Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2016
  4. Newman v Assistant Commissioner Condon (No 2) - [2016] QCAT 448

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Newman v Assistant Commissioner Condon (No 2)[2016] QCAT 448

Newman v Assistant Commissioner Condon (No 2)[2016] QCAT 448

CITATION:

Newman v Assistant Commissioner Condon (No 2) [2016] QCAT 448

PARTIES:

Mr Nikolas Newman

(Applicant)

v

Assistant Commissioner Mike Condon

(Respondent)

APPLICATION NUMBER:

OCR040-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

13 November 2015

27 July 2016

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

18 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Assistant Commissioner made on 16 March 2015 is set aside, and the following decision is substituted:-
  1. A disciplinary finding of breach of discipline is substantiated as to Matter 1(a) as to the Burton and O'Brien allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
  1. A disciplinary finding is not substantiated as to Matter 1(a) as to the Burke and Tibbett allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
  1. A disciplinary finding of misconduct is substantiated as to Matter 1(b) that Mr Newman drove a motor vehicle at excessive speed when it was not authorised or justified.
  1. A disciplinary finding of misconduct is substantiated as to Matter 1(c) that Mr Newman submitted an official report knowing it contained information that was false or misleading.
  1. A disciplinary finding is not substantiated as to matter 1(d).
  1. A disciplinary finding of misconduct is substantiated as to matter 1(e) that Mr Newman was unprofessional toward members of the public and inappropriately grabbed hold of a member of the public without authorisation, justification or excuse.
  1. A disciplinary finding of misconduct is substantiated in relation to Matter 1(f) that Mr Newman knowingly provided false information to a senior officer conducting a disciplinary investigation.
  1. A disciplinary order is made, pursuant to Section 10(e) of the Police Service (Discipline) Regulations 1990 (Qld), that:
  1. (1)
    Mr Nikolas Newman is reduced in rank from Senior Sergeant level 4.2 to Senior Constable level 2.9 from 6 March 2015 until 6 March 2016.
  1. (2)
    Mr Nikolas Newman is to progress from Senior Constable level 2.9 to Sergeant level 3.6 from 6 March 2016.

CATCHWORDS:

POLICE DISCIPLINARY – where a police officer sought review of disciplinary findings – whether allegations as failing to treat members with respect and dignity were substantiated - whether an allegation  as to providing false information to a senior office conducting a disciplinary investigation was substantiated – whether the Tribunal was reasonably satisfied as to substantiation- where factors as to sanction were discussed

Police Service Administration Act 1990 (Qld), s 1.4

Police Service (Discipline) Regulations 1990 (Qld), s 9(1)(f), s 10(e)

Crime and Corruption Act 2001 (Qld), S 219H

2012/33 Standard of Practice for the Queensland Police Service – Professional Conduct

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

Briginshaw v Briginshaw (1938) 60 CLR 336

McIntosh v Webster & Anor [1980] 30 ACTR 19

Orme v Atkinson Misconduct Tribunal, 17 September 1999

Shauer v Banham CJC Appeal No.11 of 1996

Tolsher v Assistant Commissioner Hollands [2015] QCAT 391

CMC v Swindells & Gardiner [2010] QCAT 490

APPEARANCES:

 

APPLICANT:

Mr S Zillman of Counsel, instructed by Gilshenan and Luton

RESPONDENT:

Mr J Merrell of Counsel, instructed by the Queensland Police Services Solicitor

REASONS FOR DECISION:

Procedural

  1. [1]
    This matter concerns disciplinary grounds against a police officer. There are numerous grounds. Some of those grounds were admitted as to substantiation, whilst others were contested.
  2. [2]
    In the course of these proceedings, I made a decision with written reasons on 19 January 2016 as to substantiation of four of the disciplinary grounds. An appeal was filed in relation to that decision, and an Order was made by consent on 15 July 2016 returning the application to me for reconsideration of one of those matters - Matter One (f).
  3. [3]
    I heard the parties further on 27 July 2016. This is my reconsidered opinion as to substantiation of Matter One (f); and my decision as to sanction on those matters which were accepted as misconduct, and on those which I have found to be substantiated as misconduct.
  4. [4]
    For convenience, I will reproduce sections of my earlier reasons as appropriate, so that these reasons can be read without needing to refer to the earlier reasons.

History

  1. [5]
    Assistant Commissioner Mike Condon, Assistant Commissioner of Police, Central Region, Queensland Police Service, made a disciplinary decision in the form of a Notice of Formal Finding of Misconduct, on 6 March 2015 as to a serving officer, Senior Constable Nikolas Newman, who was attached to the Mackay Police Station at the relevant times.
  2. [6]
    Mr Newman filed an application to review the decision in the Tribunal on 20 March 2015. The application was heard on 13 November 2015, and 27 July 2016.
  3. [7]
    The decision found substantiation as to Matters 1(a), 1(b), 1(c), 1(e) and 1(f). Those matters were as follows:

Matter One

That between the 25th day of February 2010 and the 28th day of December 2013 at Mackay and Gladstone your conduct as a senior officer was improper in that you:

  1. (a)
    As a shift supervisor failed to treat members with respect and dignity;
  2. (b)
    Drove a police vehicle at excessive speed when it was not authorised or justified
  3. (c)
    Submitted an official report knowing it contained information that was false or misleading
  4. (d)
    (not substantiated)
  5. (e)
    Were unprofessional toward members of the public and inappropriately grabbed hold of a member of the public without authorisation, justification or excuse
  6. (f)
    Knowingly provided false information to a senior officer conducting a disciplinary investigation
  1. [8]
    At the outset of the hearing on 13 November 2015, I was advised by Counsel for Mr Newman that Matters 1(b), 1(c) and 1(e) were accepted to proceed to sanction; and that items 1(a) and 1(f) were challenged as to substantiation.
  2. [9]
    After discussion with Counsel, it was agreed that I would hear submissions as to Matters 1(a) and 1(f) and make a decision as to substantiation as to those two Matters; and that then on a continuation of the hearing on a further day, I would deal with sanction as to the three matters that are accepted for substantiation, together with any of the disputed Matters that I find substantiated.

Considerations

  1. [10]
    A review is a fresh hearing on the merits to produce the correct and preferable decision.[1] In a proceeding of this type, the review decision is made on the evidence that was before the decision-maker.[2]
  2. [11]
    The Matters were brought pursuant to Section 1.4 of the Police Service Administration Act 1990 (Qld) (‘PSSA’) and section 9(1)(f) of the Police Service (Discipline) Regulations 1990 (Qld).
  3. [12]
    Section 7.4 of the PSAA provides:

(2) 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.

  1. [13]
    Breach of discipline is defined in section 1.4 PSAA as:

breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct.

  1. [14]
    Misconduct is defined in Section 1.4 PSAA as:

misconduct means conduct that—

(a) is disgraceful, improper or unbecoming 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.

  1. [15]
    Officers are given directions by the Commissioner to comply with the terms of the 2012/33 Standard of Practice for the Queensland Police Service – Professional Conduct. Clause 12 provides:

In the course of their duties, and in particular when exercising discretionary powers, members are to:

  1. (a)
    treat all persons with respect and dignity and in a reasonable, equitable and fair manner
  2. (b)
    not intimidate, engage in sexual or other forms of harassment, unlawfully discriminate or otherwise abuse any person

Matter 1(a)

  1. [16]
    In my decision of 19 January 2016 I found that disciplinary proceedings were substantiated as to the Burton and O'Brien allegations; but were not substantiated as to the Burke and Tibbett allegations.
  2. [17]
    Further and better particulars of the matters in 1(a) which were found in the decision amounted to  misconduct were as follows:
    1. (a)
      On 29 June 2010 you attended the Mackay Police Station, Senior Sergeants office area where you stood over the station roster clerk, former AO2 Ms Cecilia Burton and spoke to her in a loud, abusive, humiliating and intimidating manner (the ‘Burton Allegation’).
    2. (b)
      On 10 September 2011 at Bakers Creek you spoke with Civilian Radio Operator Maree Burke on the telephone in relation to a radio request whereby you raised your voice and spoke over the top of Ms Burke in an aggressive manner (the ‘Burke Allegation’).
    3. (c)
      On 16 November 2012 you spoke to Acting Sergeant Camellia Tibbett in an abrupt and rude manner whilst she was performing duty to the Mackay District Communication Coordinator (the ‘Tibbett Allegation’).
    4. (d)
      On 26 October 2012 at the Mackay Police Station inquiries office you humiliated Acting Sergeant Megan O'Brien when you spoke to her in an aggressive and condescending tone regarding a roster issue in front of a First Year Constable (the O'Brien Allegation).
  1. [18]
    I considered each of the Matters in turn. The Burton and Burke allegations had similarities, as they related to workplace conversations, so I discussed those first; the O'Brien and Tibbett allegations had similarities as they dealt with conversations in the pursuit of duty, so I then discussed those.

The Burton Allegation

  1. [19]
    Cecilia Burton was an employee of the Queensland Police Service. The allegation relates to an incident that occurred on Tuesday 29 June 2010 at 8 am at the Mackay police station.
  2. [20]
    A record of interview was conducted with Ms Burton by Detective Massingham of the Ethical Standards Command on 13 July 2015. A transcript of the interview forms part of the evidence considered by the decision maker.[3]
  3. [21]
    Ms Burton said that she had nothing to do with Mr Newman before she was at the rosters section. She said she had seen him around, but never had to deal with him, and she just had one dealing she described as ‘that big one’.[4]
  4. [22]
    She said that she was in the open office area, that Karen Steindl, another administrative officer was at a different desk, and Dave Parnell was in his office. She said that Mr Newman came into the office and then described what occurred as follows:[5]

Burton: And he said to me um, oh can I – you know I want to have a look at the – he says I want – I want a copy of the current roster.

Massingham: Mhmm

Burton: And I said um, I said there’s one downstairs because we keep one downstairs and (ui) he said no, no the one up here and I said why? I said is there, you now, something wrong, did I do something wrong? And he goes um, yes, I need to see it and I said come, all right, I said I’ve only just come in, come and sit down and we’ll have a chat, we’ll look at it together and then you know, you can point out what I’ve done wrong, whatever.

Massingham: Mhmm

Burton: And then he started um started going off, you know, that um, that I – I had put on the roster requested days off and I’ll give you the dates – the 7th and the 8th of July.

Massingham: Mhmm

Burton: That I had written requested days off.

Massingham: Yes

Burton: And that he had no idea, he didn’t ask for those requested days off and blah, blah and then he, he just went off

Massingham: Yep

Burton: You know he was just ranting and yelling like a, like, like a maniac

Massingham: Ok

Burton: And I just sat there because I thought well what do I do? I’ll just let him rant.

