Conder v Baulch[2008] QSC 110

SUPREME COURT OF QUEENSLAND

[1] FRYBERG J:  I have before me an application under the Judicial Review Act 1991 (“the JRA”) to review a decision of Mr Baulch SC made when sitting as a Misconduct Tribunal under the Misconduct Tribunals Act 1997 (“the MTA”).  The applicant, Mr Conder, is the Deputy Commissioner of Police.  The respondent, Mr Harland, is a Superintendent of Police.  The proceedings relate to disciplinary action taken by Mr Conder against Mr Harland.

History of proceedings under review

[2] By a letter dated 30 May 2007 Mr Conder directed Mr Harland to appear before him for consideration of what action in relation to the interests of the discipline of the police service, if any, should be taken under the provisions of s 7.4(3) of the Police Service Administration Act 1990 and s 10 of the Police Service (Discipline) Regulations 1990 upon a consideration of two matters particularised in the letter.  The second of those matters is no longer relevant: Mr Conder found it was not substantiated.  The first matter asserted four instances of sexual harassment of a female sergeant by making remarks with sexual connotations with reference to her breasts in front of other police officers.  The evidence in support of that matter, consisting largely of transcripts of interviews by police officers with witnesses, was provided to Mr Harland and on 11 July he appeared before Mr Conder with his solicitor, pleaded not guilty and presented a comprehensive written submission in his own defence.  The hearing was adjourned to a date to be fixed to allow Mr Conder time to consider that submission.

[3] The hearing resumed on 31 August 2007.  Before the resumption Mr Conder's findings were reduced to writing (62 pages) and a copy provided to Mr Harland.  In them Mr Conder found the four instances in the first matter to be substantiated.  At the hearing, after dealing with some preliminary matters, Mr Conder orally addressed the issue of sanction.  He heard submissions from Mr Harland's solicitor and then proceeded to read into the record some observations which he considered relevant in determining the appropriate sanction.  The observations are essentially reasons for the sanction which Mr Conder intended to impose.  After further submissions by the solicitor Mr Conder adjourned to consider his decision.  When he resumed he ordered that Mr Harland be reduced in rank from Superintendent pay point 4 to Inspector top pay point with effect from the date of the decision.

[4] Mr Harland appealed to a Misconduct Tribunal pursuant to s 18 of the MTA against the findings substantiated in relation to each of the four instances in the first matter and in relation to the sanction imposed.  He maintained that position until 16 November when an outline of submissions was filed on his behalf abandoning all grounds of appeal save those relating to sanction.  In the meantime the appeal record was prepared.  It comprised eight volumes and contained no fewer than 2,700 pages of written material.[1]  The appeal came before Mr Baulch on 19 December 2007.  Both parties were represented by experienced counsel.  Mr Harland did not challenge the sanction itself but submitted that it ought to have been, and should now be, suspended.  Mr Conder supported the sanction imposed.  In an ex tempore decision the Tribunal accepted Mr Harland's submissions, allowed the appeal and varied the decision by deleting the provision setting the effectual date of the order and in lieu substituting an order that the sanction be suspended for a period of 12 months from the date of the original order.

[5] Mr Conder's application for review cited three grounds, all of which were abandoned at the outset of the hearing before me.  Counsel for Mr Conder, Mr Long SC, sought and was granted unopposed leave to amend the grounds to read as follows:

“1. That the decision involved  an error of law in that the First Respondent failed to give weight to the view of the original decision maker (the Applicant) and/or failed to recognize the paramountcy of the protective nature of the exercise of disciplinary jurisdiction, so that, accordingly, the exercise of the First Respondent's discretion in this respect miscarried (section 20(2)(f) of the Judicial Review Act 1991).”

Although expressed as one ground, it became clear in the course of the argument that it contained at least two grounds.  The first was based on an alleged failure to take a relevant consideration, the views of the original decision maker, into account.[2]  The second was based on an alleged misapplication of the correct criteria for determining a sanction in disciplinary proceedings[3].

The nature of Tribunal proceedings

[6] Proceedings in the appellate jurisdiction of the Tribunal are by way of rehearing on the evidence given in the proceeding before the original decision-maker.[4]  The Tribunal may give leave to adduce fresh, additional or substituted evidence on certain conditions, but that was not done in the present case.[5]  In exercising appellate jurisdiction the Tribunal has power to make the following orders:

“(a)confirm the decision appealed against;

(b)set aside the decision and substitute another decision;

(c)set aside the decision and return the matter to the original decision-maker with the directions the tribunal considers appropriate.”

