant, from 7 July 2016 when he made the admissions to being stood down on 15 February 2018 and receiving the disciplinary notice on 2 August 2018. This delay has, it is submitted, taken its toll on the applicant, professionally and personally. There was no reasonable explanation for the delay in that it was not a matter that required further investigation, given the admissions made by him in July 2017. Further, once McKinnar was acquitted on 16 September 2017, it was unreasonable that it took a further 5 months before he was stood down and a further 6 months before a disciplinary notice was issued. The delay cannot be attributed to the applicant, in that, although the applicant asked for the disciplinary matter to be held in abeyance until completion of McKinnar’s trial, this is standard practice.  The unnecessary delay should properly be taken into account as a mitigating factor in determining sanction.
    1. (f)
      Failure to stand the applicant down from duty.
  10. [35]
    The fact the applicant was not stood down from duty until 15 February 2018 makes it ‘difficult to accept’ that dismissal is viewed by the Commissioner as the only possible sanction. The applicant remained on active duty at the Cairns Police Beat until that time, a period of 19 months after the revelation by him of his dishonesty. The applicant refers to Crime and Corruption Commission v Assistant Commissioner Paul Taylor [2018] QCAT 80 citing Vann v Deputy Commissioner RN McGibbon at [39] where the Tribunal stated:

Notwithstanding the seriousness of the allegations against the appellant, he was not stood down from duty nor was he suspended from duty by the Commissioner pursuant to section 6.1 of the Police Service Administration Act. Given the findings of the Deputy Commissioner that the dismissal was the appropriate sanction it is somewhat incongruous that he was allowed to continue in service for in excess of 2 years. In my view it is essential that allegations of misconduct to be dealt with as expeditiously as is reasonably possible in fairness to the officer concerned, the Queensland Police Service and the public at large.

  1. (g)
    Undue weight placed on indemnity.
  1. [36]
    It is submitted that the Commissioner places significant and undue weight on the indemnity received by the applicant from the Attorney-General. The applicant submits that the Commissioner’s understanding of the effect of the indemnity was misconceived. As outlined above, the only evidence in respect of the applicant’s wrongdoing was his own admissions initially made to the CCC under directed interview. As such, those admissions, while able to be used for disciplinary proceedings, could not be used for prosecution purposes. The indemnity provided protection against any criminal culpability in respect of evidence the applicant gave in open court. It is submitted that Mr Chadwick could have elected to reman silent about what he observed in respect of McKinnar’s interactions with Mr Baker. In disclosing his lies, he rendered himself liable to a more serious disciplinary outcome than he would have received with respect to his conduct regarding the passports.
    1. (h)
      Prior unblemished record in almost a decade of service, including commendations and positive references from senior police officers regarding his conduct, character and work performance in the 2 years post the conduct.
  2. [37]
    Mr Chadwick provided references from colleagues who worked with Mr Chadwick before 16 April 2016 but also, importantly, who worked with him after it. Senior Sergeant Palmer states that he supervised Senior Constable Chadwick for six years and attests to his “high work ethic” and to the “significant results” he was able to achieve during the period of the Senior Sergeant’s supervision. He also refers to the fact that, although Senior Constable Chadwick had to deal with a significant amount of personal stress as a result of the disciplinary matter, that he did not take sick leave or let it affect his commitment and contribution to police operations generally and to the functionality of the police beat. He also states that he had “no hesitation in approving and recommending Senior Constable Chadwick for higher duties relieving at the rank of Sergeant on multiple occasions” and that as an Officer in Charge, he would always be willing to work with Senior Constable Chadwick. Senior Sergeant Hunter was the Officer in Charge of the Cairns City Police Beat and responsible for supervising Senior Constable Chadwick from 2011. Senior Sergeant Hunter also speaks of Senior Constable Chadwick’s strong work ethos, that he has been a “reliable mentor for junior police” and “has demonstrated his capacity to engage with members of the community in a professional and courteous manner”. 

(i)  Dismissal.

