Minns v Deputy Commissioner Martin
[2018] QCAT 213
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- Unreported Judgment
- Minns v Deputy Commissioner Martin[2018] QCAT 213
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Minns v Deputy Commissioner Martin[2018] QCAT 213
Minns v Deputy Commissioner Martin[2018] QCAT 213
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Minns v Deputy Commissioner Martin [2018] QCAT 213 |
PARTIES: | AARON MINNS (applicant) v DEPUTY COMMISSIONER PETER MARTIN (respondent) |
APPLICATION NO/S: | OCR144-17 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 13 July 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski |
ORDERS: |
|
CATCHWORDS: | POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where excessive force used against prisoners – whether deferral of promotion for five years is an excessive sanction Police Service Administration Act 1990 (Qld), s 1.4, s 7.4 Crime and Corruption Act 2001 (Qld), s 219A Medical Board of Australia v Martin [2013] QCAT 376 Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490 McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 Belz v Assistant Commissioner Wilson [2011] QCAT 632 Belz v Assistant Commissioner Wilson [2012] QCATA 185 Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) [2014] QCAT 488 Kuhn v Deputy Commissioner of Police Brett Pointing [2017] QCAT 16 Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37 |
REPRESENTATION: |
|
Applicant: | Gilshenan & Luton Legal Practice |
Respondent: | Queensland Police Service Legal Unit |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
Introduction
- [1]This case is about what sanctions should be imposed on a police officer, Mr Minns, who used excessive force against people in police custody. (Mr Minns remains a police officer, but because of changes in his rank it is simplest to refer to him simply as Mr Minns).
- [2]The excessive force was used on men who were restrained in handcuffs. There were three incidents. They occurred in late 2014 to early 2015. At the time, Mr Minns was a Senior Constable. He was prosecuted for assaults in relation to some of these matters, plus another matter, but he was found not guilty by a magistrate in May 2016. Subsequently, a police disciplinary investigation commenced. On 22 June 2017, Deputy Commissioner Martin found that Mr Minns had engaged in misconduct on three occasions. The sanctions imposed were, in summary:
- (a)Mr Minns was demoted from Senior Constable pay point 2.2 to Constable pay point 1.6;
- (b)his progression to Senior Constable was deferred for five years;
- (c)he was transferred to a general duties position within the Gold Coast District to be decided by his Assistant Commissioner;
- (d)he was to complete all necessary requalification in relation to operational skills before returning to operational duty;
- (e)he was to attend the Police Integrity Unit, Ethical Standards Command and complete a program on professionalism and ethical decision making within three months; and
- (f)he was to submit himself to the officer in charge of the Gold Coast Education and Training Office to assist with in-service training and presentations at least one day per month for 18 months, his role being to speak from his ‘own experiences and lessons learnt to other police officers about appropriate use of force and associated principles on why police officers should have a minimum use of force mindset’, and with the content to be approved by certain officers.
- (a)
- [3]On 4 July 2017 Mr Minns applied to QCAT for a review of the Deputy Commissioner’s decision. The application challenged both the findings of misconduct and the sanctions.
- [4]The Deputy Commissioner provided almost 1,900 pages of documents to QCAT, plus video footage and photographs.
- [5]The matter has not proceeded to a contested hearing because discussions between the parties have resulted in joint submissions on facts and sanctions dated 16 May 2018. There is no longer any dispute that Mr Minns engaged in misconduct. So far as sanctions are concerned, the parties propose, in addition to some minor variations to the sanctions imposed by the Deputy Commissioner, a reduction in the period during which Mr Minns is ineligible to progress to the rank of Senior Constable. The parties propose that this period be reduced from five years to only one year.
What did Mr Minns do?
- [6]There were three incidents. At the time, Mr Minns was a Senior Constable in the Gold Coast Rapid Action Patrols. Each incident involved the use of force against men while they were restrained by handcuffs. It is not necessary to name the men, but I should note that each incident involved a different man.
- [7]The following is a summary of the description of the incidents given in the joint submissions.
- [8]The first incident happened on 18 September 2014. Mr Minns was involved in the arrest of a man. When the man was in custody and restrained by handcuffs behind his back, Mr Minns kneed the man in the chest area.