The Tribunal did none of those things.  It purported to vary the original decision.  However no point is taken before me on that basis.  Presumably it would have been open to the Tribunal to set aside the whole of Mr Conder's decision and make the same decision, albeit suspended for 12 months.

[7] The nature of the appeal under s 18 was considered at some length by the Court of Appeal in Aldrich v Ross.[6]  In that case Thomas JA (with whom the other members of the court agreed) held that the appeal was not limited by the principles of House v The Queen[7], or by the need to identify some error that the original decision-maker had committed.  He held that the Tribunal was entrusted with making its own determination on the evidence before it whether or not new evidence was received.  He cited the words of Higgins J considered by the High Court in Re Coldham; ex parte Brideson (No 2)[8]:

“the appellant is entitled to have ... a re-hearing, a ‘review’ of the decision ... He is entitled to such judgment as I can bring to bear upon the question, independently of the Registrar, although, of course, I should attach a good deal of weight to the Registrar's view.”

Applying that approach to an appeal against severity of penalty, he held:

“For the reasons which have been given, the first duty of a Misconduct Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision-maker.  If the materials are inadequate, there is adequate power to obtain further information under ss 20 and 23(5).  If further evidence were received the proceeding would necessarily become a rehearing de novo.  If there is no serious contest as to the primary facts (as was essentially the position here), it is still necessary for the Misconduct Tribunal to make up its own mind on the facts and on the inferences to be drawn from them, though it might well see them the same way as the original decisionmaker if that person's view of the facts is ascertainable.”[9]

[8] In that case Thomas JA also discussed the weight to be accorded to the view of the original decision maker.  After referring to the benefits of merits review in the Tribunal by a person external to the force, he wrote:

“That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline.  It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force.”[10]

Upon that passage is founded Mr Conder's first ground of appeal.

Mr Conder's views

[9] It is unnecessary to set out the whole of Mr Conder's reasons for his decision.  It is however necessary to set out some of his findings at length, particularly where they are related to matters affecting the integrity and discipline of the police service as a whole.  I note first his findings as to what happened (these findings were not subsequently challenged):

“I’ve taken into account at that time the fact you were intoxicated and have little or no recollection of the events.  It is noted that you have taken positive steps to address any issues you have in relation to your consumption of alcohol.  I have found your conduct was improper in that you have, as I mentioned, sexually harassed a subordinate female officer.  The inappropriateness of such conduct is self-evident.

During a lighthearted kangaroo court conducted during the Mackay District OIC Conference you directed comments at Sergeant [A] referring to a medical procedure she had to enhance her breasts and requesting her to expose her breasts.  You then made further comments to Sergeant [A] concerning her breasts and requested her to expose her breasts to you whilst at the resort bar.

While the comments made are, of themselves, inappropriate, your actions are made worse by the circumstances in which they were made.  At the time of making the comments you were the District Officer of Mackay District and the comments were made to a junior officer who was under your control and command.  Sergeant [A] was the only female officer present and the comments were made before approximately 35 fellow male police officers.  There can be little doubt that Sergeant [A] was offended, humiliated and/or intimidated by your remarks and that an objective person should have anticipated that possibility.”

[10] He then pointed out that the conduct was not merely appalling workplace behaviour, but was unlawful behaviour.  By reference to Mr Harland's conduct of the proceedings before him (submissions not accepting that the conduct occurred, attempts to justify his position, attacks on the credibility of other officers, failure to acknowledge the nature of the conduct and take responsibility for his actions) he found that Mr Harland had a clear lack of understanding as to the quality of his conduct.[11]  The validity of that conclusion was not affected by the subsequent correction of Mr Conder’s earlier error in stating that Mr Harland had not apologised to the officer concerned.

[11] Mr Conder then proceeded to consider the conduct in relation to the duties of a senior officer, manager and leader.  He referred to its impact on the police service and on the public:

“The responsibility of management in relation to sexual management is expressly dealt with in section 3.2.7 of the QPS Human Resource Management Manual.  I will state relevant portions of that policy:

‘Supervisors at all levels are responsible for ensuring that appropriate standards of behaviour are maintained in that workplace.  An appropriate standard of behaviour in a workplace is one free of unlawful discrimination or sexual harassment.  In discharging their duties and responsibilities, managers and supervisors will need;

(i)      to be professional in their behaviour e.g. lead by example;

(ii)  ensure they are conversant with the service’s policy and procedures concerning resolution of unlawful discrimination or sexual harassment;

(vi)  monitor workplaces and satisfy themselves that workplace behaviour conforms to prescribed standards;

(vii)     ensures supervisors fulfil their responsibilities within the service policy and;

(viii)   promote the benefits of a workplace free of sexual harassment, unlawful discrimination.’

