Bill Layt v Chief Superintendent Glenn Horton
[2022] QCAT 227
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- Unreported Judgment
- Bill Layt v Chief Superintendent Glenn Horton[2022] QCAT 227
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Bill Layt v Chief Superintendent Glenn Horton[2022] QCAT 227
Bill Layt v Chief Superintendent Glenn Horton[2022] QCAT 227
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Bill Layt v Chief Superintendent Glenn Horton and Anor [2022] QCAT 227 |
PARTIES: | Bill Layt (applicant) v Chief Superintendent Glenn Horton (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) |
APPLICATION NO/S: | OCR214-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 22 June 2022 |
HEARING DATE: | 8 June 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
ORDERS: | The decision under review is confirmed. |
CATCHWORDS: | POLICE – EXTERNAL OVERSIGHT – where police officer de-activated body-worn camera and failed to record verbal caution administered to fellow officer for failing to stop at a stop sign – where misconduct not contested – where applicant sought review of sanction – whether sanction impermissibly took into account factual findings outside the particulars of the charge – whether mere contextual findings – perceptions relevant to public and officer confidence in police Crime and Corruption Act 2001 (Qld), s 219A, s 219O, s 219P, s 219Q Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20 Aldrich v Ross (2001) 2 Qd R 235 Crime & Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 Lee v Crime and Corruption Commission & Anor [2014] QCATA 326 |
APPEARANCES & REPRESENTATION: | |
Applicant: | T E Schmidt, Counsel (direct brief) |
First respondent: | R Fogarty, A/Senior Legal Officer, Queensland Police Service Legal Unit |
Second respondent: | J Rodriguez, Principal Legal Officer |
REASONS FOR DECISION
- [1]In the course of his duties as a police officer, and in the role of a Field Training Officer accompanied by a First Year Constable (“FYC”), the applicant, Senior Constable Layt, intercepted a vehicle for failing to come to a complete stop at a stop sign.
- [2]Upon becoming aware that the driver of the vehicle was an off-duty police officer, Senior Constable Layt de-activated his body-worn camera (“BWC”) and directed the FYC to do the same. He then administered a verbal warning to the driver but, contrary to procedure, failed to formally record the warning in the Queensland Police Service (“QPS”) computer system.
- [3]The applicant does not dispute that his conduct in de-activating his BWC, directing the FYC to also do so, and not formally recording the warning, amounted to misconduct. However, he seeks review of the Deputy Commissioner’s decision as to the sanction for the misconduct.
The sanction
- [4]The sanction imposed by the Deputy Commissioner was that the applicant be demoted from Senior Constable pay point 2.10 to Constable pay point 1.6 for 6 months, suspended after 4 months conditional upon the applicant not committing any grounds for discipline in the 6-month period from the date of the sanction. As a consequence of the suspension, after 4 months the applicant would return to Senior Constable pay point 2.10 if the condition is met.
- [5]I was advised by Mr Schmidt, who appeared as counsel for the applicant, that the difference in the applicant’s base pay for the 4-month period, as a consequence of the demotion, would be in the order of $7,500. However, this would not take into account the additional impact of the temporary demotion upon the applicant’s superannuation entitlements or higher rates of pay for overtime or night work. On the other hand, the after-tax financial effect on the applicant would be less than the difference in gross pay.
- [6]Mr Schmidt submitted that this sanction is excessive. The appropriate sanction, Mr Schmidt submitted, was a reprimand or a small fine. In response to my query, Mr Schmidt said that by a small fine he meant a fine in the order of two or three penalty units. That would equate to a fine in the approximate range of $275 to $414.
- [7]Both the Deputy Commissioner, and the Crime and Corruption Commission which exercised its right to intervene in the review, submitted that the sanction imposed by the Deputy Commissioner should be maintained.
Principles to be applied
- [8]The role of the Tribunal is to hear and decide the review by way of a fresh hearing on the merits, based on the evidence that was before the Deputy Commissioner, to produce the correct and preferable decision.[1]
- [9]In other words, the Tribunal’s role is not to review the Deputy Commissioner’s decision for error, but to make its own decision on the available evidence. However:
that is not to say that considerable respect should not be paid to the perceptions of the [Deputy] Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the . . . Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.[2]
- [10]The Tribunal must bear in mind the objects of the police disciplinary system. These are to protect the public; to uphold ethical standards within the QPS; and, importantly in this case, to promote and maintain public confidence in the QPS.[3] It is these objects, rather than punishment of the officer, which must inform decisions on sanctions. In appropriate cases, that may require considerations of both personal and general deterrence.