Massingham: Yes

Burton: Um and I was sitting down because he did not sit down with me, so I sat down and he was just towering over me, on top of me, yelling at me, you know?

Massingham: Yes

Burton: That you know all the juniors in his ah team are you know are questioning him, why he has requested days off and blah, blah, and what do you think this looks like and you and all that sort of stuff and I was like, oh God I don’t even know where you’re coming from (laughs)

Massingham: Yes, ah yes

Burton: Anyway, so he, he was just, he was just so, you know he was just angry, really, really, really, extremely angry and really pissed off

  1. [23]
    Ms Burton described the experience as ‘just scary’. She didn’t think that Mr Newman actually swore at her but that he was ‘out of his head’ and was yelling. She described what happened next as:[6]

Burton: And I thought whatever and then, then he says, he goes, you know that I’m not a popular man around here, you should take extra care when you’re doing the rosters, whatever.

Massingham: OK

Burton: And that’s when I started, and then all of a sudden he just walks off

Massingham: Right

Burton: After he has his little rant, he turns around and takes off

  1. [24]
    Ms Burton said that Mr Parnell then came out of his office, she assumed to intervene, but that it was too late because Mr Newman had already gone.
  2. [25]
    Senior Sergeant Parnell was interviewed on 20 July 2013 about the incident by Mr Massingham. He said that he heard a raised voice but that by the time he got up and came out of his office that Mr Newman was leaving the room. He described the incident:[7]

DP: It was a fairly short conversation period if you know what I mean

AM: Okay can you recall anything that was said

DP: No, I can’t I just remember, there was no swearing, there was no abuse as such, but as with Nick it’s probably his tone and his manner of how he gores about the business that causes, can cause issues

AM: Ok

DP: Or can cause people to believe that he is being more aggressive, or he’s being you know, intimidating towards them

AM: Okay

DP: And I, after that incident, Cecilia appeared upset so I got her into the office and talked to her about it and asked her you know if she’s okay etc and did she, did she want me to do anything about it and she said at that time no and that, and I said well, look I’m going to talk to Nick anyway about it so and I can’t recall if I, I’ve got notes I took in my diary at the time, and I’d have to have a read, I can’t recall off hand whether I spoke to him that day or the next day or later on but I did remember talking to him and then I referred the matter further and up the chain to the Inspector.

AM: Yeah okay. So that was at your instigation to the Inspector that it went up the chain

DP: Yes it was

AM: Okay thank you

DP: Just more of a heads up that we had an issue and just letting you know that I’ve basically as far as I was concerned I’ve dealt with it, I’ve spoken to Cecilia about it she was, she was I’d say she was fairly upset about it like towards the end

AM: Mmmm

DP: But um, from what I heard I suppose everyone has a different perception or a different ability or how they perceive someone talking to them and I didn’t think it was that excessive. (UI) he raised his voice but then again I’m used to it I suppose working with you know grubs on the street and that, people always raising their voices and talking in a particular way whereas she might not have been subject to that too much because of her exposure during the workplace so that’s why I spoke to her about it and said look I can talk to him and try and resolve it but if you’re not happy with that sort of solution, she was happy at that stage to have me take the matter on board and speak to Nick about it which I did and I’d have to check to see whether I did but I’m pretty sure I came back to her after I spoke to Cecilia, sorry after I spoke to Nick I came back to Cecilia and let her know the outcomes.

  1. [26]
    Ms Steindl was interviewed by Mr Massingham on 30 July 2013. She recalled:[8]

DI Massingham: Can you tell me what you can recall from that day, and I appreciate it’s 3 years ago

Steindl: Um by the time I realised what was going on, he was, if I remember correct, I don’t know what it, I can’t remember what it was about, I think he finished at 6am because I remember thinking that he had stayed back for a couple of hours to come up and have a go at Sissie. I can’t remember what it was about, but she was sitting there and he was right there, and right going right off whatever, I can’t remember what it was about but he was going right off and she never got a chance to say too much or respond and then after he left I had said to Cecilia that she should have stood up so that she was more face to face so that he wasn’t over her.

DI Massingham: Yep okay. How would you describe his demeanour on this occasion?

Steindl: Rude and arrogant

DI Massingham: Hmm hmm

Steindl: Dominating

  1. [27]
    Counsel for Mr Newman submits[9] that the Burton allegation should be substantiated as a breach of discipline only, not as misconduct.
  2. [28]
    He refers to the comments of Presiding Member Forbes in Shauer v Banham:[10]

Regulation 9 of the Police Service (Discipline) Regulations recognises that breaches of discipline often fall short of ‘misconduct’; 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 generally ascending scale if comes just below the stigma of a “conviction..of an indictable offence’. The more serious the charge the more careful the tribunal must be before it finds itself satisfied that the person charged is guilty.

The legislature cannot have intended any and every breach of discipline to be classifiable as ‘disgraceful’ or ‘showing unfitness to be an officer’ or even below ‘the standard of conduct (which) the community reasonably expects of  a police officer.

  1. [29]
    And:[11]

Reasonable members of the community do not regard police officers as professionally unfit or sub-standard just because they fail 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 implying the stigma of ‘misconduct’ which is a perjorative charge to be used with due discrimination.

  1. [30]
    He also refers to the comments of the Misconduct Tribunal in Orme v Atkinson[12] that for conduct to amount to misconduct rather than a breach of discipline:

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.

  1. [31]
    He submits that these principles were recently confirmed by the Tribunal in Tolsher v Assistant Commissioner Hollands.[13]
  2. [32]
    He submits that reasonable members of the public would not consider the conversations and/or conduct of Mr Newman was such as to be categorised as misconduct.
  3. [33]
    Counsel for the Assistant Commissioner submits[14] that based upon the evidence before the Assistant Commissioner that the Assistant Commissioner was correct to conclude that Mr Newman had engaged in misconduct because he contravened clause 12 of the Standard of Practice.
  4. [34]
    He submits that:

63. On the evidence, it was (Mr Newman) who started the talking to Ms Burton in a very aggressive and condescending tone. There was no need for (Mr Neman), as a Senior Sergeant, to engage in such behaviour regarding a roster issue. A member of the public would expect that a Senior Sergeant of the Service would not conduct him or herself towards a non-sworn staff member in the manner (Mr Newman) did.

64. The Standard of Practice does not require any of the conduct of (Mr Newman), as referred to above, to be present for conduct to be misconduct. The material consideration is whether (Mr Newman) failed to treat Ms Burton with respect and dignity.

65. On the evidence, (Mr Newman) failed to treat Ms Burton with respect and dignity as required by clause 12 (a) of the Standard of Practice. (Mr Newman) engaged in misconduct because he contravened clause 12 of the Standard of Practice.

  1. [35]
    It is clear that Mr Newman spoke to Ms Burton in an aggressive and forceful manner. She had just started work for the morning, and was taken by surprise by the intensity and purpose of the comments made by Mr Newman.
  2. [36]
    Ms Burton had not had previous dealings with Mr Newman, and did not have a working relationship with him.
  3. [37]
    Mr Newman had finished a night shift at 6am that morning. He had then apparently waited until Ms Burton started work at 8 am to talk to her about the roster. It seems that he had been allocated days off which he had not requested, and which showed in the roster, and that he felt that this was diminishing him in the eyes of his juniors who queried why he was taking days off.
  4. [38]
    The situation then emerges of Mr Newman who was presumably tired after a night shift, and was upset at what he saw as unrequested interference with his roster, waiting for two hours in a presumably agitated state to speak to Ms Burton. She was unaware of the issue and was taken aback, and was upset by the vehemence and nature of the inquisition of her by Mr Newman.
  5. [39]
    Mr Parnell clearly thought that the behaviour was deserving of questioning at the time, and he did speak with Ms Burton about it and take note of the incident and report it. He did not see Mr Newman’s behaviour as being ‘that excessive’ and considered that the matter had been adequately dealt with having regard to the nature of it.
  6. [40]
    Ms Steindl described Mr Newman’s behaviour as rude and arrogant, and dominating.
  7. [41]
    Mr Newman clearly spoke to Ms Burton in an inappropriate and vehement manner which understandably surprised and upset her. He felt that his personal reputation had been slighted, was tired after a shift, and forcefully interrogated Ms Burton as to what had occurred. The conduct of Mr Newman was ill-considered and not appropriately restrained.
  8. [42]
    Whilst Mr Newman’s conduct as to Ms Burton was inappropriate, the event was a short exchange without any offensive language, or any physical contact, and of limited scope.
  9. [43]
    Members of the public would reasonably see Mr Newman’s actions towards Ms Burton as being improper in the workplace of the Police Station, or in any workplace. I accept that Mr Newman failed to treat Ms Burton with an appropriate level of courtesy and restraint, and with a degree of lack of due respect and dignity.
  10. [44]
    By treating Ms Burton with a degree of lack of respect and dignity, Mr Newman has breached Clause 12(a) of the Standard of Practice.
  11. [45]
    Breaching the provisions of Clause 12(a) of the Standard of Practice does not necessarily constitute misconduct. Not every breach of the Standard of Practice will necessarily translate into misconduct. There must be a consideration of the severity of the treatment and the circumstances in each case.
  12. [46]
    A breach of discipline arises where there is a breach of a direction of the commissioner, which is not misconduct. The Standard of Practice is a direction of the Commissioner.
  13. [47]
    The treatment of Ms Burton by Mr Newman was not severe or ongoing, and was limited in nature. Whilst the treatment involved a degree of lack of respect and dignity, it was to a limited degree.
  14. [48]
    I am not satisfied that the actions of Mr Newman in treating Ms Burton with a degree of lack of respect and dignity, ‘cross the line’ in terms of his behaviour as a Police Officer, and do not lead to them being seen as ‘disgraceful’ or ‘showing unfitness to be an officer’, or even below ‘the standard of conduct (which) the community reasonably expects of  a police officer’, as referred to in the comments in Shauer v Banham, so as to constitute misconduct.
  15. [49]
    As the breach of the Standard of Practice in this instance is not misconduct, it constitutes a breach of discipline.
  16. [50]
    I am therefore satisfied that this allegation is substantiated as a breach of discipline.

The O'Brien allegation

  1. [51]
    Ms Megan O'Brien was a Sergeant attached to the Mackay Police station. The allegation relates to an incident that occurred on Friday 26 October 2012 at 8 am at the Mackay police station.
  2. [52]
    A record of a conversation between Ms O'Brien and Acting Inspector O'Connell was recorded on 30 October 2012. A transcript of the conversation forms part of the evidence considered by the decision maker.[15]
  3. [53]
    Ms O'Brien said that she had been having a discussion with Constable Andre Stevens in the inquiries office which is open to the general duties area when Mr Newman interjected:[16]

Then behind Andre is the filing cabinets that lead to the trays that go out to the general duties area and then out of nowhere, Senior Sergeant Newman was standing at the filing cabinet and he had his hand on his hip and he had his hand on the filing cabinet. Then in a really stern, abrupt voice, like I didn’t even know he was there, he turned around and he said, well that would be incorrect Megan, like, I didn’t even see him or anything. So I turned around and I went, I beg your pardon?