  1. [38]
    It is submitted that both parties accept that dismissal from the police service is only warranted where the purposes of discipline cannot be achieved by any sanction other than dismissal and indicates an officer does not have the requisite character and personal qualities to serve in the police force: DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162 at [27]. There are varying degrees of dishonesty. As Pincus J held in Attorney-General v Bax [1999] 2 the

It is not in my opinion, every proved act of dishonesty on the part of a practitioner which justifies a substantial penalty; dishonesty, like other forms of misbehaviour, has grades of seriousness…momentary, or at least temporary lapse from proper standards of honest behaviour is one thing; persistence in such conduct over a substantial period is another.[21]

  1. [39]
    In Crime and Misconduct Commission v Assistant Commissioner Paul Taylor & Shephard[22] the Tribunal held:

There is a distinction to be made between those cases where dishonesty is a breach of trust, intentional, continuous and frequent and cases where the dishonesty arises from a desire to assist or protect someone else, or to satisfy a need out of recklessness or is spontaneous or isolated.

  1. [40]
    The applicant submits that his misconduct, although serious, does not fall into the most serious of categories warranting dismissal, for the following reasons:
  1. The offending conduct was not persistent or continuing conduct. It occurred within an 11week period.
  2. The applicant, in deleting the bodycam footage, did so during a lapse of judgment in a misguided attempt to protect his colleague.
  3. His lies to the CCC were again a misguided attempt to protect his colleague.
  4. He did not personally gain from his conduct.
  5. He informed investigators of his untruths prior to any disciplinary action taken against him.
  6. His conscience dictated his truthful revelations to investigators – which demonstrates that he is not without integrity or principle.
  7. His untruths relating to the deletion of the bodycam footage and the incident between McKinnar and Baker were unlikely to have been uncovered during any investigation and only came to light by virtue of his admissions.
  8. He has accepted the disciplinary charges and the facts underlying them.
  9. He has extensively co-operated with the various authorities.
  10. There was collusion with any party in respect of his misconduct.
  11. He has demonstrated significant insight and remorse and has demonstrated an ongoing work ethic, professionalism and willingness for rehabilitation.
  1. [41]
    It is submitted that a more serious category of dishonesty would include dishonesty over a more extensive period, denial of the charges and the facts underlying them, collusion, derivation of benefit, and a failure to accept complete responsibility for their actions and a resultant lack of insight or remorse. These factors were not evident in the applicant’s case. Accordingly, and based on a review of other cases, the imposition of a sanction less than dismissal, is warranted.
  2. [42]
    It was submitted that Shepherd[23] and Wadham v Deputy Commissioner Ian Stewart,[24] where the sanction of dismissal was imposed, were distinguishable because in those cases the relevant police officer had been dishonest over a longer period (14 months and 5 months respectively) and demonstrated a lack of insight and remorse. Further, in Re Bowen,[25] which also involved a police officer seeking to protect a colleague and then lying about it afterwards, weight was given to the police officer’s 30 years of meritorious service and a sanction of demotion in rank, rather than dismissal was imposed. McLennan was referred to as an example of where a suspended dismissal was imposed in circumstances of continued dishonesty over a 3 year period.    