- [9]Background to this incident was that the man had evaded police in a vehicle and on foot. Before he was apprehended, police were concerned that he may have had a firearm. When Mr Minns kneed the man, he believed that the man had spat at him. (The joint submission observes that the man accepted, when giving evidence in the criminal trial, that he probably spat at Mr Minns).
- [10]The second incident happened on 26 December 2014. Mr Minns was involved in the arrest of a man. While the man was in custody and restrained by handcuffs, Mr Minns struck the man with his fist in the back of his head and neck area. Mr Minns then pushed the man into the back of a police vehicle, causing the man’s face to strike against a metal area in the vehicle.
- [11]Background to this incident was that the man resisted arrest and made a ‘distasteful comment’ about Mr Minns’ appearance.
- [12]The third incident happened on 18 January 2015. Mr Minns was involved in executing a search warrant at a man’s home. While the man was in custody and restrained by handcuffs, Mr Minns rushed past other officers who had physical control of the man, grabbed one of his wrists and dragged him to the floor, and struck him with a closed fist to the back of the head.
- [13]Background is that the man had associations with an outlaw motorcycle gang; Queensland Police Service intelligence categorised him as high risk; and Mr Minns knew him to be flagged as potentially dangerous.
- [14]According to the joint submissions, the Deputy Commissioner determined that Mr Minns’ motivation for dragging the man to the floor was Mr Minns’ concern that the man could be attempting to destroy evidence of dangerous drugs.
- [15]The description of the facts in the joint submissions, outlined above, incorporates the original core findings of the Deputy Commissioner. Overall, though, in highlighting surrounding circumstances that may mitigate the wrongdoing, the description adopts a less critical stance in relation to Mr Minns’ conduct than the Deputy Commissioner took in the decision under review. For example, in his findings about the first incident, the Deputy Commissioner rejected the suggestion that the man spat at Mr Minns, and proceeded on the basis that the use of force by Mr Minns was unprovoked.
- [16]The more sympathetic outline of the facts in the joint submissions would partly explain why a more moderate set of sanctions is now proposed.
- [17]Of course the incidents involved stressful and dynamic situations, where the precise actions and motivations of different players are not readily ascertainable. Subject to one matter discussed below, I consider that the description of the facts in the joint submissions is reasonable and can properly be accepted. I find that the facts were as described in the joint submissions, subject to the matter below.
- [18]That matter concerns the third incident, and particularly Mr Minns’ motivation. A little more context should first be given. The search warrant related to drugs. The man was sitting naked and handcuffed on a toilet when Mr Minns dragged him to the floor. It is therefore plausible that Mr Minns thought at some point that the man could flush drugs down the toilet. However, given that other officers had ‘physical control’ of the man, and he was handcuffed, the use of force was not necessary.
- [19]I am not sure what is intended by the joint submission to the effect that the Deputy Commissioner determined Mr Minns’ motivation for grabbing the man to the floor to be Mr Minns’ concern that the man could be attempting to destroy evidence of drugs. If it is meant to summarise the Deputy Commissioner’s relevant finding in the decision under review, it is not accurate. The Deputy Commissioner found that the most likely explanation for the behaviour was that Mr Minns was ‘determined to inflict punishment on him for making threats’.[1] If the submission is intended to mean that Mr Minns used force solely for the purpose of preventing the flushing away of drugs, I do not accept that this provides a full explanation. The dragging of the man off the toilet even though he was under the control of other officers, followed by the striking of the man in the head, suggest a retaliatory motivation. While I can accept that the risk of the man flushing drugs crossed Mr Minns’ mind, and contributed to his behaviour, I find that the conduct was also motivated by a desire for retaliation.
Mr Minns’ background and general character
- [20]According to the joint submissions, Mr Minns was sworn in as a police officer on 21 January 2009, and progressed to the rank of Senior Constable on 21 January 2014. The joint submissions also draw attention to many positive references and good work notations. It is submitted that these show a generally good character, solid work ethic, and a preparedness to help people in need. The incidents in question are, according to several referees, out of character. There is a joint submission to the effect that Mr Minns has demonstrated remorse and insight, and is suitable to continue serving as a police officer.
- [21]I accept those submissions.
