Tolsher v Acting Assistant Commissioner Hollands
[2015] QCAT 391
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- Unreported Judgment
- Tolsher v Acting Assistant Commissioner Hollands[2015] QCAT 391
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Tolsher v Acting Assistant Commissioner Hollands[2015] QCAT 391
Tolsher v Acting Assistant Commissioner Hollands[2015] QCAT 391
CITATION: | Tolsher v Acting Assistant Commissioner Stephen Hollands [2015] QCAT 391 |
PARTIES: | David Tolsher (Applicant/Appellant) |
| v |
| Acting Assistant Commissioner Stephen Hollands (Respondent) |
APPLICATION NUMBER: | OCR224-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 24 August 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 24 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | POLICE DISCIPLINARY – Review of decision that conduct is misconduct – where finding of misconduct meant suspended sanction revoked – where applicant suggested consequences of finding should be taken into account in categorising conduct – where this argument rejected – where there were exceptional circumstances – where conduct not misconduct. Crime and Corruption Act 2001 (Qld), s 219L Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, s 61 Transport Operations (Road Use Management) Act 1995 (Qld) Aldrich v Ross [2001] QLR 235 Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320 Chapman v CMC & Rynders [2012] QCATA 16 CMC v Chapman & Anor [2011] QCAT 229 Melling v O'Reily [1991] Misconduct Tribunal 6 Orme v Atkinson (Misconduct Tribunal, 17 September 1999) Shauer v Banham (Misconduct Tribunal, 24 February 1997) |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Mr Gnech, Solicitor Queensland Police Union |
RESPONDENT: | Mr McLeod of Counsel. |
REASONS FOR DECISION
- [1]David Tolsher is by all accounts a dedicated and hardworking police officer. Unfortunately he has made decisions in the last couple of years which have had a significant adverse impact on his career.
- [2]In late 2012 Sergeant Tolsher was subject to disciplinary action for conduct involving drink driving whilst off duty. On review, the Tribunal decided that the correct and preferable sanction in the circumstances was that Sergeant Tolsher be demoted from the rank of Senior Sergeant 4.1 to Sergeant 3.1 to be suspended for 2 years on conditions that he not commit any further acts of misconduct during that period and that he be demoted from Senior Sergeant 4.1 to Sergeant 3.4 during those 2 years.
- [3]Following his conviction for drink driving a restriction was placed on his license to the effect that he could only drive a vehicle fitted with an alcohol immobiliser for a period of time. On his return to work Sergeant Tolsher was placed in the role of officer in charge of the Oxley crime unit. During the course of conducting an investigation into property offences he made a decision to drive a police vehicle which was not fitted with an immobiliser.
- [4]He was charged with and plead guilty to driving in contravention of his drivers license conditions. Further disciplinary action followed. The relevant charge was that in driving the QPS vehicle without the interlock he drove in contravention of the Transport Operations (Road Use Management) Act 1995 (Qld), and his conduct in doing so contravened the policy regarding compliance with state laws and the relevant professional conduct standard of practice.[1]
- [5]Sergeant Tolsher consented to the disciplinary proceedings being conducted by means of an expedited process called administrative consensual disciplinary process. In doing so he did not contest the conduct or the proposed sanction.
- [6]On 8 April 2014 Acting Assistant Commissioner Stephen Hollands determined that the charge was substantiated, the conduct should be classified as “misconduct” and imposed a penalty of a fine of 1 penalty unit ($110).
- [7]Whilst Sergeant Tolsher had made submissions that the conduct did not amount to misconduct and should be classified as a breach of discipline he chose not to review the finding in QCAT.
- [8]He was aware that a finding of misconduct could trigger a revocation of the suspended sanction imposed by QCAT but he was under the misapprehension (as were his legal representatives and apparently ethical standards) that the invoking of the suspended sanction was discretionary and that he would be given the opportunity to show cause to an authorised officer why this should not occur.
- [9]As it transpires, there was no such discretion. Section 219L of the Crime and Corruption Act 2001 (Qld) provides for the immediate revocation of the suspension order by QCAT if the officer contravenes a condition during the operational period of the suspension.