  1. [54]
    She said that Mr Newman then made comments about the roster, and what then ensued was:[17]

So then what happened was, he then said to me, something about – I can’t remember if he said that then he had to deal with it or something because I said that. Like at no time, no time whatsoever, did I tell Andre who was in charge of that afternoon shift and no matter how hard I tried, he would not let me explain myself. So then I thought, well guess what, just a waste of time me even trying to speak to you, because he never wants to listen to what you have to say. So then what I thought was, guess what, I’m not working and I don’t need to be spoken to like a two year old.

So I turned back around to the computer and then he goes, Megan, he goes, I don’t like to air it in public, but you’re obviously – I can’t remember if he said my behaviour or my attitude was intimidating Andre, was making Andre upset. Like I didn’t raise my voice, I didn’t over – like I didn’t talk over the top of him, I didn’t do anything and then I looked at Andre and then I just thought to myself, I can’t believe I’m being exposed to this behaviour. Like there is no way, like first of all, he was even invited in the conversation and second of all, it had absolutely nothing to do with him.

So then I turned back to the computer and then he goes, Megan. I thought I’m not going to say anything, because I didn’t want to get into trouble because like, just makes me so angry because he’s so overpowering, like he just – it’s his way or nobody’s way, it’s as simple as that. So then what I did was, I didn’t turn around. So then he called my name louder and I still didn’t turn around, so then he just screamed my name out and obviously I turned around because like I didn’t know where it was going to go from there. So then I turned around and I can’t remember if I said, what, first but then I went, look I’m sorry I didn’t look at the roster and as soon as I said that, he just stopped. It was like he was just going to keep on pushing me until I apologised for not doing what he thought I should have done.

  1. [55]
    Constable Andre Stevens was interviewed by Detective Sergeant Mann about the incident on 30 July 2013. He recalled as to Mr Newman’s behaviour:[18]

CAS: ..Um, I can’t recall his direct action, what he said explicitly but (UI) took note that it was up to him to delegate who was going to be shift supervisor for that day

AM: Right

CAS: So he did it in a direct manner but it wasn’t overly confrontational

AM: Okay

CAS: And then I wouldn’t call it an argument but I see it as a firm almost a standoff between Senior Sergeant Newman and Senior Constable O'Brien

AM: Yep

CAS: Um I was pretty much caught in the middle of, um, I can’t remember exact wording or so forth but just in overall tone I guess was, I wouldn’t say aggressive that’s probably the wrong word for it, it was very direct on senior’s part

  1. [56]
    Constable Stevens said that there were raised voices by both parties, not overly raised, but they could be heard in the rest of the day room.[19] He was asked what brought the confrontation about, and replied:[20]

CAS: I guess it’s a combination of, that’s communication, um I’m not sure how much of the conversation SS Newman heard ah and then obviously I put it down to obviously that it was directness and maybe he overjumped the gun on that particular occasion in term of being very direct, very quickly without gathering the entire context of the conversation.

  1. [57]
    Counsel for Mr Newman submits that similar considerations apply as to the Burton allegations and that this allegation should be substantiated as a breach of discipline only.
  2. [58]
    He submits that[21] ‘like anyone, police officers can properly expect to have a “bad day”, or involve themselves in some poor communication with other staff, without being tarnished with the stigma of a misconduct charge’ and that reasonable members of the public would not consider the conversations and/or conduct of Mr Newman was such as to be categorised as misconduct.
  3. [59]
    Counsel for the Assistant Commissioner submits that the material consideration is whether Mr Newman failed to treat Acting Sergeant O'Brien with respect and dignity.[22] He submits:

102. On the evidence, it was (Mr Newman) who started talking to Acting Sergeant O'Brien in a very aggressive and condescending tone. There was no need for (Mr Newman), as a Senior Sergeant, to engage in such behaviour towards another officer regarding a roster issue. A member of the public would expect that a Senior Sergeant of the Service would not conduct him or herself towards another officer in the manner (Mr Newman) did.

  1. [60]
    There was clearly a robust conversation between Mr Newman and Ms O'Brien at the time, which can be properly described as a confrontation.
  2. [61]
    Constable Stevens saw it as almost a standoff between the two parties.
  3. [62]
    Ms O'Brien took offence at the manner in which Mr Newman addressed her, and felt that she was being spoken to as if she were a ‘two year old’.
  4. [63]
    I am satisfied that the manner in which Mr Newman addressed and spoke to Ms O'Brien about the rostering issue was not properly restrained, and did not reflect a proper attitude by him to a discussion on a service related matter between two professional officers.
  5. [64]
    The incident was in the nature of a heated exchange between two professional officers, each of whom was standing their ground, and standing up to the other person whose conduct they saw as inappropriate, but in the course of the exchange, Mr Newman treated Ms O'Brien with a degree of lack of respect and dignity.
  6. [65]
    By treating Ms O'Brien with a degree of lack of respect and dignity, Mr Newman has breached Clause 12(a) of the Standard of Practice.
  7. [66]
    Breaching the provisions of Clause 12(a) of the Standard of Practice does not necessarily constitute misconduct. Not every breach of the Standard of Practice will necessarily translate into misconduct. There must be a consideration of the severity of the treatment and the circumstances in each case.
  8. [67]
    A breach of discipline arises where there is a breach of a direction of the commissioner, which is not misconduct. The Standard of Practice is a direction of the Commissioner.
  9. [68]
    The treatment of Ms O'Brien by Mr Newman was in the context of their confrontation as to rostering issues, and was limited in its scope and consequences. Whilst the treatment involved a degree of lack of respect and dignity, it was to a limited degree.
  10. [69]
    I am not satisfied that the actions of Mr Newman in treating Ms O'Brien with a degree of lack of respect and dignity, ‘cross the line’ in terms of his behaviour as a Police Officer, and do not lead to them being seen as ‘disgraceful’ or ‘showing unfitness to be an officer’, or even below ‘the standard of conduct (which) the community reasonably expects of  a police officer’, as referred to in the comments in Shauer v Banham, so as to constitute misconduct.
  11. [70]
    As the breach of the Standard of Practice in this instance is not misconduct, it constitutes a breach of discipline.
  12. [71]
    I am therefore satisfied that this allegation is substantiated as a breach of discipline.

The Burke allegation

  1. [72]
    Ms Marie Burke worked for the Queensland Police Service as a  Communications Operator attached to the Mackay Police Station. The allegation relates to an incident that occurred on 10 September 2011.
  2. [73]
    Mr Newman had attended a scene involving a suspected spinal injury to a child at a sporting event. Ms Burke informed Mr Newman that the Queensland Ambulance Service were on the way, but that they could not give an estimated time of arrival as they were quite busy. Mr Newman asked Ms Burke to call the ambulance service again and ask them if they could make it a priority as the young man was in some pain and it was quite serious, and it was possibly a severe spinal injury. Ms Burke advised that the ambulance service stated that they were having discussions with a trainer or a person at the scene and they were quite happy with what was occurring[23]. Mr Newman then asked Ms Burke to call him on the telephone.
  3. [74]
    The allegation arises in relation to the subsequent phone call. The Assistant Commissioner found that Mr Newman raised his voice and spoke over the top of Ms Burke in an aggressive manner.
  4. [75]
    The conversation was recorded. The conversation was relatively short, and it is convenient to set the transcript out in full:[24]

Newman: Who was speaking on the radio before

Burke: Me

Newman: Didn’t appreciate the comments anyway

Newman: Anyway the person is here holding the young fellas head and was talking to the ambos saying it was serious spinal so I don’t know what they are telling you guys but that’s the reason I ask for immediate assistance

Burke: yeah

Newman: Are they coming lights and sirens now?

Burke: I have told them and they did say…

Newman: yeah OK I’m just saying I didn’t appreciate the comment on the radio before, that goes all out over the…

Burke: Alright Nick if you have a problem with me you take it.. fine you take it up with her…

Newman: I want Comco put her on please

Burke: No, hang on the DDO would like to speak to you

Newman: Thank you

Sweetnam: Nick

Newman: Whose that

Sweetnam: Mark Sweetnam

Newman: Senior Nik Newman here – I’m just expressing my dislike at the way I was spoken to over a District Wide radio communication by a CRO, so if there’s an issue I want to take it up with the Comco

Sweetnam: If you’ve got an issue with the staff in here you take it up with their OIC mate…I was standing here listening and she was not rude to you at all

Newman: Oh for god’s sakes it is anti Nick Newman year is it??? Is that what we’re talking about

Sweetnam: No mate don’t be so paranoid

Newman:..co-ordinate here.. if you want to speak to me speak to me later

  1. [76]
    A record of interview was conducted between Ms Burke and Detective Inspector Massingham on 31 July 2013. A transcript of the conversation forms part of the evidence considered by the decision maker.[25]
  2. [77]
    Ms Burke said that Mr Newman’s tone was aggressive, and that she raised her voice:

MB: There may have been some conversation prior to that on the radio

AM: Okay, on the radio, okay. How was his tone when he spoke to you

MB: Aggressive

AM: Okay. Raised voice at all

MB: I know mine was

AM: Mmmm when he made the allegation

MB: Yes

  1. [78]
    Counsel for Mr Newman submits that the approach from Connor J in McIntosh v Webster & Anor[26] is appropriate in this matter, and that it would be unfair to make minute retrospective criticisms of Mr Newman’s conduct in the circumstances.[27] He submits that no disciplinary action should be taken against Mr Newman for this matter, or that in the alternative, the matter should have been substantiated as a breach of discipline only.
  2. [79]
    Connor J commented that:[28]

I do not think it would be appropriate for a court to approach an issue such as this .. without taking into consideration the circumstances in which the constable in question made the arrest. Arrests are frequently made in circumstances of excitement, turmoil and panic. I think it would be altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticism of what an arresting constable might or might not have done or believed in the circumstances. For myself I am disposed to take a broad and somewhat sympathetic attitude towards members of the police force who are called upon in critical situations to preserve public order.