As a consequence of your actions you have not only engaged in sexual harassment, you have failed in your duties as a manager, leader and the most senior officer of the Mackay District, the District Officer for the Mackay District.  The position of District Officer is one of the most important, pivotal and influential roles within the Queensland Police Service.  The position description for a District Officer outlines the principal responsibilities as:

‘Providing leadership to district staff and manage district resources having regard to the organisational environment and the process of government to ensure the efficient and effective achievement of service goals.’

The QPS Operational Procedures Manual section 1.4.4, responsibilities of a District Officer relevantly states:

‘District officers are responsible for:

(i)  the efficient and effective management of policing their district/division;

(vi)  ensure that members under their control comply with service policy and demonstrate a behaviour consistent with service and community expectations.’

Put at its simplest you were the most senior officer in the police district.  In Mackay you had control of 20 police stations in a district which covered almost 70,000 square kilometres with an estimated population of 140,000.  In this role you were required to provide leadership to a staff of approximately 250 police officers and 57 civilian staff.  There can be no mistaking the fact as a leader you have failed.  Your treatment of a member of your staff has been improper.  Your conduct has offended, embarrassed and humiliated Sergeant [A] in front of her peers.

As a leader you conduct will have caused a division amongst members within the Mackay District and perhaps in other parts of the police service.  It is inevitable in an organisation such as the Queensland Police Service that there will be persons in support of you and others supportive of Sergeant [A].  Your conduct is the cause of this division.

Crucially, as the District Officer you are the fact of the Queensland Police Service.  You are the representative of the Commissioner of Police for the State of Queensland.  The importance of this role cannot be understated.  A District Officer will be the face of the police service in local media, calling upon the community for help, support and information.  A District Officer will interact with the community groups, business leaders, the private sector and senior leaders from our government agencies.  The senior officers for a police district will, by the very position they hold, be a respected leader of the community that the community will look to for guidance in times of trouble.

As the face of the Queensland Police Service, the highest standards of professionalism, conduct and leadership are expected and demanded.  Anything less than the highest standards have the real potential to cause severe embarrassment to and erode the public confidence in the Commissioner, district officers throughout Queensland and the police service as a whole.

In my view you have failed in your role as the representative of the Commissioner of the Queensland Police Service.”

That passage formed the foundation for a later passage which was challenged in and criticised by the Tribunal.

[12] He then considered the sanctions open in the circumstances of the case.  He observed first that harassment was serious misconduct and could warrant the ultimate sanction of dismissal.  After expanding on that possibility he turned to another: reduction in rank.  He said:

“Given the serious nature of your conduct, I am of the view that I should also consider whether a reduction in rank is an appropriate sanction.  In this regard, I have considered that in a police service of approximately 10,000 police officers you are currently one of approximately 50 officers at the lever of superintendent with only another 30 or so officers more senior in rank to you.  I therefore ask myself; is your conduct such that you should remain as one of the most senior police officers and leaders of the Queensland Police Service?

I am of the view that it is untenable for a superintendent of police to have engaged in sexual harassment of a subordinate and remain in such a high ranking position.  In making my final determination however, I have given very significant weight to your unblemished record, your distinguished service thus far and the enormous potential you have to provide a high level of service into the future.  I also fully acknowledge a reduction in rank results in serious financial implications relating to salary and superannuation and impact on your ability to progress to the higher ranks in the future.  I also note this misconduct arose from a one-off instance and not an ongoing conduct and in circumstances that you were affected by your consumption of alcohol.

The factors in your favour must, however, be weighted and balanced against the nature and quality of your conduct.  Sexual harassment is behaviour expressly prohibited by legislation and behaviour not tolerated by the Queensland Police Service and the community in general.  This conduct was directed at one of your staff, Jacinta [A], a sergeant of police, and the conduct was before a large group of her peers.

Although there has been no public scrutiny of your conduct, I have little doubt that your actions would be of general knowledge within the police service and, as mentioned earlier, as cause of division with the organisation.  Therefore, your conduct is responsible for the destabilisation within the organisation.  Conduct of this nature by a senior officer reflects poorly on the service and, in particular, the leadership.  Therefore it has the real potential, as mentioned earlier, to cause embarrassment to the Commissioner and the service.