- [10]This provision and the effect of it did not come to light until a decision was made by Acting Deputy Commissioner Gee on 11 September 2014 following the show cause process. The Acting Deputy Commissioner referred to s 219L and ordered the immediate revocation of the suspended sanction.
- [11]Sergeant Tolsher now seeks to review the decision of Acting Assistant Commissioner Hollands that the conduct of driving without an immobiliser should be categorised as “misconduct”.
- [12]Sergeant Tolsher’s application for review is now some 5½ months out of time. He has applied for an extension of time.
- [13]At an oral hearing I heard both the application for an extension of time and submissions on the substantive review.
Should Sergeant Tolsher be granted an extension of time to review the decision?
- [14]The Tribunal can extend time under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) unless to do so would cause prejudice or detriment to another party which cannot be remedied by an appropriate order for costs or damages.
- [15]It has been accepted in various Tribunal decisions[2] that the discretion should be exercised in accordance with the following principles developed by the Courts:
- a)Whether there is a satisfactory explanation for the delay;
- b)The strength of the applicant’s case;
- c)Prejudice to adverse parties;
- d)Length of the delay;
- e)Overall, whether it is in the interests of justice to grant the extension.
- a)
Reasons for delay
- [16]I am satisfied that there is in Sergeant Tolsher’s case a satisfactory (although misguided) reason for the delay.
- [17]His legal representative Mr Gnech provided an affidavit which set out the reasons for the delay. Essentially, Sergeant Tolsher chose not to review the finding of misconduct because he was under the mistaken belief that he could challenge the revoking of the suspension at the show cause proceedings.[3]
- [18]Mr Gnech says the first that he or his client became aware of the effect of s 219L was on receipt of Acting Deputy Commissioner Gee’s decision dated 11 September 2014. He said they sought counsel’s advice and on receipt of same on 26 September (which confirmed Acting Deputy Commissioner Gee’s position) the application to review was filed straight away.
- [19]I accept, as pointed out by the respondent,[4] that it was never going to be possible for Acting Deputy Commissioner Gee to overturn a finding for misconduct even if he had a discretion not to revoke the suspension.
- [20]I do not think, however, that this detracts from the genuiness of Sergeant Tolsher’s position that he chose not to challenge the finding at the time because he thought he could argue against the revoking of the suspension triggered by a finding of misconduct.
- [21]The fact that he was prepared to live with a finding of misconduct if he could avoid the consequences does not mean that he took no issue with it. It is understandable that his principal concern was the impact of the decision.
- [22]I find that there is a satisfactory explanation.
Strength of the case
- [23]Whilst it is not necessary in merits review to identify an error in the decision makers decision, Sergeant Tolsher relies on two perceived errors in the decision as a basis for setting it aside:
- a)The Respondent erred by finding the conduct amounted to misconduct by failing to take into account the strict effect of s 219L of the Crime and Corruption Act when finding the conduct amounted to misconduct and not a breach of discipline;
- b)The Respondent erred by finding the conduct amounted to misconduct by failing to take into account ‘very exceptional’ circumstances arising in this matter.
- a)
- [24]The Respondent says Sergeant Tolsher’s prospects are poor. For the reasons set out below, in my consideration and determination of the substantive review, I disagree. An extension of time should not be refused on the basis that the review lacks merit.
Will the extension of time prejudice the Respondent?
- [25]The Respondent submits in this regard that in cases where the validity of the decision making process is being considered there is substantial public interest in being able to say, after a specified time that a decision can be treated as beyond attack.[5]
- [26]Whilst this is no doubt correct, the point is that the extension of time provisions are ‘an exception to this.’[6] It has been noted by the Appeal Tribunal[7] in considering whether there is a prejudice to the Respondent, the overriding consideration is ‘can there be a fair trial?’ In this case the granting of the extension of time is not going to impact on the ability of the Respondent to receive a fair hearing. The Respondent has not suggested that it will. All of the material has been prepared and filed and I am able to continue to hear and determine the substantive review without further delay.
The overall interests of justice
- [27]I am satisfied that in this case it is in the interests that the extension of time be granted.
- [28]The delay was not significant, Sergeant Tolsher has a satisfactory explanation for the delay, he has prospects of success and there is no real prejudice to the Respondent. The extension of time to review is allowed.