  1. [80]
    Counsel for the Assistant Commissioner submits[29] that the comments of Connor J should not apply, as this allegation does not concern a critical situation to preserve public order.
  2. [81]
    He submits that the relevant consideration is whether Mr Newman failed to treat Ms Burke with respect and dignity when she was passing on relevant information from the ambulance service, and contravened Clause 12 of the Standard of Practice.
  3. [82]
    This incident occurred in the context of Mr Newman being on duty at the scene of a distressing injury. He was clearly anxious for the well-being of the boy. The nature of the injury, being a suspected serious spinal injury, is relevant, as the consequences may have been devastating for the future of the boy, and any movement before the ambulance service arrived may have been very detrimental. The scene itself would have been testing, being a public sporting match with presumably large numbers of the boy’s team members, friends and family all concerned about his immediate welfare, and wanting a speedy response and immediate attention.
  4. [83]
    Mr Newman would have been in a situation of significant stress. Whilst it may not have been of the level of a ‘critical situation’ in that the situation was under control, and the boy was stable and medical advice was being obtained, it was still a situation of considerable intensity. Mr Newman had to manage not only the situation of the boy, but also to control the crowd and keep the situation under control for the arrival of the ambulance service.
  5. [84]
    It is noteworthy that one of the relevant comments which appears to form the substantial basis of the allegation, that Mr Newman said ‘Oh for god’s sakes it is anti Nick Newman year is it??? Is that what we’re talking about’, was not in fact said to Ms Burke, but was said to Mr Sweetnam with Ms Burke apparently listening in.
  6. [85]
    I note that Mr Newman was anxious to terminate the conversation with Mr Sweetnam, saying ‘..co-ordinate here..if you want to speak to me speak to me later’ which indicates that he was under stress and performing his immediate duty as officer on the scene.
  7. [86]
    I also note that Ms Burke took issue with Mr Newman and also raised her voice. She was perhaps affronted, but was in the comparative calm of the communications office, as compared to Mr Newman who was in the midst of a difficult and trying scene.
  8. [87]
    I can see a valid comparison with the comments of Connor J in this situation, that ‘minute retrospective criticism’ of the conduct of Mr Newman should not be made.
  9. [88]
    I am not satisfied that Mr Newman failed to treat Ms Burke with respect and dignity. This was an exchange that occurred in the heat of a difficult situation, and the level of intensity was contributed to by Ms Burke who also raised her voice. Mr Newman was perhaps short with Ms Burke, but he was interacting with her in the course of a difficult situation in pursuit of his duty.
  10. [89]
    I am not satisfied that a breach of discipline or misconduct is substantiated in this matter.

The Tibbett allegation

  1. [90]
    Senior Constable Camilla Tibbett was attached to the Mackay Police Station as a Communications Co-ordinator. The allegation relates to conversations that occurred on 16 November 2012.
  2. [91]
    Mr Newman had a series of three short conversations about the pursuit of a suspect. The conversations were recorded.
  3. [92]
    In the first conversation, Ms Tibbett tried to give some information about the suspect to Mr Newman:

CT: I’ll try to tell the DDO. (Phone dialling). No just about the health concerns. I’m going to try.

NN: (UI)

CT: Hello

NN: Yeah hello

CT: Ah hi it’s Camilla in Comms I realise

NN: I can’t talk right now

CT: I know I wanted to give you some important information (phone) Fuck!

  1. [93]
    It seems that the first conversation was abruptly terminated, and that Mr Newman then rang the Communications branch back.
  2. [94]
    In the second conversation Mr Newman spoke to an unidentified female:

NN: Yeah Comco tried to ring me in the middle of all that, I wasn’t able to take the call, can you get her to call me back if its urgent, thanks

  1. [95]
    In the third conversation Ms Tibbetts conveyed the information she was trying to give in the first conversation:

CT: Something communication lines

NN: (ui)

CT: Hello its (ui) again. I was um, I was trying to give you some important information at the time before that’s all, the Detective Sergeant (ui) was in the office here and we were talking about when Kepa was last in custody when he was under the influence and he almost died and we had to get the QAS in and so we were just concerned and we were trying to find out if anyone knew if he’d been chroming and obviously to let you know also that’s all just the health concerns

NN: Yeah I’m fully aware of all of his um previous medical issues and that sort of thing, I’ve dealt with him a few times

CT: Yep no that’s alright, I just wanted to make sure that’s all

NN: Thanks

CT: Okay then alright, bye bye

  1. [96]
    A record of interview was conducted between Ms Tibbett and Acting Detective Inspector Winter on 30 April 2013. A transcript of the conversation forms part of the evidence considered by the decision maker.[30]
  2. [97]
    Ms Tibbett said that she was frustrated by the actions of Mr Newman in terminating the initial telephone call:[31]

In general it feels as though I could go with this information or with that information and no matter what he’s not going to be happy with what I come to him with and it makes it very very difficult but of a more specific nature I’ll have an incident that I need to speak to him about and I’ll call him up ‘Senior I need to tell you about this job’.

‘Can’t talk’

Click! And he just hangs up on me and that is so frustrating, sometimes it’s really important information like he had one guy, him and a bunch of the general staff that he was cordoning off in the middle of town this juvenile who was in custody and he was high on paint and um we ended up getting an ambulance in he was very very close to dying this kid so I’m trying to call him to go ‘Senior just letting you know this child almost died in our custody’ and he would hang up on me so it wasn’t, he wasn’t in the middle of anything urgent, he wouldn’t even speak to me and that’s very frustrating there should be someone that you know that you need to talk that information to.

  1. [98]
    The Assistant Commissioner found that Mr Newman had displayed poor judgment by failing to ask the Communications Coordinator about the urgency of the call, and as result disregarded potentially vital information, and was rude and abrupt towards Ms Tibbett and terminated the call prior to finding out if the matter was urgent.
  2. [99]
    Counsel for Mr Newman submits that[32]:

It is alleged, that (Mr Newman’s) conduct amounts to misconduct in that he was ‘rude and abrupt’ to A/Sergeant Tibbett. The only words uttered by (Mr Newman) to Tibbett were ‘I can’t talk right now’ and those words were uttered in an even tone.

  1. [100]
    He refers to the comments of Connor J in McIntosh v Webster & Anor and submits that there should be some margin afforded to police, particularly those involved with offenders that are fleeing, that produce a ‘less than perfect’ response in a highly charged situation, and submits that:

Whilst (Mr Newman) could have, in retrospect, enquired if A/Sergeant Tibbett’s telephone call was urgent at the time, in our submission that certainly does not amount to a breach of discipline or misconduct by (Mr Newman).

  1. [101]
    He submits that no disciplinary action should be taken against Mr Newman for this matter, or that in the alternative, the matter should have been substantiated as a breach of discipline only.
  2. [102]
    Counsel for the Assistant Commissioner submits that whilst Mr Newman, with other officers, was trying to locate the juvenile, there is no evidence that Mr Newman was, at the time of Acting Sergeant Tibbett’s call to him, just about to apprehend or was in the process of apprehending the juvenile in question, such that Mr Newman would have been, at the time of that call, under extreme pressure.[33]
  3. [103]
    He submits that there was no reason for Mr Newman to hang up on Ms Tibbett in the circumstances that existed at the time, and that Mr Newman failed to treat Ms Tibbett with respect and dignity by being rude and abrupt towards her.
  4. [104]
    Mr Newman was engaged in an active pursuit at the time of the first telephone call. His exact activity at the time has not been identified, but he said that he could not talk right then – that has not been disproved. Mr Newman did ring Ms Tibbets back eight minutes later.
  5. [105]
    The comments of Connor J are directly applicable in this matter in that the actions of a police officer engaged in an active situation should be assessed cautiously.
  6. [106]
    The transcript does not disclose that Mr Newman was rude to Ms Tibbett. If he terminated the phone call, he did so abruptly and without any rancour – this may be suggestive of an urgent situation requiring his full attention, or may display a reckless demeanour.
  7. [107]
    However, the particular is that Mr Newman did not treat Ms Tibbett with dignity and respect, not that he performed his duty in a reckless way. The transcript of the relevant telephone call does not evidence that Mr Newman failed to treat Ms Tibbett with dignity or respect at all.
  8. [108]
    Having regard to the caution voiced by Connor J, and the lack of evidence showing that Mr Newman failed to treat Ms Tibbett with dignity and respect, I am not satisfied that a breach of discipline or misconduct is substantiated in this matter.

Matter 1(f)

  1. [109]
    I found in my decision of 19 January 2016 that a disciplinary finding was not substantiated in relation to this matter. The amended ground of appeal[34] was:

That the learned member erred in law in not considering all of the evidence, namely, the complete interviews of Mr and Mrs Roberts.

  1. [110]
    I had noted in my decision of 19 January 2016 that the statements of Mr and Mrs Roberts were not included in the bundle of statements put in evidence[35] by the Assistant Commissioner. I was advised by Counsel for Mr Newman on the further hearing that the omission was an oversight. Those statements have now been put into evidence by consent.
  2. [111]
    I will now reconsider this matter having regard to the complete interviews of Mr and Mrs Roberts, which are now before me.
  3. [112]
    Further and better particulars of Matter 1(f) were provided as follows:
    1. (a)
      On 1 May 2013 you were a Senior Sergeant, District Duty Officer at Mackay District.
    2. (b)
      Detective Inspector Andrew Massingham of the Ethical Standard command Internal Investigation Group had been allocated a disciplinary investigation relating to several matters, one involved your connection with the arrest of Kaleb King on 13 December 2010.
    3. (c)
      On 01 May 2013 at Mackay District Office you participated in a directed discipline interview with Detective Inspector Massingham about the matters under investigation. During the interview you stated:
      1. ‘I did personally. Knocked on the door a number of times.’
      2. ‘Ah place was in darkness and I later found out that the owner wasn’t there, had gone away on holidays.’
      3. ‘Knocked on the door loudly waiting for the Duty Sergeant to arrive to breath-test me, no-one came to the door, the place was in complete darkness, walked around the back there was nobody in that house.’
      4. ‘Um we knocked and knocked and knocked that night so that we could get a statement that was part of the reason why we wanted to speak to them, one to notify that the fence had been pushed over and two to get a statement.’
  4. [113]
    The investigation in question was being conducted by Detective Inspector Massingham of the Ethical Standard Internal Investigation Group in relation to Mr Newman’s conduct in connection with the arrest of Kaleb Kling on 13 December 2010.
  5. [114]
    A directed discipline interview was conducted between Mr Massingham and Mr Newman at the Mackay District Office on 1 May 2013. A transcript of the interview is in evidence.[36]
  6. [115]
    The allegation is that Mr Newman knowingly provided false evidence in the course of the interview. The particulars identify several alleged specific false statements by Mr Newman:
    1. (1)
      Mr Newman personally knocked on the door a number of times
    2. (2)
      The house was in complete darkness
    3. (3)
      Mr Newman walked around the house
    4. (4)
      There was nobody in that house
    5. (5)
      Mr Newman later found out that the owner was not there and had gone away on holidays
    6. (6)
      Mr Newman knocked loudly on the door and no-one came to the door
    7. (7)
      Someone else was with Mr Newman when ‘we’ knocked repeatedly on the door to notify the occupants that the fence had been pushed over and to get a statement
  7. [116]
    Mr Newman said in the interview that he was working with Constable O'Keefe on the evening of 13 December 2010 when they got a report that a male person was acting in an untoward way.[37] He said they spoke to the person and told him to move on, but not to ride his bicycle as it had no lighting on it and it was well after dark. He said the person pushed the bike a short distance away, directed a threat at them, and then jumped on his bike and rode off.
  8. [117]
    He said they then followed the person in the police car, and Constable O'Keefe gave the person a direction to stop, but the person kept going. In the course of the ensuing events, Mr Newman drove the police car up onto the footpath ahead of the person, then got out of the car and tackled the person and put him in handcuffs.
  9. [118]
    He said that the police car was resting against the fence, so he called the Duty Sergeant to come and see him. He said that the fence didn’t fall, but went to about a forty to forty-five degree angle.[38] He said the fence was not damaged, and that he and one of the other officers pushed it back up and it just slotted in the holes.
  10. [119]
    The relevant part of the interview is as follows:[39]

Massingham: Did you speak to the owner on the night?