Submissions on behalf of the respondent

  1. [43]
    The respondent submits that the correct and preferable decision is to confirm the sanction of dismissal. In relation to the factors referred to above by the applicant, the respondent makes the following submissions.
  2. [44]
    The respondent submits that it is immaterial that the deletion of the bodycamera footage was done prior to knowledge of any complaint. The important circumstances are that the applicant’s conduct indicates he knew the conduct of McKinnar was wrong but sought to effectively cover it up. That the deletion was done in a moment of panic and with a misguided sense of loyalty to protect a colleague seeks to play down the conduct and reveals a lack of insight into his offending conduct. Further, on 10 May 2016 at the first CCC interview, the applicant knew of the complaint but persisted with the untruths.
  3. [45]
    The disclosure of the truth should have occurred before 7 July 2016. The applicant’s disclosure of all relevant facts relating to the investigation of McKinnar’s conduct and co-operation with investigators, from a public interest perspective, should have been automatic. The failure to do so was to protect McKinnar’s inappropriate conduct, which, on any view, was serious. The applicant’s conduct was to protect McKinnar not Baker. The co-operation with the CCC and ESC investigators, relied upon by the applicant, should have taken place from the start and not at a later stage when the applicant could no longer live with the deceit. Investigators rely upon QPS members to demonstrate these qualities at all times.
  4. [46]
    In relation to the submission that the conduct was aberrant and did not persist it is submitted that the conduct was extremely serious and that it was done to protect McKinnar shows a total lack of integrity to continue as a member of the QPS, referring to Deputy Commissioner v Dark [2012] QCA 228 at [35].
  5. [47]
    The views expressed by the CCC, in particular that disciplinary actions at the level of Assistant Commissioner was appropriate, in no way binds the respondent: R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 at 527. Reasonable minds may differ as to what level of disciplinary action should be undertaken by a prescribed officer against a QPS member (Buck v Barome (1976) 135 CLR 110 at 118-119) but ultimately it is a matter for the QPS. The  public and the QPS would expect police officers to be truthful at all times. The submission by the applicant that officers will be reluctant to co-operate if it would render them liable to dismissal is misplaced because the officer was only subject to disciplinary action because of his own actions, namely his untruthfulness and dishonesty. High ethical standards can only be maintained if QPS members are transparent and co-operative when the conduct of another officer is called into question.
  6. [48]
    It is not clear how delay, if there is any attributable to the QPS, is a mitigating factor in determining sanction.
  7. [49]
    In relation to the time it took to stand the applicant down, it is said that the respondent was plainly cognisant of the investigation process itself and the criminal process against McKinnar to be finalised before it was considered appropriate to stand the applicant down.
  8. [50]
    In relation to the indemnity, the respondent submits that whether or not the ambit of the indemnity was misunderstood does not in any way reduce the seriousness of the applicant’s dishonesty.
  9. [51]
    Finally, the respondent rejects the contention that the applicant’s conduct does not fall into the most serious of categories warranting dismissal and that the purpose of discipline can be achieved by the imposition of a lesser sanction.  The respondent contends that the misconduct plainly undermined the reputation of the QPS, and the fact the applicant was untruthful and prepared to destroy evidence is inimical to being a member of the QPS. The seriousness of the conduct plainly outweighs any favourable mitigating factors and there is, accordingly, no warrant to depart from the sanction imposed by the respondent: Aldrich v Ross [2001] 2 QdR 235 at [45]. 

Consideration of sanction

  1. [52]
    I approach the issue of sanction afresh.
  2. [53]
    The misconduct that led to Mr Chadwick’s dismissal all stemmed from the one shift. Apart from his dealings with the French backpackers, in particular his conduct in throwing their passport and ID in a puddle of urine and rainwater and which he falsely denied, the other three incidents of misconduct all relate to the pursuit and arrest of Mr Baker and the investigations which followed.
  3. [54]
    Mr Chadwick activated his body camera when he was running after Mr Baker, left it running during the interaction between McKinnar and Mr Baker and then deleted it later, either during the shift or just after on the morning of 17 April 2016.
  4. [55]
    During the interview of 7 July 2016 with CCC investigators Mr Chadwick described how he came to delete the footage:

So I’ve seen Mat doing that I thought well that’s a bit, that’s a bit heavy handed, and later on during the shift I’ve had a I never told Mat that I had foot-, had a quick look at it, very quick look at it to see that I had the footage I had a look that yeah sees us going across the road to Baker and I’ve scrolled forward to see what was in the alley and I can’t remember what I’ve seen I only looked at it for a minute and I was like this doesn’t look good for Mat so I stupidly um deleted it, in-in a bit of a panic.[26]

  1. [56]
    Mr Chadwick admitted that he had heard “whispers” of a complaint having been made by Mr Baker at the station the day after the incident but maintains that the footage was deleted before he knew a complaint had been made.
  2. [57]
    Mr Chadwick submits, in effect, that the circumstances in which the footage was deleted show a momentary lapse of judgment. Mr Chadwick says, in effect, that he deleted the footage because he knew or was concerned it might incriminate his partner, Constable McKinnar. In his own words, “it didn’t look good” and so he deleted it in a moment of “panic and confusion” and due to a misguided “schoolboy” sense of loyalty to his fellow officer. Mr Chadwick submits that he did not do it for personal gain or protection.
  3. [58]
    The protection of McKinnar is not a valid reason for deleting potential evidence of an alleged criminal assault. As Lord Justice Gross observed in Salter v Chief Constable of Dorset:

…the operational integrity of the police is of fundamental importance. A central role of the police involves the gathering and preservation of evidence. The destruction of evidence is inimical to the office of constable.[27]

  1. [59]
    The deletion of evidence, in my view, was serious misconduct. It was made worse by Mr Chadwick initially lying about the footage and then by covering up what actually occurred in the alley by lying to investigators, making false notes in his official police notebook and by signing a statement which was false in material respects.
  2. [60]
    Re Bowen[28] involved misconduct by a police officer in disclosing confidential information to a police officer under his command that there was a complaint that the officer had misappropriated a tool box from a crime scene; falsely denying to an officer of the Criminal Justice Commission that he had done so; and then furnishing a signed witness statement, duly endorsed in accordance with the Oaths Act, to the effect that he had not made the relevant disclosure. Demack J considered the three matters had to be viewed together because they had a cumulative effect. As Demack J held:

The significance of the disclosure lay, not only in what in fact happened, but also in what may have happened. The phone call opened the possibilities that the tool box, worth $18 000, may have been disposed of to destroy evidence and that the subordinate, being forewarned, may have frustrated the investigation. The first possibility involved a disregard of the rights of the tool box owner and did not protect that person the unlawful disruption of good order that results from the actions of other persons. The public was not protected. Neither was the police service protected because the phone call was a breach of a confidence that prejudiced the detection of an offender.

When the appellant lied on 3 June 1993, he did something which erodes public confidence in the police service, and which also affects the trust other members of the police service have in each other. He lied to hide his own misdoing. When he was false to his oath on 10 August 1993, he put himself in the situation where his testimony was forever open to challenge. This, in a significant sense, denied the public the use of his services in the active detection of crime. It also erodes public confidence and adds weight to the arguments of those who seek to curtail the powers of the police service. It may destroy the trust other members of the police service should have in him. (emphasis added)

  1. [61]
    In Re Bowen it was argued that the sentence which had been imposed by the Misconduct Tribunal, to reduce the appellant in rank, involved a very significant financial penalty, so that the appellant’s 30 years of meritorious service was not adequately recognised. This proposition was rejected by Demack J who held:

It seems to me that the appellant’s 30 years of meritorious service have kept him in the police service. Without those years of service, his three acts of official misconduct could have justified his dismissal.[29]

  1. [62]
    The general observations of Demack J are, in my view, equally applicable here, in particular that Mr Chadwick had, by destroying the evidence and making false statements in the course of the investigations, put himself in a position whereby his testimony was open to challenge, thereby denying the public the use of his services in the active detection of crime. Indeed, as matters transpired the veracity of Mr Chadwick’s evidence was attacked in the trial of McKinnar because of those very matters. Moreover, Mr Chadwick’s misconduct occurred in respect of an alleged criminal assault involving serious injuries to Mr Baker and carried out in the course of a police officer’s duties. Mr Baker was entitled to the benefit of all relevant evidence. That he was deprived of that evidence by a senior member of the police service has the potential to erode public confidence and destroy the trust of other members of the police force.[30] In the end, Mr Chadwick’s conduct was to favour McKinnar over the protection, potentially, of the public.
  2. [63]
    The A/D Commissioner submits that the conduct of Mr Chadwick was serious and eroded public confidence in the police service. Further, that his treatment of the French tourists was also harmful to the reputation of the Queensland police service on an international level. I accept this to be the case. I note that Mr Baker, too was a tourist.
  3. [64]
    The issue arises as to what weight should be placed on the fact that Mr Chadwick ultimately told the truth, about his conduct towards the French backpackers, about McKinnar’s conduct towards Mr Baker and about deleting the camera footage, which, it was submitted, would never, otherwise, have come to light.   
  4. [65]
    In this context I have given considerable weight to the letter from Mr MacSporran QC, Chair of the CCC who states:

Whilst initially untruthful, Chadwick provided a truthful version of events in a second disciplinary interview. Amongst other things, he admitted deleting body worn camera footage, a fact unlikely to have been otherwise detected by investigators. Importantly, he agreed to give evidence in McKinnar’s committal and trial in circumstances where the prosecution case against McKinnar was substantially weaker without Chadwick’s evidence. Chadwick’s evidence was crucial in relation to, for example, proving that McKinnar struck Baker multiple times and excluding potential defences. Whilst McKinnar was acquitted at trial, that does not detract from the fact that Chadwick cooperated by giving evidence, as he had agreed to do.