Your conduct will give members of the public a right to question the professionalism, competence and integrity of the senior police administration of this State.  You have been unprofessional, you have failed to lead by example, you have failed to discharge your responsibilities as manager, supervisor and leader and you have failed to act as a representative of the Commissioner of Police.

In my deliberations I have also given consideration to my powers pursuant to section 5 of the Police Service Discipline Regulations 1990 which may include the power to suspend a sanction.  Ultimately I must decide whether the nature of your conduct was such that notwithstanding your previous good record and other mitigating facts the sanction should be suspended.

I have considered the comments of Mr R J Silver, Misconduct Tribunal member in Moria, TA1 of 2003, that the purpose of police misconduct proceedings is not compromised by considering the perspective given in the Court of Gillam in 1991 in relation to assessment of the value and effect of the suspension of a sanction.  Mr Silver stated that in Gillam’s case the Court said that it was wrong to regard a suspended sentence as no punishment at all.

From this case I also accept Mr Silver’s comments that an order to suspend a sanction does not necessarily impact negatively on valued principles such as deterrence, the efficiency and reputation of the police service, or the maintenance of standards.  In determining the appropriate sanction I have taken into account the purpose of discipline which was discussed in the High Court decision of Hardcastle versus Commissioner of Police, 53 ALR 593 at 597 and cited by Mr M J Halliday in the appeal of Sterling versus Aldridge.  The views of the High Court are incorporated in the human resource management manual where it states:

‘The purpose of discipline is to maintain public confidence in police officers and the service; maintain the self-esteem of members of the service; maintain the members’ confidence and the ability of the service to fulfil its statutory functions; maintain proper standards of conduct by police officers by specific and general deterrence principles; maintain the efficiency of a police service and protect the reputation of the police service:’”

Then, after hearing a further submission from Mr Harland’s solicitor, he made his order.

The Tribunal's decision in relation to the views of Mr Conder

[13] One aspect of the Tribunal's reasons for his decision may be peremptorily set aside.  At two separate points he stated that the only question he had to consider was whether or not Mr Conder should have suspended the sanction which he imposed.  Had he adopted that approach he would have been in error.  It was his task to determine what in his view the appropriate penalty ought to be, not to determine what Mr Conder should have done.  That is particularly so when it is realised that the power of suspension available to Mr Conder[12] was different from that of the Tribunal.[13]  The misstatements appeared to have been engendered by the language employed by counsel before the Tribunal.  In the event the Tribunal applied the correct approach and no reliance was placed on the two statements.

[14] The Tribunal began by making the necessary findings of fact as to the circumstances of the impugned conduct.  His findings were not materially different from those of Mr Conder.  He concluded those findings:

“The appellant did not improve his position by asserting on the one hand that he was so intoxicated as to have little or no recollection of the event, but then proceeding at times to suggest that the complainant might have been a willing participant and/or to encourage the continuance of the conversations.

In the upshot, I am now asked to consider only one matter and that is only whether or not the respondent should have, in the proper exercise of his discretion, suspended the sanction imposed.”

[15] He then turned to the issue which forms the first ground of review:

“I am mindful of the exhortation found in Aldrich v. Ross 2001 volume 2 of the Queensland Law Reports [325], which reminds me that I should give weight to the view of the original decision-maker, whoever that may be.  The discretion granted to the Misconduct Tribunal relate to section 28 of the Act is an unfetted one, as reinforced by the Court of Appeal in a decision in Spencer v. Volsch 2004 QCA [234].

When dealing with the question of suspension, the respondent did mention a number of the relevant matters, and mentioned a decision of this tribunal in Morrya.  It seems that he was, for a time at least, addressing all of the relevant issues.  He went, however, to say this:

‘Given the serious nature of your conduct, I’m of the view that I should consider whether a reduction in rank is an appropriate sanction.’”

Then he quoted that part of Mr Conder's reasons shaded in the quotation above[14] and continued:

“It seems to me that it is very difficult why the words, ‘I am of the view that it is untenable for a superintendent of police to have engaged in sexual harassment of a subordinate and remain in such a high-ranking position were included’, unless they reflected the respondent’s view that the rank that the appellant occupied at the time precluded the suspension of an penalty.

In my view, that cannot be the case and I am of the view that the respondent fell into the same sort of error as was identified in the case of Spencer and Volsch that I have referred to.