Was Sergeant Tolsher’s conduct correctly categorised as misconduct?
- [29]This is a merits review. The Tribunal must produce the correct and preferable decision by way of a fresh hearing on the merits. [8]
- [30]Sergeant Tolsher says the decision to categorise his conduct as “misconduct” was wrong in that in doing so disregard was had to the severe consequences of the decision and the exceptional circumstances surrounding the conduct.
- [31]The Respondent says the conduct was properly categorised as “misconduct”.
- [32]The evidence and material before the decision maker[9] records the following factual circumstances:
- Sergeant Tolsher took leave whilst his drivers license was suspended for six months. On his return he was put in the role of Officer in Charge of the Oxley Property Crime Unit.
- Shortly after, on the morning of 22 March 2013 he was driving his children to school in his own car (fixed with an interlock). He was in Goodna. He received information regarding the whereabouts of certain suspects.
- He says he contacted the Oxley CIB and was told no one could assist him.
- He went to the Goodna Child Protection Investigation Unit and took possession of an unmarked police vehicle. It was not fitted with an interlock.
- He drove the vehicle to a number of locations making enquiries to ascertain the location of suspected offenders wanted for numerous criminal offenses.
- He said he took the vehicle believing that it was urgent to locate the offenders. He said the urgency was the result of the fact that he had been chasing the suspects for many weeks, the possibility they would be there sleeping, and to prevent them committing further offenses. He also said he had felt pressure from his superior, Detective Inspector Acreman to locate the offenders. This was particularly so as he had only recently returned to work and was keen to impress.
- The Respondent accepted that Sergeant Tolsher was acting with a sense of urgency regarding the necessity to locate and apprehend the offenders. He was not convinced however,that there was an actual urgency that would excuse a conscious decision by Sergeant Tolsher to drive in breach of the restrictions placed on his license.
- It is accepted that the result of Sergeant Tolsher’s actions in locating the suspects was that six or more offenders were apprehended on more than 122 property and personal violence offenses.
- It is also accepted that Sergeant Tolsher did not attempt to drive an unfitted vehicle to avoid detection for further alcohol related driving offences. He had submitted to tests in his private vehicle immediately before and after driving the police vehicle.
- Sergeant Tolsher pleaded guilty to the traffic offence and was punished.
- [33]Sergeant Tolsher says that in determining if the conduct amounts to “misconduct” the consequences such a finding would have upon him is a relevant factor which must be taken into account.
- [34]He says here a finding of misconduct enlivens the strict provisions of s 219L. The consequence is that his suspended sanction is revoked and he is permanently demoted from Senior Sergeant to Sergeant. This he says would amount to a significant penalty. He says the original decision maker did not take this into consideration.
- [35]The Respondent disputes this and says it was taken into account. I accept that. The Respondent decision maker, whilst apparently not aware of the strict effect of s 219L, did take into account Sergeant Tolsher’s submissions that the revocation of the suspension was at least possible if a finding of misconduct were made.[10]
- [36]I reject Sergeant Tolsher’s argument that the consequences of a finding of misconduct should be taken into account when classifying conduct. In my view that should have no bearing on the determination.
- [37]If the conduct is otherwise misconduct the fact that by the operation of s 219L it leads to severe consequences does not take away from the nature of the conduct. I agree with the Respondent’s submission that it would be:
because of the Applicant’s own conduct that s 219L operates and leads to an inevitable consequence because of the nature of the section itself. The consequence is not punitive and the purpose of disciplinary proceedings is achieved. [11]
- [38]The question then is whether the conduct was otherwise correctly categorised as “misconduct” in view of all of the circumstances outlined above.
- [39]Sergeant Tolsher concedes that he knowingly breached the restriction on his license and accepts that this conduct was inappropriate but says in the circumstances it should be categorised as a breach of discipline and not misconduct.
- [40]Misconduct is defined in s 1.4 of the Police Service Administration Act as conduct that:
- a)Is disgraceful, improper or unbecoming of an 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.