Newman: Went to the door.

Massingham: Yeah.

Newman: I did personally. Knocked on the door a few times.

Massingham: yeah.

Newman: Ah place was in darkness and I later found out that the owner wasn’t there, had gone away on holidays.

Massingham: Are you sure about that?

Newman: positive. There was a phone call made that night, I don’t know who the phone call was by.

Massingham: Mmm, mmm.

Newman: But I instructed that someone needed to ring the owner and I almost a, a hundred percent positive that the owner was away at the time.

Massingham: Because we’ve spoken to the owner, he actually witnessed certain aspects of what occurred.

Newman: I don’t believe the owner because the owner came into Mackay Police Station and apparently ranted and raved and wanted his fence paid for and so I don’t believe anything the owner had to say. Um and as I said we, for a start nobody even approached us. Knocked on the door loudly waiting for the Duty Sergeant to arrive to breath-test me, no-one came to the door, the place was in complete darkness, walked around the back there was nobody in that house.

Massingham: Um his wife indicates um that she was home and provided a version as well.

Newman: That’s not true.

Massingham: Not true.

Newman: That’s not true at all.

Winter: She provided a version to us sorry not –

Newman: I know.

Winter: - not to you.

Newman: I know I’m saying she wasn’t home.

Winter: Yeah.

Newman: She’s, that she’s lying that’s rubbish. There was nobody at that house whatsoever. There was other people converged from other houses and came down towards us.

Massingham: Mmm, mmm.

Newman: But not from that house at all. And I was there for a good oh over half an hour waiting for the Duty Sergeant to arrive from Mackay Station and nobody was at that house.

  1. [120]
    Statements were obtained from the home-owners, Mr and Mrs Roberts.[40]
  2. [121]
    Mr Roberts was interviewed on 6 March 2013 by Detective Inspector Massingham. He was asked about the damage to the fence and commented[41]:

Roberts: Um um but it’s just the thing that disappointed me was um, there was um, I guess that the police didn’t actually come in and um and um and at least apologise for running into the fence if nothing else.

  1. [122]
    In that interview he further commented[42]:

Roberts: But the best, best thing, the only comment I would have was that police didn’t actually come in and knock on our door, just out of courtesy.

  1. [123]
    Mr Roberts was further interviewed on 4 November 2014 by Detective Senior Sergeant Dugger. He was asked about police knocking on the door on the night of the incident[43]:

Dugger: You’ve stated that no police came and knocked on the door that night

Roberts: Not, not that night

Dugger: Okay are you positive about that?

Roberts: Yes I am, yes I am

Dugger: Okay. Had a police officer come and knocked on either the door to the lounge room or if they come through the carport and knocked on the door, um would you have answered the door?

Roberts: If they identified themselves as the police, yes, yes

Dugger: But you say that never happened?

Roberts: No I don’t I don’t recall anybody knock, knocking on the door

Dugger: Okay, um there is some suggestion that you were on holidays at that time and the house was vacant. What do you say about that?

Roberts: No, definitely not, definitely not.

  1. [124]
    Mrs Roberts was also interviewed by Detective Senior Sergeant Dugger and Detective Sergeant Browne on 4 November 2014. She was asked if someone walking into the yard would be able to see if anyone was home, and commented[44]:

Roberts: So there would have been, we were watching the TV, there would have been um, two lights on for sure, those two there.

Dugger: Okay and if you were out on the street, would you, would you be able to tell that the lights were on inside from…?

Roberts: Um…

Dugger: If you walked into the yard?

Roberts: If you walked into the yard, yes

Dugger: yeah okay

Roberts: From the gate, with that carport down it is a bit difficult if you stay on the footpath, but if you come inside

Dugger: There’d be no. no question that someone was home

Roberts: No, no, no

  1. [125]
    She was further asked if they would have heard someone knocking on the door[45]:

Dugger: Okay, there is a suggest, there has been a suggestion ah by persons present that they did come into the house and they did lock, knock loudly on the door. What do you say to that?

Roberts: Ah, no because we were sitting here and the TV is not that loud because um one daughter’s bedroom is just through that wall

Dugger: Yep

Roberts: And the other was is down there

Dugger: Yep

Roberts: And, no

Dugger: So if it…

Roberts: It’s not

Dugger: Not possible

Roberts: It’s…no, it’s not possible

Dugger: Okay, so the other suggestion was that the house was vacant and was in darkness ah on that evening

Roberts: No

Dugger: And another suggestion was, that the family was on holidays

Roberts: Definitely not

  1. [126]
    Mrs Roberts said they heard cars driving away. She was asked when they had gone to bed and commented[46]:

Dugger: If the police had stayed out there, would you have stayed out awake, you know still expecting them to come in?

Roberts: Well we stayed up until about ten thirty

Browne: Yep

Roberts: Sort of thinking maybe someone was going to come in

Browne: And that’s why I just wanted to ask, you know

Roberts: yes

Browne: That’s why I was sort of asking along those lines. You were fairly satisfied that, that it was all over out there and they were all leaving and that’s when you’ve decided no one is coming so we’ll go to bed

Roberts: yes

Dugger: Okay and just UI…Had someone come back later on whilst you were asleep and knocked on the door, would you expect that that would have woken you?

Roberts: Ah, yes cause it takes me ages to go to sleep. Graham may not have heard it but I certainly would have and

  1. [127]
    Constable O'Keefe, the accompanying officer was asked about the incident in an interview on 6 November 2014, but was unable to recall what occurred in relation to approaching the residents[47]:

Constable O'Keefe was questioned whether he, the subject member Newman or any other officer present made any inquiry with the residence of 5 Maple Drive, Andergrove. Constable O'Keefe stated he had no recollection and was unable to answer the question. He stated due to passage of time and his current medical condition he was unable to confirm or otherwise whether any officer approached the residents of 5 Maple Drive, Andergrove during this incident.

  1. [128]
    Counsel for Mr Newman submits[48] that in a matter of this nature the requisite standard of proof is that identified in Briginshaw v Briginshaw[49]  and refers particularly to the observation of Dixon J that ‘In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences’.
  2. [129]
    He submits that in light of the nature of the charge, cogent evidence would be required in order to substantiate the matter against (Mr Newman); and that this is a matter in which ‘reasonable satisfaction’ could not be produced by ‘inexact proofs, indefinite testimony, or indirect inferences’.
  3. [130]
    He submits as to the element in dispute that:[50]

3.4.1 The issue for the present tribunal’s determination, is whether the available evidence is sufficient to substantiate, to the requisite standard, that (Mr Newman) provided a ‘knowingly false’ version of events.

3.4.2 The onus upon (the assistant Commissioner) to demonstrate (Mr Newman) provided such evidence.

  1. [131]
    He submits that the evidence does not demonstrate, to the requisite standard, that (Mr Newman) provided a ‘knowingly false’ version of events;[51] and that there is no cogent evidence that Mr Newman, as at the date of his disciplinary interview on 1 May 2013, knew his evidence to be false.[52]
  2. [132]
    Counsel for the Assistant Commissioner submits that the principle in Briginshaw[53] does not go to the standard of proof but to the standard of evidence that is required.[54]
  3. [133]
    He submits that the evidence clearly or cogently demonstrates that (Mr Newman) knowingly provided information which was untrue to Detective Inspector Massingham, and that:

163. The clear evidence that demonstrates, on the balance of probabilities, (Mr Newman) knowingly provided false information to Detective Inspector Massingham, is the evidence of Mr and Mrs Roberts. Clearly Mr and Mrs Roberts were at home and had lights on inside the house such that it would have been visible to (Mr Newman), if he did indeed enter their yard and knock at the door.

164. There can be no doubt that Mr and Mrs Roberts were at home at the material time because many of the events that they viewed were consistent with the various versions of events given by (Mr Newman).

165. it is submitted that there is clear evidence that (Mr Newman) did give knowingly false information to Detective Inspector Massingham in respect of the statements (Mr Newman) made during the discipline interview as referred to above.