Legal framework
- [22]Improper conduct on the part of a police officer constitutes ‘misconduct’, and provides a basis for disciplinary action.[2]
- [23]Disciplinary proceedings exist to protect the public, uphold ethical standards, and promote and maintain public confidence.[3]
- [24]
- [25]Where parties have made a joint submission on sanction, QCAT should adopt the proposed sanction if it falls within the permissible range. This approach promotes efficiency. It is taken to enable parties to reach what they see as a sensible agreement with reasonable confidence that the agreement will be put into effect.[6]
Is a basis for disciplinary action established?
- [26]Police executing search warrants or arresting suspects are often dealing with dangerous, unpredictable, rude and uncooperative people. Force is typically necessary. Officers acting in the stresses of the moment do not have the benefit of hindsight. They face provocations which are not easy to brush off. These factors must be borne in mind in evaluating the conduct of police.
- [27]On the other hand, the community expects an appropriate standard of behaviour by police despite these pressures. Police are expected to be ‘restrained and professional’ despite provocation.[7] The community expects police powers to be used responsibly, and not abused by officers.
- [28]The men against whom Mr Minns used force were not model citizens. Their criminal histories and their behaviour at the time indicate that they were, to varying degrees, prone to violent and unpredictable behaviour. However, when the force was used, they were handcuffed and, practically, defenceless. A recurrent motivation in Mr Minns’ use of force in these situations was retaliation for provocation or uncooperative behaviour. The force was unnecessary. Its use was clearly improper. It amounted to misconduct by Mr Minns. A disciplinary ground is established.
Sanctions
- [29]The purpose of a sanction is not to punish Mr Minns but to protect the public especially by deterring future similar conduct by Mr Minns and other officers, to uphold proper ethical standards, and to promote and maintain public confidence in the police service. The public is entitled to see that improper conduct is condemned and that real consequences flow for an officer who has fallen well below expected standards.
- [30]In the decision under review, the Deputy Commissioner opted not to dismiss Mr Minns from the police service. He took into account Mr Minns’ otherwise very good service record, his assistance to friends and colleagues in need, and his work ethic. The Deputy Commissioner noted that the conduct in question seemed out of character. I similarly take those matters into account and agree that dismissal would be too harsh in this case.
- [31]Nonetheless, a substantial sanction is required because of the seriousness of the misconduct.
- [32]The parties in the joint submissions have referred to a number of comparable cases as indicative of the range of sanctions imposed. Like Mr Minns, the officers in these cases had otherwise good, or largely good, service records.
- [33]Crime and Corruption Commission v Swindells & Gardiner (‘Swindells’) involved conduct by Constable Gardiner that was rather similar to that of Mr Minns.[8] The conduct occurred across a similar period, though it involved a larger number of prisoners: six rather than three. Some but not all were in handcuffs. The sanction imposed by QCAT was dismissal, to be suspended for three years, plus a requirement to undergo psychological assessment and any recommended treatment. The effect of the orders was that if the officer refrained from any further misconduct during the three year period, and complied with the psychological condition, he could remain in the police service.
- [34]Belz v Assistant Commissioner Wilson involved a sergeant responding to a female prisoner’s self-harming behaviour by taking hold of her hair to make her move from the floor to a seat, and a little later from the cell to an adjacent area.[9] QCAT affirmed the decision under review which was to demote the officer from Sergeant pay point 3.3 to Senior Constable pay point 2.9 for 12 months.
- [35]McKenzie v Acting Assistant Commissioner Wright involved an off-duty sergeant restraining with his body a female ex-lover in the course of an argument, and then handcuffing her.[10] On appeal, QCAT demoted the officer from Sergeant pay point 3.5 to Senior Constable pay point 2.9 for 12 months.
- [36]Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor (No 2) involved Senior Constable Majewski responding to name-calling by restraining the person and dragging him to a police vehicle where his head hit the vehicle.[11] QCAT demoted the officer from Senior Constable pay point 2.3 to Senior Constable pay point 2.1 for six months, and deferred his eligibility to apply for pay point 2.4 for a further three months. The officer had already completed 61 hours of community service under the decision that QCAT was reviewing.