- [11]In making a decision on sanction, it is impermissible to make findings of fact that would stray beyond the ambit of the substantiated misconduct if that would amount to rendering the applicant liable for a sanction for conduct that is additional to or more serious than the substantiated conduct. However, the Tribunal may take into account contextual circumstances relating to the substantiated conduct which may be relevant to either the gravity of the misconduct or mitigation.[4]
Consideration
Impermissible findings of fact?
- [12]Mr Schmidt submitted that the Deputy Commissioner wrongly took into account the potential for reputational harm to the QPS arising from providing favourable treatment to a fellow officer. Mr Schmidt went on to submit that the inference of preferential treatment was not particularised and could not be taken into account. Rather, the conduct to be sanctioned is confined to the particularised conduct of the applicant turning off his BWC; directing his FYC to do the same; and failing to record that a caution had been administered. Mr Schmidt also pointed out that the applicant had issued cautions to three other motorists that morning for the same conduct of failing to stop at the stop sign. His treatment of the off-duty police officer was the same, not preferential.
- [13]Other than in one respect, even if the Deputy Commissioner erred in the way the applicant submits, that is irrelevant to the Tribunal’s task provided the Tribunal does not make the same error. That is because the Tribunal makes its own decision on the merits. The potentially relevant respect is that, as Mr Schmidt submitted, the force of the principle that the Tribunal should give due respect to the Deputy Commissioner’s judgement, would be undermined if that judgement is based on or influenced by a flawed premise.
- [14]However, the Deputy Commissioner accepts that the applicant did not seek to bestow a pecuniary benefit on, or avoid a financial cost to, the off-duty officer. The applicant himself states in submissions that his reason for turning off the BWC “was to prevent embarrassment to the officer should the footage of the applicant vigorously cautioning him be seen by other work colleagues”. The applicant went on to submit that “[t]here is simply no evidence the camera was turned off for any other purpose, let alone an improper one”.[5]
- [15]I approach my consideration of this matter on the footing that, apart from avoiding potential embarrassment, the applicant did not seek to confer any financial or other benefit on the off-duty officer. However, it is not so much the presence or absence of improper purpose, but rather the risk of public perceptions, that assumes greater significance in this case.
Public confidence in the QPS
- [16]Mr Schmidt sought to characterise the applicant’s conduct as of a procedural nature and at the lower end of the scale of misconduct. As already noted, I accept that the applicant did seek to confer a benefit on the driver other than the avoidance of embarrassment. Additionally, it may well be the case that the applicant acted impulsively in de-activating the recording when he recognised the driver as a colleague. Indeed, the driver, in a recorded interview, speculated that the applicant appeared to “panic”.[6]
- [17]Be that as it may, in my view the object of maintaining public confidence in the QPS looms large in this matter. The lack of transparency and accountability in de-activating the BWC and not recording the caution, contrary to police policy and usual practice and for no other reason than that the interaction being recorded was with an off-duty officer, creates a strong risk of public perception of preferential treatment and improper conduct.
- [18]That risk is an inevitable consequence of, and flows directly from, the applicant’s conduct. That such perceptions would undermine public confidence in the QPS is obvious and should have been obvious to an experienced police officer. Accordingly, I consider the misconduct to be more serious than the applicant’s submissions suggest.
- [19]Further, the risk of adverse impact upon public (and officer) confidence in the QPS is exacerbated by the applicant’s direction to the FYC. The applicant was responsible for training the FYC which, in an on-the-job context, includes modelling appropriate professional behaviour. Instead, the applicant modelled inappropriate behaviour and caused the FYO to follow the applicant’s own inappropriate conduct.
- [20]That conduct both put the FYO in a difficult position, at some apparent distress, and was entirely contrary to the purpose of more senior officers undertaking training and mentoring of the next generation of officers. The potential for adverse impact upon both public and officer confidence in the QPS again is an obvious and inevitable consequence of the conduct.
Remorse and insight
- [21]The Deputy Commissioner submitted that, although the applicant co-operated with the disciplinary process, he did not demonstrate significant insight into the seriousness of his misconduct.