- a)
- [41]Sergeant Tolsher has referred the Tribunal to the following passage in the decision of Dr Forbes in Shauer v Banham:[12]
While all misconduct is a breach of discipline, not every breach of discipline is misconduct. Misconduct is merely one of seven grounds of disciplinary action and on a general ascending scale it comes just below the stigma of a conviction for an indictable offense… reasonable members of the community do not regard police officers as professionally unfit or substandard just because they failed to obey every jot and tittle of departmental instructions. Reasonable people may say ‘he could have done better there’ or ‘that was a bit risky’ without applying the stigma of misconduct which is a pejorative charge to be used with due discrimination.
- [42]Sergeant Tolsher also refers the Tribunal to the comments of the former Misconduct Tribunal in Orme v Atkinson.[13] The Tribunal found for the conduct to be misconduct for disciplinary purposes ‘there needs to be some nexus or some factor which raises the conduct to another level or “puts it over the line” so far as the reasonable expectation of the public are concerned.’
- [43]Sergeant Tolsher also refers to another decision of Dr Forbes in the former Misconduct Tribunal of Melling v O'Reily [14]
- [44]In that case the relevant officer had provided a false report to a superior officer. The Tribunal commented:
If a reasonable member of the community were asked ‘Is it misconduct for a police officer to make an incorrect report to his superiors?’ I think he or she would reply, ‘It depends. Not unless he does so deliberately or in a very careless way.’ There is no ‘strict liability’ provision in the relevant legislation, and it would be quite extraordinary if there were.
- [45]Sergeant Tolsher adopts this hypothesis in his submissions and says that a reasonable member of the community would not regard his driving against the restrictions in these circumstances as misconduct.
- [46]He says when one has regard to the fact that he drove the vehicle in what he perceived to be circumstances that required urgent attention, where the arrest of multiple serious offenders resulted, and where there is no suggestion he drove the vehicle to avoid the interlock test, a reasonable member of the community would not consider the conduct such to warrant the stigma of misconduct.
- [47]The Respondent, whilst accepting that Sergeant Tolsher was acting with a sense of urgency, found that it did not override the fact that he knowingly breached the law. He considered that driving the vehicle without submitting to the interlock test could be seen as conflicting with road safety efforts such as to undermine confidence in the Queensland Police Service. He found it reached the level of conduct required to be considered misconduct.
- [48]Each case must be considered on its own facts when classifying the conduct as the conduct as misconduct or a breach of discipline.
- [49]While I accept I should and do have regard to the reasoning of the Respondent[15] as a fresh hearing on the merits I am required to come to my own view as to the correct and preferable decision.
- [50]I accept that in this case it was Sergeant Tolsher’s ‘commitment and enthusiasm’ to do the job of policing that caused him to engage in the conduct concerned. Whilst it is no doubt unacceptable and such would amount to a breach of discipline, I find that in the particular circumstances of this case, the conduct does not ‘put it over the line’ so far as the reasonable expectations of the public are concerned.
- [51]I am not satisfied that it is the correct and preferable decision is to categorise the conduct as misconduct.
- [52]I note that Sergeant Tolsher does not seek to review the sanction. The decision of the Respondent to classify the conduct as misconduct is set aside and the matter returned to the decision maker for consideration.
Footnotes
[1] Affidavit of Calvin Robert Gnech 25 November 2014 Exhibit CRG1 (document 4).
[2] For example CMC v Chapman & Anor [2011] QCAT 229.
[3] Affidavit Calvin Robert Gnech 25 November 2014 para 11.
[4] Respondents submissions 18 December 2014, para 15.
[5] Respondents submissions 18 Dec 2014, para 28.
[6] See Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320.
[7] At [72].
[8] QCAT Act s 22.
[9] Documents 2 -4, Exhibit CRG1.
[10] Affidavit of Calvin Robert Gnech 25 November 2014, Exhibit CRG 1 (document 4 bottom p 3).
[11] Submissions 4 August 15 para 8.
[12] Misconduct Tribunal 24 February 1997.
[13] Misconduct Tribunal 17 September 1999.
[14] Misconduct Tribunal [1991] 6.
[15]Aldrich v Ross [2001] QLR 235 at [257] ; Chapman v CMC & Rynders [2012] QCATA 16.