  1. [134]
    The evidence of Mr Newman and Mr and Mrs Roberts is sufficiently identical in respect of the events of that night as to the sound of the collision; the apprehension of the suspect; the calling of assistance by Mr Newman; and the attendance of numerous other police; for it to be beyond any doubt that all of them were in fact in attendance on that evening.
  2. [135]
    The difference in the evidence of Mr Newman and Mr and Mrs Roberts is as to what Mr Newman did as to the house.
  3. [136]
    Each of Mr Newman, and Mr and Mrs Roberts, are clear and adamant in their recollections as to whether Mr Newman knocked on the door. Mr Newman says he absolutely knocked on the door, and that Mr Roberts is lying to say otherwise. Mr and Mrs Roberts are adamant that no-one knocked on the door, that they were home with the lights on, and that would have been apparent to anyone knocking at the door. Mrs Roberts said that the television was not loud, as their daughter’s bedroom is in the next room.
  4. [137]
    I have previously attempted to reconcile the evidence of these three witnesses by postulating that Mr Newman may not have been able to see into the house due to the differing light levels inside and outside the house, and that the volume of the television may have made it hard to hear a knock on the door.
  5. [138]
    Ultimately, the evidence of Mr Newman is, on further consideration of their full statements, irreconcilable with the evidence of Mr and Mrs Roberts as to their being lights on at the house, and as to the television not being loud.
  6. [139]
    The version of Mr and Mrs Roberts is understandable, and they corroborate each other. There is no suggestion that they have conspired with each other to fabricate a version.
  7. [140]
    The version of Mr Newman is not corroborated. The other police officer in attendance had no recollection of whether Mr Newman knocked on the door.
  8. [141]
    On balance I am satisfied that the version of Mr and Mrs Roberts is preferable, and that Mr Newman did not in fact knock on the door that evening.
  9. [142]
    The question then becomes whether Mr Newman ‘knowingly’ made a false statement when he told the officer in the course of the disciplinary investigation that he did knock on the door.
  10. [143]
    Whilst Mr Newman at one point in his statement says that he was ‘almost a hundred percent positive that the owner was away at the time’[55], in the bulk of his statements he is adamant in his recollections. He does not suggest any uncertainty in his recollection overall.
  11. [144]
    The consequence is that Mr Newman did positively assert to the investigating officer a statement as to knocking on the door which I accept was untrue. He made those assertions so forcefully that the only possibilities are that he do so knowingly, or did so with a complete failure of accurate record of the events. If Mr Newman did fail to recollect that aspect of the events so completely, then this would throw into question the whole of his evidence as to the events of the evening.
  12. [145]
    Mr Newman did not display any apparent doubt as to the complex and extended events of the evening, and I am satisfied that he did recall the events of the evening.
  13. [146]
    The compelling conclusion therefore is that Mr Newman did recollect the events of the evening, which would include recalling that he did not knock on the door and that he did, for reasons unknown, knowingly state positively and falsely that he knocked on the door.
  14. [147]
    I am therefore reasonably satisfied that Mr Newman did make a false statement to Mr Massingham. The making of a false statement to an investigating officer is clearly an act that falls below the standard expected of a serving officer and does constitute misconduct.
  15. [148]
    I therefore find that allegation 1 (f) is substantiated as misconduct.

Findings on Substantiation

  1. [149]
    I find as to Matter 1(a) as to failing to treat members with respect and dignity, that the matters as to the Burton and O'Brien allegations are substantiated as a breach of discipline, but that the Burke and Tibbett allegations are not substantiated.
  2. [150]
    The Decision of the Assistant Commissioner found that Mr Newman’s conduct as to Matters in 1(b), 1(c) and 1(e) amounted to misconduct. Those findings are not contested. I will discuss those matters further as to sanction, but note at this stage that I am satisfied that misconduct is shown as to those matters, and find accordingly.
  3. [151]
    Matter 1(d) is not the subject of the decision of the Assistant Commissioner or of review.
  4. [152]
    I find that Matter 1(f) as to knowingly providing false information to a senior officer conducting a disciplinary investigation is substantiated as misconduct.
  5. [153]
    I find in overall as to substantiation that:
    1. a)
      A disciplinary finding of breach of discipline is substantiated as to Matter 1(a) as to the Burton and O'Brien allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
    2. b)
      A disciplinary finding is not substantiated as to Matter 1(a) as to the Burke and Tibbett allegations that as a shift supervisor Mr Newman failed to treat members with respect and dignity.
    3. c)
      A disciplinary finding of misconduct is substantiated as to Matter 1(b) that Mr Newman drove a motor vehicle at excessive speed when it was not authorised or justified.
    4. d)
      A disciplinary finding of misconduct is substantiated as to Matter 1(c) that Mr Newman submitted an official report knowing it contained information that was false or misleading.
    5. e)
      A disciplinary finding is not substantiated as to matter 1(d)
    6. f)
      A disciplinary finding of misconduct is substantiated as to matter 1(e) that Mr Newman was unprofessional toward members of the public and inappropriately grabbed hold of a member of the public without authorisation, justification or excuse.
    7. g)
      A disciplinary finding of misconduct is substantiated in relation to Matter 1(f) that Mr Newman knowingly provided false information to a senior officer conducting a disciplinary investigation.

Sanction

  1. [154]
    The Tribunal has no power to impose a sanction where a matter is found to be a breach of discipline.[56] I shall therefore not consider sanction as to Matter 1(a).
  2. [155]
    The Tribunal has power to review the sanction imposed by the assistant commissioner in respect of the matters where misconduct has been found, I shall therefore consider sanction as to Matters 1(b), 1(c), 1(e) and 1(f).
  3. [156]
    The disciplinary sanction order imposed by the Assistant Commissioner  under section 10(e) of the Discipline Regulations was that:
    1. a)
      The Applicant be reduced in rank from Senior Sergeant level 4.2 to Senior Constable Level 2.9; and
    2. b)
      The Applicant would progress to Sergeant at Level 3.2 after a period of 12 months from 6 March 2015 if at any stage the Assistant Commissioner of the Applicant’s Region is satisfied that the Applicant:
      1. (i)
        Has completed comprehensive training or development and that the training has corrected the applicant’s communication, management and integrity failures;
      2. (ii)
        Has a capacity to perform the functions of a Sergeant of Police;
      3. (iii)
        Has completed a successful PDA for the previous 12 months;
      4. (iv)
        Has within the previous 12 months presented himself for an assessment by the QPS Safety and Wellbeing Branch;
      5. (v)
        Has undertaken any counselling or other programme recommended by the QPS Safety and Wellbeing Branch for a period of 12 months (or shorter period recommended by the Unit): and
      6. (vi)
        Has not engaged in any misconduct during the previous 12 months.
    3. c)
      Further, if the Applicant progressed to Sergeant under the sanction, the respondent ordered that after a period of 12 months of the Applicant being at 3.2, the Applicant would progress to Sergeant 3.4 if at any stage the Assistant Commissioner for the region is satisfied that the applicant:
      1. (i)
        Had continued training or development to address the applicant’s communication, management and integrity failures;
      2. (ii)
        Had a capacity to perform at the level expected of an experienced sergeant of police;
      3. (iii)
        Had completed a successful PDA for the previous 12 months; and
      4. (iv)
        Had not engaged in any misconduct in the previous 12 months.
  1. [157]
    The disciplinary sanction was to take effect immediately on 6 March 2015.
  2. [158]
    The Assistant Commissioner submits that the overriding principle guiding the Tribunal in reviewing a sanction is the protection of the public, the maintenance of confidence in the service and the maintenance of integrity and performance of police duties[57].
  3. [159]
    In considering the appropriate sanction I have regard to the events and the surrounding circumstances, the officer’s experience and history, and any mitigating factors.
  4. [160]
    I will discuss each of the Matters having regard to the relevant considerations as to sanction.

Matter 1(b)

  1. [161]
    The particulars of Matter 1(b) are[58] that:

On 13 January 2011, the Applicant was a Sergeant, Shift Supervisor at Northern Beaches Police Station and his rostered shift was 2.00pm to 10.00pm and at 7.50pm on Glen Park Street, Mackay, the Applicant drove a vehicle at excessive speed which was not authorised or justified and his speed was detected at 118kph in a 60kph zone.

  1. [162]
    Mr Newman made a written report as to the incident.[59] He said that he was on duty in a patrol vehicle in Andergrove, a suburb of Mackay, when he heard a radio transmission as to a reported incident at a doctor’s practice involving a person who was sniffing paint. He says that he recognised the subject from the description, as a person known to him, who had assaulted a female police officer and later a male officer in late 2010.
  2. [163]
    He said that he heard on the radio that an all female crew of a Senior Constable and a Constable had responded to the tasking of the job and were proceeding to the scene, and that he then made an operational decision:

17. I then immediately made an operational decision and judgment to proceed by way of urgent duty driving to the location in Grandview Drive in order to provide assistance to the two female officers, as I was aware that my present location … would be closer than the current location of (a third police vehicle).

  1. [164]
    He said that he did not obtain a Code for priority travel and seek permission from the radio controller primarily to keep the radio communication channel free in case the female officers on scene were in a position that they required to request immediate and urgent assistance.
  2. [165]
    He says that he activated the emergency lights and siren of the police vehicle, and a high pitched sound emitted from the control box inside the vehicle, and the lights on the control box lit up continuously.
  3. [166]
    Whilst he was travelling to the scene he observed a high visibility flash from his right and believed he had activated a speed camera device. He slowed and returned to the speed camera vehicle and had a conversation with the Senior Constable operating the camera. He realised that the emergency lights and siren on the police vehicle were not working, and pointed that out to the camera operator.
  4. [167]
    He then proceeded to the scene where the subject had a dishevelled appearance, was unsteady on his feet and agitated, and talking in a raised voice to the officers. A third police vehicle then arrived, and the subject was taken into custody.
  5. [168]
    The Assistant Commissioner found that there was free airtime in the 3 minutes and 42 seconds between the time when the job was assigned and when Mr Newman activated the speed camera, and that there a number of pauses in communication that were non-urgent matters when Mr Newman could have advised police communications of his perceived heightened threat and subsequently obtained an appropriate priority code[60].
  6. [169]
    The Assistant Commissioner also found that the job was assigned to a routine job with no priority code given, and it was clear from information provided by the radio operator that the job was a routine matter as it did not involve any injury or threat of injury to any person or property.
  7. [170]
    The Assistant Commissioner found that he had serious doubts that Mr Newman held real concerns for the safety of the attending officers as he did not advise them of the risk. He also found that Mr Newman’s assertion of the need to urgently proceed was contradicted by his returning to the speed camera unit to speak with the operator.
  8. [171]
    It was submitted on behalf of Mr Newman that[61]:

In summary it is submitted the Tribunal would accept that;

1. In driving his vehicle at excessive speed, the applicant held concerns about an offender, whom he understood to be dangerous, that other police were attending upon;

2. Upon hearing the same radio communication heard by the applicant, the conclusion that police had been dispatched to attend upon a known dangerous offender was shared by another senior officer; and

3. The applicant’s driving was not such to demonstrate a total disregard for the safety of other road users.

  1. [172]
    It is hard to reconcile Mr Newman’s actions in proceeding at a speed that was almost double the speed limit of 60kph due to urgency with his then turning and coming back to the speed camera which he activated. If the matter was truly urgent, he would be expected to proceed regardless of the camera activation, and to have explained the situation later.
  2. [173]
    Mr Newman must have felt some need to explain himself at the immediate time to the camera operator. The possibility may arise that he was endeavouring to forestall the issuing of a traffic infringement notice, as did subsequently occur.
  3. [174]
    The situation is that Mr Newman was proceeding at a high speed without authorisation by means of an assigned priority code. His actions were at best reckless, and displayed poor judgment and a failure to observe proper procedure.

Matter 1 (c)

  1. [175]
    This matter arose in the aftermath to matter 1(b). The particulars were[62]:

On 28 February 2011 you were a Sergeant, Shift Supervisor at Northern Beaches Police Station.