Whilst Chadwick’s actions were very serious and would usually warrant dismissal unless very exceptional circumstances existed, I respectfully submit that, in this particular matter, there is an important reason to mitigate such a sanction, namely to ensure that officers are encouraged to come forward with truthful accounts of events and give evidence against offending police officers, even in circumstances where they have been initially untruthful or withheld or destroyed information. This encouragement is particularly important where a truthful and complete account of what happened cannot otherwise be ascertained, and, in my view, will substantially contribute to a culture where police officers feel that cooperating with investigators will be in their best interests.

  1. [66]
    I have also taken into account the letter from Mr Mark Ainsworth, Director, Corruption Operations to Assistant Commissioner O’Regan, Queensland Police Service of 31 October 2016.
  2. [67]
    The A/D Commissioner, in considering the CCC letter, makes the point that its recommendation was based on the assistance Mr Chadwick gave to their investigation whereas he must consider the misconduct from the perspective of the police service. Further, that the position adopted in the CCC letter is inconsistent with the officer’s fundamental, non-discretionary duty under s 7.2 of the PSA Act to report misconduct. The A/D Commissioner states:

Our extraordinary powers, for example, the power to take a citizen’s liberty and the potential to use lethal force, makes our strict code of ethics critical to our ability to function in our office of public service. It would be inconsistent with the PSSA to support the notion a police officer should be given a lighter sanction for being dishonest so as to encourage police to report misconduct, something which we are legally and ethically required to do anyway.

  1. [68]
    As Mr MacSporran QC says there is importance and benefit in encouraging officers to report rather than to conceal misconduct even when there has initially been a cover up or failure to disclose. Unfortunately, these situations arise and a position which offers an inducement to a police officer to disclose information previously withheld is preferable to a position which does not. Ultimately, the position should be one that enforces the contemporaneous reporting of misconduct. If a failure to report can be excused by reporting later, after matters were initially covered up, the obligation in s 7.2 is necessarily compromised or undermined.  
  2. [69]
    Mr Chadwick’s case, however, is not one of merely failing to report what he saw. It is also, and importantly in my view, a case where he deliberately deleted evidence of the truth. 
  3. [70]
    In my view it is reasonable to view the co-operation Mr Chadwick gave, both in the course of the investigation and in the trial, in the context of the indemnity. While there may have been some remorse and insight involved in deciding to co-operate from 7 July 2016, there was also, in my view, an element of self-preservation.
  4. [71]
    I accept the submissions of the Acting Deputy Commissioner in relation to the circumstances of the “offer” to relinquish the camera. The body camera footage was withheld from CCC investigators during the interview. When Mr Chadwick was asked for the camera, he did not reply and his legal representative made it clear the camera would only be relinquished if an arrangement was made to secure Mr Chadwick’s co-operation.[31]  Indeed it is apparent from the interview that the camera was given to Mr Chadwick’s solicitor so that it could be used as leverage in any negotiations regarding Mr Chadwick’s co-operation. The interview proceeds as follows:

DP: You got the equipment um is that to hand to me to take back to Brisbane?

CP: The (UI) is in my possession.

DP: It’s in oh it’s in your possession?

CP: Correct.

DP: That makes it difficult for me.

CP: It does.

DP: It does, it does.

CP: That’s why it’s in my possession.

