Mazza v Stewart[2017] QSC 43

SUPREME COURT OF QUEENSLAND

1. The applicant makes application for a statutory order of review and order of review of the decision of the second respondent, made on 25 November 2016 to suspend him from duty as a police officer and the decision, made on 12 December 2016, that the applicant was not entitled to his salary and allowances whilst suspended from duty. 
2. The sole ground of review relied upon in respect of each decision is that the decisions of the second respondent were unreasonable.  At issue is whether the decisions were so unreasonable that no reasonable person could reach that decision. 

Background

3. The applicant is a constable employed by the Queensland Police Service.  Prior to the incident the subject of these decisions, he had an exemplary traffic and disciplinary history. 
4. The first respondent is the Commissioner of Police.  The second respondent is the first respondent’s delegate for the purpose of making decisions in relation to the suspension of the applicant from duty as a police officer and whether the applicant was entitled to his salary and allowances whilst suspended. 
5. The decisions made by the second respondent, as delegate for the first respondent, arose in the following circumstances:
   1. On 5 May 2014, the applicant was performing traffic duties attached to the Roma Road Policing Unit.  In the course of those duties he detected a speeding driver travelling in the opposite direction along a country road. 
   2. The applicant activated his lights and executed a U-turn.  A motorcycle travelling behind him took evasive action.  The rider lost control.  He suffered serious head and other injuries.  His pillion passenger was fatally injured and died at the scene. 
   3. On 20 April 2015 the applicant was charged with an offence of dangerous operation of a motor vehicle causing death and an offence of dangerous operation of a motor vehicle causing grievous bodily harm.  On that date, the applicant was stood down from duty.  He remained a member of the service, completing administrative duties.
   4. On 18 May 2015, the applicant ceased those administrative duties having commenced stress leave.  The applicant remained on stress leave until the decisions except for a short period in July 2015. 
   5. On 30 March 2016, the applicant was committed for trial to the District Court of Queensland on the offence of dangerous operation of a motor vehicle causing death and dangerous operation of a motor vehicle causing grievous bodily harm. 
   6. An indictment was presented in respect of the offences on 1 July 2016.  That indictment was the subject of trial by jury in the District Court at Roma commencing 21 November 2016.  On 24 November 2016, the jury found the applicant guilty of both offences. 
   7. On 24 November 2016, the applicant was sentenced to two years imprisonment, suspended forthwith for an operational period of two years.  The applicant’s drivers licence was disqualified for a period of six months.
   8. On 5 December 2016, the applicant filed a notice of appeal against his conviction.  The grounds of appeal are that the verdict was unreasonable and there had been a miscarriage of justice by reason of the jury having breached its duty and not complied with the directions of the trial judge.  That latter ground relies on evidence that the bailiff, whilst cleaning the jury room after the jury had been discharged, found papers consistent with a juror or jurors having undertaken internet searches in relation to serious traffic offences and the definition of beyond reasonable doubt. 

First Decision

6. On 25 November 2016, the second respondent issued the applicant with a suspension notice.  In doing so, the second respondent noted the applicant had, on 24 November 2016, been convicted of one count of dangerous operation of a motor vehicle causing death and one count of dangerous operation of a motor vehicle causing grievous bodily harm and sentenced to two years imprisonment, wholly suspended.
7. The second respondent also noted the contents of an attached executive briefing note which set out the background circumstances of the fatal crash.  Those circumstances included that the incident had occurred on a straight section of road, signed 100km per hour, in circumstances where the applicant, having formed an intention to intercept a vehicle travelling in the opposite direction, activated the lights on a marked police vehicle and executed a U-turn when there was travelling immediately behind a motorcycle with rider and pillion passenger.  As a consequence of the need to take evasive action, both the rider and pillion passenger were thrown from the motorcycle, resulting in the death of the pillion passenger and serious injuries for the male rider.  The briefing note recorded there was no actual collision between the police vehicle and the motorcycle.
8. The briefing note further recorded that the applicant had declined an offer to undergo an interview with investigating police but had participated in a discipline interview.  In that process the applicant was recorded as stating he had checked his mirrors before commencing to make the U-turn and only noticed a motorcycle after he heard the sound of locking brakes and the motorcycle had passed him.  He then heard a crash and rendered assistance to the rider and the pillion passenger. 
9. After recording the versions of witnesses and containing an update on the charging and subsequent committing for trial of the applicant, the briefing note recorded that the applicant had been found guilty by a jury on 24 November 2016 of both counts and had been sentenced to two years imprisonment wholly suspended for an operational period of two years.  The briefing note contained a recommendation that the applicant be suspended from duty pending finalisation of the disciplinary investigation. 
10. The second respondent’s decision recorded that having considered that attached briefing note, the second respondent was satisfied there were reasonable grounds upon which to take disciplinary action against the applicant, and concluded:

“After considering relevant factors, in particular the serious nature of the alleged conduct, the direct conflict between the alleged conduct and your functions as a police officer and the need to protect the reputation of the service, I have decided to take suspension action under the Act. 

Accordingly, under Sections 4.10 and 6.1 of the Act, and the Human Resource Delegations and Approval Authorities, you are suspended from duty without the loss of salary and allowances.  This suspension will continue until revoked.”

11. The second respondent’s decision went on to record that given the above relevant factors, the second respondent intended to decide whether to suspend the applicant from duty without salary and allowances.  The applicant was given an opportunity to respond in writing to show cause why he should not be suspended from duty without salary and allowances. 

Second decision

12. After receipt of that decision, the applicant made written submissions in response to the show cause notice.  The applicant submitted he ought not to be suspended without salary and allowances and should remain stood down.  In making that submission the applicant noted an appeal had been filed in respect of the conviction; that delay and unfairness already suffered by the applicant would be exacerbated by a suspension without pay; that the nature of the conviction did not diminish from the applicant’s standing as a police officer; that deprivation of his salary and allowances would have serious consequences for him and his family in circumstances where the applicant has an otherwise unblemished career and traffic history and there was no apparent reason why an interim deprivation of salary and allowances pending a disciplinary hearing was necessary to protect the interests of the Queensland Police Service. 
13. On 12 December 2016, the second respondent advised the applicant he had determined the applicant’s suspension from duty should be without salary and allowances.  The notice to the applicant of the second decision stated:

“after considering your submissions and all relevant factors, in particular the serious nature of the alleged conduct, the direct conflict between the alleged conduct and your functions as a police officer and the need to protect the reputation of the service, I have determined you should be suspended from duty without remuneration on the basis that:

1. It appears to me on reasonable grounds that you are liable for disciplinary action under Section 7.4 of the Act;

2. Suspension without salary and allowances is not an action which is taken lightly or exercised in an arbitrary fashion.  As such, I have given this matter careful consideration before making any determination;

3. Pursuant to Section 4.8 of the Act, the Commissioner has the responsibility for the efficient and proper administration, management and functioning of the police service in accordance with law.  The protection of the reputation of the police service in maintaining community confidence are essential factors in our ability to fulfil statutory functions.  Subsequently, any action I take in this matter is after careful consideration of the effect, not only on yourself, but also on the police service as a whole and the perceptions of the general public;
4. You were a member of the Road Policing Command which has a central role in the services objective to make the community safer, including reducing road trauma.  Your conviction for dangerous operation of a motor vehicle causing death and grievous bodily harm is in direct conflict with this objective.  I note also, that you are subject to a suspended term of imprisonment;
5. This conviction relates to an incident which occurred while you were on duty and I find that there is an inevitable effect on your standing as a police officer as well as damage to the reputation of the service;
6. You were stood down from official duty after being charged in April 2015 and subsequently took an extended period of stress leave until you were suspended on 25 November 2016;
7. Your submissions identified the serious consequences suspension without salary and allowances has for your family, however, I must balance that with the interests of the public and the reputation of the service.  Continuing your salary and allowances after being convicted of such a serious offence, which occurred on duty, is not in the public interest and inconsistent with maintaining public confidence in the Queensland Police Service and its members;
8. The conduct, if proven in a disciplinary proceeding, would be grounds to consider your dismissal from the service. 