On 28 February 2011 you submitted an official report to the officer in Charge of Mackay Northern Beaches Police Station relating to your speed camera activation on 13 January 2011 at Glenpark Street, Mackay. This official report contained untruthful and misleading assertion’s in an attempt to provide justification as to why you exceeded the speed limit.

In your report you articulate reasoning for your operational decision to proceed to the job at Grandview Drive, Mount Pleasant by way of urgent duty driving. The reasoning articulated did not exist at the time you made your decision. In your report you were misleading when you articulated a high level of urgency to provide assistance to the crew in attendance.

Your report recommended that the infringement notice be waived. The submission of this report led to the infringement notice not being issued to you for the speeding offence on 13 January 2011.

  1. [176]
    The Assistant Commissioner submits that Mr Newman provided untruthful and misleading assertions in his official report about the speed camera activation that there was a high level of urgency needed to provide assistance, so as to avoid a traffic infringement notice[63].
  2. [177]
    It was submitted for Mr Newman that[64] the level of urgency articulated in the report would be characterised as an ‘exaggeration’ or ‘embellishment’, rather than a complete fabrication and that the level of misconduct is accordingly well below what would otherwise be the case had he completely fabricated the circumstances.
  3. [178]
    The difficulty with the submission for Mr Newman is that the report which he made did not indicate any qualification or uncertainty as to urgency. The report was based upon a positive statement of there being an actual and immediate urgency. Mr Newman was therefore not simply exaggerating, he was mis-stating the event.

Matter 1(e)

  1. [179]
    The particulars of this matter were[65]:

On 27 December 2013 you were a Senior Sergeant of police, attached to the Mackay District. On this date you were under a Notice of temporary redeployment, redeploying you to a non-operational role as an assistant to the Mackay District Tactician.

On 27 December 2013 at Kmart Gladstone, whilst off duty you identified yourself as a police officer to Mr Adrian Simpson however you refused to provide your name, rank, registered number or station upon request.

You spoke to Mr Adrian Simpson in a rude and insulting manner.

You spoke to Miss Haley White in a rude and disrespectful manner.

You grabbed hold of Mr Adrian Simpson by the shirt collar and pulled him backwards when he attempted to leave,

  1. [180]
    The incident occurred at the Kmart checkout in Gladstone. Mr Simpson had been ahead of Mr Newman at the checkout, but left to obtain another item. As he returned to the checkout, there was contact between Mr Simpson and Mr Newman’s seven year old daughter. An altercation then ensued between Mr Simpson and Mr Newman.
  2. [181]
    Mr Newman explained his actions as follows[66]:

I concede, as I did in my disciplinary directed interview, that I did fail to provide my required details to the witness Mr Simpson but did not state to him that once on-duty police officers arrived or if he wished to attend the local shopping centre’s Police Beat, I would be more than willing to provide him my full details. The reason for this was due to the outward volatile and threatening behaviour that I had witnessed Mr Simpson display towards me, the fact that it was clearly upsetting my children and added to the earlier collision he had with my youngest daughter and the fact my immediate priority was to get my children to a known place of safety, I was fearful of providing Mr Simpson anything until I was confident there were other independent persons present who would be in a position to and able to calm him if the incident escalated further.

I again concede I did not discharge my exact obligations in accordance with the PPRA and that due to the fact that I have previously conducted a number of commended, lawful off-duty arrests in my past, I should have been more aware of my requirements. I still maintain the safety and protection of my children was my most paramount objective on that day, but I accept the foundations of the charge.

  1. [182]
    Mr Newman denied that he was rude or unprofessional towards Mr Simpson, or that he spoke to Ms White in a rude and disrespectful manner. He admitted that he grabbed hold of Mr Simpson by the shirt collar and pulled him backwards when he attempted to leave, but claimed[67] this was an act of compulsion, provocation or self-defence in response to a threat by Mr Simpson that Mr Newman was ‘gone’ and that he would follow him wherever he went.
  2. [183]
    It was submitted for Mr Newman that he had a belief that his daughter had been hit by Mr Simpson, and that he may have overreacted. It was acknowledged in the submission that Mr Newman may have been ‘in a bad mood’ as described by a witness, and that this incident occurred whilst he was ‘suffering from personal stress as a result of these prolonged investigations’[68].
  3. [184]
    The Assistant Commissioner submitted that Mr Newman’s behaviour could not be justified or downgraded as an overreaction by a parent, was serious misconduct, and notes that[69]:

It must be kept in mind, that upon reviewing the material, the Respondent found that there was sufficient evidence for a criminal proceeding to be commenced against the applicant for the offence of common assault on Mr Simpson under the provisions of section 355 of the Criminal Code, but that the Respondent found it was not in the public interest to commence criminal proceedings against him because the Applicant’s behaviour, on this occasion, could be adequately dealt with within the realms of the QPS discipline system.

  1. [185]
    Mr Newman was clearly aroused because he formed the impression that Mr Simpson had made contact with his young daughter, and the matter quickly escalated, with both men adopting confrontational postures.
  2. [186]
    Mr Newman made reference to his being a Police Officer, which drew his occupation into highlight, but then refused to further identify himself. Those actions bring the reputation of the police service into issue.
  3. [187]
    Mr Newman’s admitted over-reaction together with his reference to his status as a police officer bring the reputation of the police service into disrepute.

Submissions as to Sanction by the Assistant Commissioner

  1. [188]
    The Assistant Commissioner noted that Mr Newman was inducted into the service in March 1987 and had progressed to the rank of Senior Sergeant 4.2, and his length of service and experience was[70]:
    1. (a)
      He had 28 years experience with the service and had performed operational duties across a variety of areas in Queensland and that he attained his detective appointment in 1992, and had performed many years in plain clothes positions;
    2. (b)
      In September 2005, he was promoted to the rank of Sergeant, shift supervisor Gladstone district and that in June 2008 he transferred to the Gladstone watchhouse and took up the position of Sergeant, Officer in Charge, Watchhouse Manager, and that in February 2010 he transferred to the Mackay District and commenced duty as a Sergeant, General Duties Officer within the Mackay Division.
    3. (c)
      His work up until 2010 was recognised through a range of certificates and commendations
    4. (d)
      In March 2012 he was promoted to the rank of Senior Sergeant, District Duty Officer, Mackay District and that the 6 month probation period for that promotion ended on 5 September 2012.
  1. [189]
    The Assistant Commissioner noted that the conduct relating to Matter 1(b) and (c) occurred whilst Mr Newman was a Sergeant, Shift Supervisor, and that if the conduct relevant to those matters had been detected and reported at the time it occurred, Mr Newman would not have obtained the rank of Senior Sergeant[71].
  2. [190]
    The Assistant Commissioner found overall as to sanction that[72]:

I am particularly concerned about the potential damage to the reputation of the service because of your misconduct as outlined in matter One (a), (b), (c), (e) and (f). The nature of your conduct is improper and it does not meet the expectations of the community. I consider that your conduct is serious and it clearly has the ability to erode public confidence in the QPS. I have considered all the evidence before me, I am satisfied you have poor communication skills on occasions, have poor judgment even when you know you are under scrutiny, you lack insight and self-awareness into your own behaviour and you have made untruthful assertions in an official document which has resulted in personal gain and in a discipline interview. Throughout all the material before me I note that when your behaviour is challenged by investigators your immediate response is to call the complainants liars.

  1. [191]
    It was submitted for the Assistant Commissioner that those overall comments hold true even if matters 1(a) and (f) were found not to be substantiated, and that it is not simply a mathematical exercise to reduce the original sanction if two of the five matters of misconduct originally found against Mr Newman were found to be unsubstantiated[73].
  2. [192]
    It was further submitted for the Assistant Commissioner that the misconduct in relation to matters 1(b), (c) and (e) in themselves amounted to misconduct which failed to protect the public, eroded maintenance of public confidence in the Service and failed to maintain the integrity in the performance of police duties; and that the original sanction remains applicable on those matters alone, and should be confirmed by the Tribunal.

Submissions as to Sanction by Mr Newman

  1. [193]
    It was submitted on behalf of Mr Newman that the four previously substantiated complaints within Matter 1(a) were matters which had significant influence upon the original sanction imposed by the Assistant Commissioner, and that in the circumstances where the Tribunal was not to sanction Mr Newman for those matters, that the original sanction is of little assistance to the Tribunal[74].
  2. [194]
    It was submitted that it would be undesirable for the Tribunal to simply reduce the original sanction to allow for the matters which were no longer substantiated, but that the Tribunal should sanction Mr Newman ‘afresh’ without placing significant weight upon the original sanction or the reasons for it[75].
  3. [195]
    It was submitted that Matters 1(b) and (c) occurred in January and February 2011; Matter 1 (e) occurred in December 2013; and that the delay in finalisation of the matter has had a significant effect on Mr Newman who had endeavoured to maintain a professional and proactive approach to his duties despite the high levels of stress and anxiety he experienced during the period, and that[76]:

In addition to the stress of the investigation itself, during that period the applicant has been restricted from progressing in pay-points. The applicant also provided evidence that throughout the investigation period he was unable to undertake any QPS course or advanced training or attend or assist in the 2014 G20 Leader’s summit.

  1. [196]
    It was noted that delay has been held to be a relevant factor in mitigation in the disciplinary context, and that in CMC v Swindells & Gardiner[77] the relevant delay was held to be of particular relevance where the subject officer demonstrated good work since the commencement of the investigation, thereby allowing the decision maker ‘to assess what the officer has learned from the salutary experience[78].
  2. [197]
    It was submitted that Mr Newman had no previous disciplinary matters substantiated against him over 28 years of meritorious service; that there was no indication he had been the subject of any other unfavourable complaints or criticism of his performance; and his previous good conduct was accepted by the Assistant Commissioner who accepted that he possessed ‘the ability to perform your role as a police officer to a high standard when required’.
  3. [198]
    It was further submitted that a significant bundle of references in Mr Newman’s favour were provided, which provide a level of weight in his favour, and that a significant portion of them did refer to the conduct being considered.
  4. [199]
    It was noted that demotion, particularly from Senior Sergeant to Senior Constable, carries with it an element of humiliation, as well as loss of salary.
  5. [200]
    It was submitted that the sanction imposed was excessive.
  6. [201]
    It was initially submitted on behalf of Mr Newman during the course of these proceedings[79] that the appropriate sanction would be as follows:

(From 6 March 2015) reduction in rank from Senior Sergeant level 4.2 to sergeant Level 3.6; and

After a period of 12 months, to progress to Senior Sergeant level 4.1, if the Applicant has not engaged in any misconduct during that 12 month period.