- [37]Kuhn v Deputy Commissioner of Police Brett Pointing involved an officer with 26 years’ experience grabbing a female prisoner to remove her from a cell and move her some distance to a padded cell, into which he pushed her.[12] This was done in response to verbal abuse by the prisoner. The sanctions as varied by QCAT were demotion from Senior Constable pay point 2.9 to Constable pay point 1.6 for six months, 50 hours of community service, and a requirement to participate in personal development programs.
- [38]Crime and Corruption Commission v Assistant Commissioner Dawson & Anor involved Constable Bayley,[13] who had only two years’ experience in the police service, striking a prisoner in the face in retaliation for being spat upon. QCAT demoted the officer from Constable pay point 1.4 to Constable pay point 1.2 for 12 months.
- [39]In light of these cases, the parties in the joint submissions argue that demotion for one year rather than five, together with the other requirements for training etc., would be appropriate. The parties also mention, and I accept, that because of the disciplinary process, Mr Minns has been subject to forfeiture or delay of salary increases since April 2015, and that he has been unable to earn overtime and certain allowances.
- [40]The parties also submit that the requirements imposed by the Deputy Commissioner for Mr Minns to complete a program about professionalism and ethical decision-making and to give training presentations would provide opportunities for Mr Minns to reflect on his behaviour. Further, the latter would help protect the public by providing guidance to more junior officers. I accept these submissions. Providing training presentations in which Mr Minns must discuss his own failings would be a humbling and probably difficult experience for him, but one which could be a very powerful tool for himself and other officers.
- [41]The facts and circumstances of Mr Minns’ case are not identical to any of the other cases considered above. There are differences in terms of frequency of the conduct, length of service, and so on. Probably the most analogous case is Swindells because of the repetition of the conduct. Mr Minns had a little more experience in the police service, and held a higher rank, but on the other hand he engaged in fewer incidents of misconduct. In a sense a more severe sanction was imposed in Swindells, in that the officer was liable to dismissal if he breached conditions. Suspended dismissal probably does send a stronger message, at least at first glance, than a combination of sanctions such as are suggested for Mr Minns. Nonetheless, the financial repercussions of demotion are significant over time, and the imposition of other conditions can bolster the deterrent and re-educative effects of the overall response.
- [42]In Mr Minns’ case, I consider that a five year deferral of advancement is unduly harsh in comparison with the other cases. A deferral for five years would have a very significant financial impact. Although the cases other than Swindells involved only single episodes, I note that demotion periods did not exceed 12 months.
- [43]Overall, I am satisfied that the set of sanctions suggested by the parties in their joint submissions is reasonable, balanced, and within the permissible range. Although a 12 month demotion is probably at the bottom end of the range, when the demotion is combined with the other sanctions, including the opportunity to return to only a lower rank of Senior Constable than previously held, the overall result is appropriate.
- [44]Accordingly, I will give effect to the proposal of the parties subject to some minor changes. The parties’ proposal involves reducing the deferral period from five years to one, but otherwise it largely adopts the substance of the Deputy Commissioner’s sanctions. The parties propose some relatively minor changes, for example to reflect the fact that Mr Minns is no longer serving on the Gold Coast. They have not included the requirement that the content of Mr Minns’ training presentations be approved, but I think it should be included. I will make that change, together with some adjustments to how the sanctions are expressed. The parties have proposed an order that ‘the Applicant’s review application, in so far as it relates to substantiation, is discontinued’. I do not consider that such an order is necessary, as the orders generally will conclude the review in any event.
Conclusion
- [45]For these reasons, I will set aside the Deputy Commissioner’s sanctions and substitute an amended set of sanctions.
Footnotes
[1] Hearing papers, p 21.
[2] Police Service Administration Act 1990 (Qld), s 1.4, s 7.4(2).
[3] Crime and Corruption Act 2001 (Qld), s 219A.
[4] Police Service Administration Act 1990 (Qld), s 7.4(3); Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c).
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
[6] Medical Board of Australia v Martin [2013] QCAT 376, [17]-[18]; Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37, [11].
[7] Crime and Corruption Commission v Assistant Commissioner Dawson & Anor [2017] QCAT 37, [17].
[8] [2010] QCAT 490.
[9] [2011] QCAT 632, and on appeal [2012] QCATA 185.
[10] [2011] QCAT 309.
[11] [2014] QCAT 488.
[12] [2017] QCAT 16.
[13] [2017] QCAT 37.