  1. [72]
    The CCC served Mr Chadwick with a Notice to Discover on 4 August 2016 to compel Mr Chadwick to relinquish the camera. It is reasonable to infer that the reason for producing the body camera (from which nothing was retrieved in any event) was to try to negotiate an indemnity for Mr Chadwick. In this light, I consider the handing over of the camera to be of limited value as evidence of remorse or regret.
  2. [73]
    I accept, on the evidence before me, that the conduct was “aberrant”. There was no evidence that Mr Chadwick had been involved in conduct of this nature before, indeed, Mr Chadwick has an otherwise unblemished record. He has also received commendations and favourable reports. Further, Senior Sergeant Hunter, who supervised Mr Chadwick from 2011, expressed his opinion in a reference that Mr Chadwick’s actions at the time were not an accurate reflection of his character.[32] However, that the conduct was aberrant is not of sufficient weight to outweigh other relevant factors.
  3. [74]
    Although there was over a two year delay from the events in April 2016 and Mr Chadwick’s dismissal in November 2018, part of the delay was due to Mr Chadwick’s request to have the disciplinary matter held in abeyance until completion of McKinnar’s criminal trial in which Mr Chadwick was a witness for the prosecution. In those circumstances I do not consider the delay to be a mitigating factor. In any event, I consider that the delay provided Mr Chadwick with the opportunity to continue working and to demonstrate the worth of his continued contribution. It also provided him with the opportunity to provide to the Tribunal further evidence by way of references, which evidence I have taken into account.
  4. [75]
    Both parties accept that dismissal from the police service is only warranted where the purposes of discipline cannot be achieved by any sanction other than dismissal. It has been said to indicate an officer does not have the requisite character and personal qualities to serve in the police force.[33] It is also acknowledged that not every instance of misconduct bearing on an officer’s integrity should result in dismissal. It has been held that “dishonesty, like other forms of misbehaviour, has grades of seriousness… momentary, or at least temporary lapse from proper standards of honest behaviour is one thing; persistence in such conduct over a substantial period is another”.[34]
  5. [76]
    In my view the level of dishonesty here was such that dismissal is the appropriate sanction. This is because Mr Chadwick knew that what he had witnessed was “not good” and yet, when he heard “whispers” of a complaint having been made, he deleted the footage of the incident, lied about what happened to CCC investigators and signed a statement he knew to be false. This occurred over the course of about 3 months. It was not in that sense a temporary or momentary lapse of judgment.
  6. [77]
    In summary, the arguments in favour of Mr Chadwick not being dismissed in the end come down to the following. Mr Chadwick has had an unblemished career with the police service and his conduct was aberrant and out of character. He has been a hard-working and dedicated police officer. He made a serious error of judgment when he deleted the footage from his body camera. Having made that error, his conduct in the short term thereafter was compromised by it and he continued to mislead the investigators by reason of the error he first made. Ultimately, however, he realised that he was doing the wrong thing and that he should tell the truth. He did that, and thereafter gave evidence in the trial of McKinnar. Although he was granted an indemnity from prosecution that should not detract from his decision to tell the truth and to give evidence. His course of conduct has caused him significant remorse but also criticism from fellow police officers. The value of his evidence and his decision to tell the truth was recognised by Mr MacSporran QC, the CCC Chair and Mr Mark Ainsworth, Director, Corruption Operations. Their opinion on the appropriate sanction should be given significant weight. Mr MacSporran speaks of the importance in the context of future investigations by the CCC of police officers being forthcoming in the course of those investigations. There is a significant public interest in the views expressed by Mr MacSporran being given effect in Mr Chadwick’s case. Although the conduct is very serious warranting a suspended dismissal, a dismissal in all of the circumstances would be too harsh and against the public interest.
  7. [78]
    The arguments made on behalf of the A/D Commissioner for the dismissal of Mr Chadwick is in broad terms as follows. Mr Chadwick’s conduct constituted a serious breach of police ethical standards. Mr Chadwick was a witness to, and the senior officer at, a serious physical confrontation between McKinnar and Mr Baker. Whatever the rights and wrongs of that confrontation, bearing in mind that McKinnar was acquitted, it was serious misconduct to fail to report the conduct in the first place and to delete the camera footage. Mr Chadwick could only have deleted the footage because he did not wish it to be available as evidence. Having dishonestly deleted the camera footage Mr Chadwick continued to mislead the CCC investigators during the investigation into Mr Baker’s complaint. This misleading and dishonest conduct occurred on a number of occasions over a period of some months. It was only when McKinnar was charged and it became apparent that there would be a trial that Mr Chadwick decided to tell the truth. The evidence which Mr Chadwick ultimately gave was given in the context of an indemnity from prosecution that he obtained from the Attorney-General. The indemnity from prosecution has prevented him from being prosecuted as otherwise he may well have been. His late decision to give an honest account of the events which had occurred was commendable but the seriousness of his earlier conduct remains. While there may be a public interest in encouraging police officers to co-operate with investigations by the CCC there is also, self-evidently, a significant public interest in a police officer complying with his or her duties of honesty, candour and disclosure at all times. It would cause significant harm to the reputation of the police service, and would send completely the wrong message to other police officers when so much is being done to improve police culture, to permit Mr Chadwick to remain in the police force. This public interest outweighs the public interest considerations raised on behalf of Mr Chadwick. Finally, the opinion of the A/D Commissioner should be given significant weight because it is the A/D Commissioner, standing in the shoes of the Commissioner, who is responsible on a daily basis for police discipline.
  8. [79]
    I have considered the merits of the competing arguments. In my opinion, Mr Chadwick should be dismissed from the police service. I have taken into account all that has been ably said on his behalf but, in my view, the conduct is of such seriousness as to warrant dismissal.
  9. [80]
    The decision of the Deputy Commissioner to dismiss Mr Chadwick is confirmed.