  1. [202]
    Those submissions as to sanction on behalf of Mr Newman were made at a time when Matter1(a) relating to failing to treat members with respect and dignity was still undetermined, and Matter 1(f) as to knowingly making a false statement to a senior officer, was not included as a finding of misconduct.
  2. [203]
    In his closing submissions, Counsel for Mr Newman submitted that, if I found Matter 1(f) to be substantiated as misconduct, the appropriate sanction would be:
    1. (1)
      A demotion to Sergeant Level 3.2 from 6 March 2015
    2. (2)
      Progress to Sergeant Level 3.6 from 6 March 2016
    3. (3)
      Further progress to Senior Sergeant 4.1 from 6 March 2017 if no further penalty or misconduct

Sanction

  1. [204]
    The effect of my findings are that misconduct is made out in all the matters as considered by the Assistant Commissioner in his decision, except for matter 1(a).
  2. [205]
    The matter that is not made out as misconduct, 1(a), relates to rude or inconsiderate or offensive behaviour. That behaviour is of a lesser nature overall than the other matters, as whilst it is concerning, it is less damaging to the operation and reputation of the police service than the other matters which concern deliberate making of false statements, driving with a risk of endangering the public, and a physical altercation with a member of the public.
  3. [206]
    The matters of misconduct that are made out, and their surrounding circumstances, form an overall picture.
  4. [207]
    There is a commonality between the chase by Mr Newman in a police vehicle of an offender on a bicycle which led to the police vehicle mounting the footpath and hitting a fence; his self-authorised high speed drive to a job where he thought he might be needed to assist two female officers; and the incident at the shopping centre where he had a physical altercation with a man who he thought had come into contact with his daughter.
  5. [208]
    In each case, the actions of Mr Newman were not properly restrained, and either placed other road users or persons at risk, or demonstrated a level of volatility that is contrary to the controlled and professional behaviour required of a police officer.
  6. [209]
    Additional to these instances of unrestrained behaviour are the two substantiated matters of giving false reports as to knocking on the door of the house, and as to the speeding incident. The giving of false reports is very serious as it undermines the trust between the service and its officers, and the confidence it can have to bestow authority on the officer.
  7. [210]
    The combination of unrestrained behaviour and making false reports produces an overall picture that gives rise to the need for a serious sanction to apply.
  8. [211]
    Mr Newman has a long history of meritorious service as a police officer. He has been given many favourable references. He has been subject to the protracted disciplinary proceedings which have caused him anxiety and stress. Those are factors which are to be taken in to consideration in consideration, and mitigation, of the appropriate sanction.
  9. [212]
    The demonstrated behaviour falls well short of the standard expected of a Senior Sergeant. A significant initial demotion is required to reflect disapproval of this behaviour by a Senior Sergeant.
  10. [213]
    It is appropriate that Mr Newman should have been demoted in a very significant way, and I consider that an initial demotion to the rank of Senior Constable for a period of 12 months from 6 March 2015 was warranted. He is nevertheless an experienced officer, and the highest paypoint within that rank of Senior Constable of 2.9 was appropriate.
  11. [214]
    He has demonstrated that he can act as a Sergeant, and is experienced in that role, so he should have been able to thereafter progress to the rank of Sergeant. Having regard to the mitigating factors, that promotion should have been as significant as possible, so promotion of a full rank, to the highest band within the rank of Sergeant, which is paypoint 3.6, was appropriate.
  12. [215]
    Counsel for the Assistant Commissioner, in his closing submissions, submitted that the central issue is whether the Commissioner has confidence in the officer being able to perform as a Senior Sergeant. I accept the force of that submission.
  13. [216]
    The question then becomes as to whether Mr Newman should be automatically returned to his former rank of Senior Sergeant after some period of time.
  14. [217]
    I accept the point made by the Assistant Commissioner that if matters 1(b) and (c), which are substantiated as misconduct, had been known at the time of his promotion, that Mr Newman would never have been made a Senior Sergeant.
  15. [218]
    If it was not appropriate for Mr Newman to have been made a Senior Sergeant at the time of his promotion in March 2012, is it appropriate that I order that he progress to Senior Sergeant?
  16. [219]
    Some four years have passed since that time, and Mr Newman has had the stress of these proceedings and time to reflect upon his actions, as discussed in CMC v Swindells & Gardiner. Notwithstanding those considerations, I am not satisfied, having regard to my findings as to his pattern of behaviour, that it is appropriate to order that he proceed to the rank of Senior Sergeant.
  17. [220]
    Accordingly, I set aside the original decision of the Assistant Commissioner made on 6 March 2015; and substitute the decision that a disciplinary order is made, pursuant to Section 10(e) of the Police Service (Discipline) Regulations 1990 (Qld), that:
    1. (1)
      Mr Nikolas Newman is reduced in rank from Senior Sergeant 4.2 to Senior Constable 2.9 from 6 March 2015 until 6 March 2016.
    2. (2)
      Mr Nikolas Newman is to progress from Senior Constable 2.9 to Sergeant 3.6 from 6 March 2016.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20.

[2] Crime and Corruption Act 2001 (Qld) s 219H.

[3] Applicant’s Bundle of transcripts, Tab 4.

[4] Burton transcript 13 July 2015, p 3.

[5] Burton transcript 13 July 2015, p 4.

[6] Burton transcript 13 July 2015, p 5.

[7] Parnell transcript 20 July 2015, p 3.

[8] Steindl transcript 30 July 2015, p 2.

[9] Submissions of S W Zillman, filed 27 October 2015.

[10] The Misconduct Tribunal Appellate Jurisdiction, Criminal Justice Commission, Appeal No 11 of 1996, 24 February 1997, at p 15.

[11] Ibid, at p 16.

[12] Misconduct Tribunal, 17 September 1999, p 10.

[13] [2015] QCAT 391.

[14] Submissions of J W Merrell, filed 10 November 2015.

[15] Applicant’s Bundle of transcripts, Tab 8.

[16] Ibid, p 5.

[17] Ibid, p 7.

[18] Record of interview Constable Stevens, p 3.

[19] Record of interview Constable Stevens, p 7.

[20] Record of interview Constable Stevens, p 9.

[21] Submissions of S W Zillman, filed 27 October 2015, paras [2.7.10] and [2.7.11].

[22] Submissions of J W Merrell, filed 10 November 2015, para [101].

[23] Transcript of Radio Call 2, bundle of transcripts, Tab 7

[24] Volume 3 of Material, p 99.

[25] Applicant’s Bundle of transcripts, Tab 3.

[26] [1980] 30 ACTR 19.

[27] Submissions of S W Zillman, filed 27 October 2015, para [2.4.4].

[28] [1980] 30 ACTR 19, at [28].

[29] Submissions of J W Merrell, filed 10 November 2015, para [86] and [87].

[30] Applicant’s Bundle of transcripts, Tab 3.

[31] Record of interview Ms Tibbett, p 7.

[32] Submissions of S W Zillman, filed 27 October 2015, para [2.3.4].

[33] Submissions of J W Merrell, filed 10 November 2015, para [122].

[34] Draft Consent order APL058-16, filed 27 June 2016, para 1(b).

[35] [117] footnote 38 which read: In the decision, those statements are said to be at around page 905. On the material in evidence, Volume 4, pages 894 to 949 are missing, and I have been unable to read them in original form. I have relied on the repeating of extracts of those statements in the decision.

[36] Material Volume 3, p 146.

[37] Interview Newman, line 605.

[38] Interview Newman, line 735.

[39] Ibid, line 780.

[40] Volume 4, pages 894 to 949.

[41] Volume 4, p 900, line 159.

[42] Volume 4, p 901, line 201.

[43] Volume 4, p 916, line 398.

[44] Volume 4, page 934, line 174.

[45] Volume 4, page 937, line 289.

[46] Volume 4, page 946, line 575

[47] Ibid, p 795.

[48] Submissions of S W Zillman, filed 27 October 2015, para [3.3.1].

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

[50] Ibid, para [3.4.1].

[51] Ibid, para [3.5.1].

[52] Ibid, para [3.5.3].

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

[54] Submissions of J W Merrell, filed 10 November 2015, para [154].

[55] Interview, Newman, line 780.

[56] DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162 at [19].

[57] Respondents submissions in respect of sanction, filed 4 March 2016, at [30].

[58] Respondents submissions in respect of sanction, filed 4 March 2016, at [49].

[59] Report by Senior Sergeant Newman dated 28 February 2011, Vol 3 material p104.

[60] Respondents submissions in respect of sanction, filed 4 March 2016, at [54(c)].

[61] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [3.1.10].

[62] Notice of Formal Finding, Vol 1 material p 121.

[63] Respondents submissions in respect of sanction, filed 4 March 2016, at [70] and [71].

[64] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [3.2.4].

[65] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [3.3.2].

[66] Subject officer’s submissions, Vol 1 material, p 31.

[67] Subject officer’s submissions, Vol 2 Material, p 34.

[68] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [3.3.8].

[69] Respondents submissions in respect of sanction, filed 4 March 2016, at [75].

[70] Respondents submissions in respect of sanction, filed 4 March 2016, at [36]. 

[71] Respondents submissions in respect of sanction, filed 4 March 2016, at [41].

[72] Respondents submissions in respect of sanction, filed 4 March 2016, at [87].

[73] Respondents submissions in respect of sanction, filed 4 March 2016, at [88] and [89].

[74] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [2.2.5].

[75] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [2.3.4].

[76] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [4.2.7].

[77] [2010] QCAT 490 at [24].

[78] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [4.2.8].

[79] Applicant’s submissions in respect of sanction, filed 12 February 2016, at [5.1.1.1] and [5.1.1.2].

Close

Editorial Notes

  • Published Case Name:

    Nikolas Newman v Assistant Commissioner Condon (No 2)

  • Shortened Case Name:

    Newman v Assistant Commissioner Condon (No 2)

  • MNC:

    [2016] QCAT 448

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    18 Nov 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490
2 citations
Jump To
Cite 1 - [2010] QCAT 490
Cite 2 - [2010] QCAT 490
DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162
1 citation
Jump To
Cite 1 - [2013] QCATA 162
McIntosh v Webster & Anor [1980] 30 ACTR 19
3 citations
Jump To
Cite 1 - [1980] 30 ACTR 19
Cite 2 - [1980] 30 ACTR 19
Cite 3 - [1980] 30 ACTR 19
Tolsher v Acting Assistant Commissioner Hollands [2015] QCAT 391
2 citations
Jump To
Cite 1 - [2015] QCAT 391
Cite 2 - [2015] QCAT 391

Cases Citing

Case NameFull CitationFrequency
Newman v Deputy Commissioner Linford APM & Anor (No 2) [2020] QCAT 3282 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.