Accordingly, under Sections 4.10, 6.1 and 6.3 of the Act, and the Human Resource Delegations and Authorities Schedule, you are suspended from duty without salary and allowances.  This suspension will continue until revoked.”

Statutory provisions

14. The Police Service Administration Act 1990 provides:

“Part 6Standing down and suspension

6.1Power to stand down and suspend

1. If—

1. it appears to the commissioner, on reasonable grounds that—

1. an officer is liable to be dealt with for corrupt conduct; or

2. an officer is liable to disciplinary action under section 7.4; or

3. the efficient and proper discharge of the prescribed responsibility might be prejudiced, if the officer’s employment is continued; or

2. an officer is charged with an indictable offence; or

3. an officer is unfit for reasons of health to such an extent that the officer should not be subject to the duties of a constable;

the commissioner may—

4. stand down the officer from duty as an officer and direct the person stood down to perform such duties as the commissioner thinks fit; or

5. suspend the officer from duty.

2. The commissioner may at any time revoke a standing down or suspension imposed under subsection (1).

6.2Salary entitlement if stood down

An officer who is stood down from duty under section 6.1 is entitled to be paid salary and allowances at the rate at which the officer would have received salary and allowances had the standing down not occurred.

6.3Salary entitlement if suspended

1. An officer suspended from duty under section 6.1 is entitled to be paid salary and allowances at the rate at which the officer would have received salary and allowances had the suspension not occurred, unless the commissioner otherwise determines in a particular case.

(1A)Except that an officer suspended under section 6.1(1)(c) is to be entitled to the salary and allowances to which that officer was previously entitled.

2. An officer suspended from duty who is not entitled to be paid salary during the suspension—

1. may receive and retain salary, wages, fees or other remuneration from any lawful source during the suspension, unless the commissioner otherwise determines in a particular case; and

2. if the officer resumes duty as an officer on the revocation of the suspension—is entitled to receive a sum equivalent to the amount of salary and allowances the officer would have received had the suspension not occurred, reduced by a sum equivalent to the amount of salary, wages, fees and other remuneration to which the officer became entitled from any other source during the suspension, unless the commissioner otherwise determines in a particular case.

3. An officer suspended from duty without salary who enters into employment whereby the officer will become entitled to salary, wages, fees or other remuneration is to inform the commissioner immediately of the particulars of the employment.

4. An officer suspended from duty who during the suspension becomes entitled to salary, wages, fees or other remuneration from a source incompatible with assessment of the officer as a fit and proper person to be an officer and who fails to satisfy the commissioner that there are reasonable grounds for not dismissing the officer, may be dismissed from the service.”

Applicable principles

15. Legal unreasonableness is only established if the decision in question is shown to be so unreasonable that no reasonable authority could have come to it.^[1]  Legal unreasonableness requires a high threshold.  It is not met simply by a court considering the decision unreasonable in that the court would have reached a different decision.  Reasonable decision makers may properly reach different decisions. 
16. In assessing the boundaries of legal unreasonableness, it is necessary to assess a decision by reference to the scope and purpose of the statutory power and its real object.^[2]  If the result is, upon the facts, unreasonable or plainly unjust, an inference of unreasonableness may properly be drawn from those facts and the matters falling for consideration in the exercise of the statutory power.  Legal unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.^[3] 
17. Where a decision-maker’s reasons provide an evident and intelligible justification for the decision, legal unreasonableness is unlikely to be established by an applicant.^[4]  However, if the decision maker may be regarded “by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision maker has been unreasonable in a legal sense”.^[5] 
18. Legal unreasonableness is not a means by which a court can review the merits of the decision or substituted its own view as to how the discretion should be exercised by a decision-maker.^[6]  In Minister for Immigration and Border Protection v Stretton, Allsop CJ observed:^[7]

“This concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulae …  The plurality’s discussion of unreasonableness in Li should be read as a whole – as a discussion of the sources and lineage of the concept, of the limits of the concept of reasonableness given the supervisory role of the courts, of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits, of the various ways the concept has been described, of the relationship between unreasonableness derived from a specific error and unreasonableness from a logical or rational reasoning, of the place of proportionality or disproportion in the evaluation, of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion.” (citations omitted)