…

Seniority, in my view, is a relevant matter.  But alone, it’s difficult to see it as something which restricts the range of penalties available without falling into the same error as I think the respondent did.”

I am satisfied that those findings were made in response to a submission by counsel for Mr Harland that the first sentence of the shaded passage was a general statement, not one specific to the facts of the case; that thereby Mr Conder fettered his discretion on the question of sanction;[15] and that in consequence the Tribunal should give less weight than it otherwise might to his view of the matter.[16]

[16] The Tribunal then proceeded to consider the merits of the appeal without any further reference to the views of Mr Conder in relation to the discipline, unity and morale of the police service, its interaction with community groups, business leaders and government agencies and the effect on public confidence in the service and its senior officers.  He made little if any reference to the substance of those views and none to the weight which should be accorded to them as the views of the Deputy Commissioner of Police.  The substance of those views was important; it went to the very purpose of the proceedings. In Aldridge, Thomas JA wrote:

“The purpose of misconduct and discipline proceedings within the Police force has been identified in a number of decisions including Hardcastle v Commissioner of Police, Police Service Board v Morris and Re Bowen. The protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties are the primary purposes of such proceedings.”[17]

The fact that the views were those of the Deputy Commissioner was relevant for the reasons already given.

[17] On behalf of Mr Harland, Mr Hinson SC submitted that nonetheless it could not be assumed that these views had been overlooked, having regard to the explicit reference to Aldridge.  I cannot accept that submission.  This is not a case where an unimportant matter was inadvertently omitted from ex tempore reasons for judgment.  The reasons were not short and the point was important.  Nor is it a matter of assuming that the views were overlooked.  Not only did the Tribunal not refer to these matters, he gave reasons why he disregarded them.

[18] Were those reasons valid?  The answer to that question depends upon one's reading of what was said by Mr Conder.  In my judgment, when the shaded passage is read in its whole context it is clear that Mr Conder was stating the sanction which he proposed to impose and then stating his reasons for imposing it and for doing so without any suspension of it.  No criticism can properly be made of that course.  There is no rule which says the reasons for a decision cannot first set out the decision and then the grounds for it; and a decision maker is not taken to have fettered his discretion by doing so.  The first shaded sentence in my judgment clearly related to the position of Mr Harland.  It was not a general statement of policy from out of the blue, imported to control the outcome of the decision.  Mr Conder was not suggesting that his discretion was limited in any way.  Despite the Tribunal's enthusiasm for the decision of the Court of Appeal in Spencer v Baulch[18] (he drew it to counsel's attention before they began their submissions),[19] that case in no way impugned Mr Conder's decision.  It follows that the Tribunal's reasons for not having regard to Mr Conder's views cannot be upheld.

[19] In my judgment the Tribunal’s decision was flawed because he failed to take relevant considerations into account.  Those considerations were important, touching on the very purpose of the proceedings.  Had they been taken into account, the Tribunal's decision might well have been different.

[20] That is sufficient to dispose of the application.  I need not delay this decision in order to analyse the remainder of the Tribunal's reasons and determine whether, read as a whole they failed to recognize the paramountcy of the protective nature of the exercise of disciplinary jurisdiction, nor need I consider whether as a matter of law there is any such paramount consideration.[20]  As presently advised I am inclined to think that no genuine point of law is raised by this ground and that it is at root concerned with the Tribunal's evaluation of the facts.

Order

[21] The operative part of the order made by the Tribunal was:

“that the decision [given by Mr Conder] be varied by deleting the sentence, ‘this sanction is to take effect as of 4 p.m. on today, Friday the 31st of August 2007’, and substituting in its place, ‘this sanction will be suspended for a period of 12 months from this date.”

The expression “from this date” is apparently ambiguous.  Mr Conder has taken it to mean as from 19 December 2007; that is apparent from para 2 of his application to this Court.  I would have thought that the substitution of those words in the original order would have meant that the suspension took effect from the date of the original order.  In any event, it would in my judgment be sufficient if the decision of the Tribunal were quashed.  Such an order would operate on the whole of the Tribunal's order ab initio.  To ensure there is no ambiguity I shall risk tautology by quashing it with effect from 19 December 2007.

[22] The order of the court will be:

1. Quash the decision of the Misconduct Tribunal made on 19 December 2007 with effect from that date. 
2. Refer the matter to the Misconduct Tribunal for further consideration in accordance with these reasons.
3. Direct that the Tribunal consider whether the matter should be reheard by a differently constituted Tribunal.

[23] I shall hear the parties on costs.