Footnotes

[1]  CCA, s 219B.

[2]  Under s 444 of the CCA, s 219G(2) as in force before the commencement of the current CCA, continues to apply to a reviewable decision made before the commencement (being the date of assent on 30 October 2019).

[3]  CCA, s 219BA.

[4]  CCA, s 219H.

[5]  CCA, s 219H(2).

[6]  QCAT Act, s 18 and s 20.

[7]  QCAT Act, s 24.

[8] Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 273; Aldrich .

[9]  [2001] 2 QdR 235 at 254-255.

[10]  [2015] QCA 218 at [7], per Fraser JA, as agreed by Morrison JA and Mullins J.

[11]  [2008] QSC 23 at [9] per Daubney J.

[12]  The same definition appears in s 1.4 of the PSA.

[13] Crime and Corruption Commission v Deputy Commissioner of Police, Ross Barnett and Hopkins [2017] QCA 320 at [42] and [70]; Crime and Misconduct Commission v McLennan [2008] QSC 23 at [44].

[14]  [2008] QSC 23 at [19].

[15]  CCA, s 219A; The Regulations, reg 3(b).

[16]  (1985) 156 CLR 397 at 411-412.

[17]  Ibid at 257; Flegg v Crime and Misconduct and Anor [2013] QCA 376, [16].

[18]  Statement of Dr Brian P Finn (Oral and Maxillofacial Surgeon) on 26 September 2016.

[19]  See heading ‘Demonstration of remorse and insight’.

[20]  See at heading (f).

[21]  With whom McPherson JA and Shepherdson J agreed; cited with approval in Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66 at [14]; DA v Deputy Commissioner (No 2) [2013] QCATA 162 at [27].

[22]  [2018] QCAT 80 at [84].

[23] Crime and Misconduct Commission v Assistant Commissioner Paul Taylor & Shephard [2018] QCAT 80.

[24]  [2010] QCAT 578.

[25]  (1995) 2 QdR 8.

[26]  ESC Internal Investigation Report CSS 2016/00621 at 69.

[27]  [2012] EWCA Civ 1047.

[28]  [1996] 2 QdR 8 at 11.

[29]  Ibid at 12.

[30] Deputy Commissioner Stewart v Dark [2012] QCA 228 at [21].

[31]  Record of Interview with Bret Chadwick on 7 July 2019, 11-13.

[32]  Reference by Senior Sergeant Hunter annexed to the Applicant’s Submissions dated 19 October 2018 at [6].

[33] DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162 at [27].

[34] Attorney General v Bax [1999] 2 QdR 9 at [20] cited with approval in Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66 at [14]; DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162 at [27].

Close

Editorial Notes

  • Published Case Name:

    Bret Chadwick v Acting Deputy Commissioner DA Wright

  • Shortened Case Name:

    Bret Chadwick v Acting Deputy Commissioner DA Wright

  • MNC:

    [2020] QCAT 66

  • Court:

    QCAT

  • Judge(s):

    Traves

  • Date:

    06 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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