- [22]In response to the Deputy Commissioner’s statement that there had been no articulation by the applicant of the impact his conduct may have on the FYC or the negative perception if it became known in the wider community, Mr Schmidt submitted:
Respectfully, there could be no such articulation by the applicant in circumstances where the negative perception (on the basis that a benefit was being conveyed) was not a charged act. The applicant cooperated fully with the discipline process by admitting unreservedly the misconduct as charged and particularised by the first respondent. He could not, and did not admit to uncharged acts.[7]
- [23]I am, with respect, unable to accept this submission. As already noted, the potential for adverse impact on the FYC and public perceptions of ethical conduct in the QPS is an inevitable consequence of the conduct.
- [24]Nevertheless, I take into account in the applicant’s favour that he cooperated with the disciplinary process. Although it is disappointing that the applicant did not overtly demonstrate insight into the seriousness of his conduct, in my view care needs to be taken not to give excessive weight to inferences of lack of insight where an applicant, on legal advice, challenges the basis of a sanction. Further, the references provided by professional colleagues, mentioned below, speak to the applicant’s remorse.
Referee reports
- [25]The applicant produced character references from seven serving police officers, each with many years of experience, who have served with the applicant in a variety of challenging contexts. The referees speak of a dedicated, diligent and skilled officer who conducts himself with integrity and professionalism and a valued community member who, having confronted his own personal challenges and despite the demands of his vocation, volunteers his time in the community.
- [26]Each referee was aware of the disciplinary charges against the applicant. Their comments tend to confirm the impression that the applicant’s conduct may have been impulsive, and was out of character.
Conclusion
- [27]Being a police officer is a demanding vocation. It is the daily lot of police officers to be exposed to circumstances that most members of the community would recoil from and are privileged to never have to confront.
- [28]It is also largely a thankless task. I expect most of us barely give a thought from day to day to our police, other than if we interact with them as they protect the public from the dangers of poor motoring or on thankfully rare occasions if we need to gratefully invoke their intervention, dedication and courage. As a community, we owe the QPS a debt of gratitude, none more so than officers, such as the applicant, who protect us, day-in, day-out, with little recognition, but with professionalism and dedication.
- [29]Against that backdrop, it is understandable that the Senior Constable Layt may feel the sanction in this case is unfair. It is a substantial penalty, in monetary terms, added to which is the embarrassment of temporary demotion.
- [30]In the end, though, as recognised in the stated objects of the disciplinary regime, the effectiveness of the QPS depends upon public confidence in the service. Actions which undermine public confidence must be treated seriously and a clear message sent both to other members of the QPS and to the public that such conduct is not, and will not, be accepted.
- [31]The conduct of the applicant, although out of character for an apparently diligent and professional officer, is clearly in that category. Regardless of his actual motive, the potential for adverse impact on public perceptions and confidence in the QPS, particularly from the de-activating of the BWC when he became aware that the offending driver was a police officer colleague, and directing a junior officer to do the same, must attract a sanction that sends an appropriate message to the other officers and the community.
- [32]Weighing up all of the considerations outlined in these reasons, I am persuaded that the sanction imposed by the Deputy Commissioner achieves the appropriate balance. A permanent demotion or dismissal would be too severe in the circumstances.[8] Anything less would not acknowledge the potentially serious consequences of the conduct and, in particular, would not provide the necessary general deterrence nor provide the public with confidence that such conduct is not accepted. A mere reprimand or small fine, as sought by the applicant, would certainly not do so; rather, it would downplay the importance of police conducting themselves transparently, with accountability, and without actual or apparent favour.
- [33]It follows that the decision under review must be confirmed.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17-20; Crime and Corruption Act 2001 (Qld), ss 219O-209Q.
[2] Aldrich v Ross (2001) 2 Qd R 235, [43].
[3] Crime and Corruption Act 2001 (Qld), s 219A.
[4] Lee v Crime and Corruption Commission & Anor [2014] QCATA 326, [109]-[117]; Crime & Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510, [41]-[45].
[5] Applicant’s submissions, [25].
[6] Audio recording of interview with officer.
[7] Applicant’s submissions, [22].
[8] My attention was drawn to other decisions on sanction, but it was acknowledged that the circumstances of those cases were more serious. I found such cases, necessarily dealing with different factual matrices, of limited assistance.