Applicant’s submissions

19. The applicant submits that in circumstances where the Act affords a range of possible actions, there is a requirement that the power to suspend an officer without salary and allowances only be exercised where good reason is shown for that drastic step.  The discretion afforded by the Act cannot be exercised in an arbitrary or fanciful manner.  It must be exercised having regard to the subject matter, scope and purpose of the statutory scheme.  A failure to do so will constitute an improper exercise of power as it constitutes a decision no reasonable person could reasonably conclude is necessary having regard to the nature, scope and objects of the statutory scheme.
20. The applicant submits the decisions to suspend him, without salary and allowances, are unreasonable in a legal sense having regard to the devastating financial impact of the decision on the applicant and his dependents; the considerable toll already suffered by the applicant personally as well as to his career reputation and family; the applicant’s lack of adverse disciplinary history or traffic history and the circumstances of the offences which were consistent with momentary inattention or misjudgment rather than a deliberate course of dangerous driving.  There was recognised at sentence good evidence of regret and remorse and of the psychological effect of the incident on the applicant himself.
21. The applicant submits the decisions of the second defendant were so unreasonable that no reasonable person could reasonably conclude they were necessary in all the circumstances.  The applicant had been stood down since April 2015.  The applicant was therefore not exercising the powers of a police officer at the time of the first decision.  Whilst the applicant was subsequently convicted of a criminal offence, the circumstances of that conviction were considered by the sentencing judge to be so rare they justified a wholly suspended term of imprisonment.  Those circumstances meant nothing had changed from the previous discretionary decision to stand the applicant down rather than suspend the applicant.  The mere fact of a conviction of a criminal charge did not justify the exercise of the discretionary power to suspend the applicant from duty. 
22. The applicant further submits the circumstances of the offences provided no reasonable basis to find that any suspension should be without salary and allowances.  The relevant question is whether the conduct behind the conviction renders the applicant no longer an appropriate person for membership of the Queensland Police Service.  The circumstances of these offences did not support a reasonable conclusion the applicant was no longer an appropriate candidate for membership of the Queensland Police Service.  The conduct of his driving, as opposed to the consequences of the driving, did not support a reasonable conclusion there was a direct conflict between the applicant’s conduct and his functions as a police officer.  No reasonable person could reasonably conclude that suspending the applicant without salary and allowances was necessary in order to protect the reputation of the service. 

Respondent’s submissions

23. The first and second respondents submit there is no basis to conclude that either decision was an improper exercise of the power in that the decision was so unreasonable no reasonable person could so exercise that power.  The applicant had been convicted by a jury of two serious criminal offences which resulted in the imposition of terms of imprisonment, albeit wholly suspended.  That fact alone supported the second respondents’ conclusion that it appeared to him on reasonable grounds the applicant was liable to disciplinary action under the Act and that the conduct, if proven, would be grounds to consider his dismissal from the service. 
24. In coming to that conclusion, the second respondent was not obliged to look behind the conviction itself to the full circumstances of the alleged conduct and the overall character of the applicant.  Those matters, whilst relevant in the consideration overall, do not have to outweigh other considerations such as the serious nature of the offences and the incompatibility between the conduct giving rise to those offences and the applicant’s performance of his official duties and responsibilities as a police officer.
25. The respondents submit the conduct of the applicant was serious in nature and directly in conflict with his functions as a police officer.  The applicant, whilst on duty, had driven in a manner which constituted the dangerous operation of a motor vehicle causing the death of one person and grievous bodily harm to another.  His convictions were in direct conflict with his functions as a police officer and the maintenance of community confidence in police officers.  The maintenance of public confidence in the police force is a specific matter to be taken into account by the second respondent.
26. The respondents submit that having regard to all of the circumstances, it was reasonably open to the second respondent to determine, in the exercise of his discretion, that it was appropriate to suspend the applicant from duty without salary and allowances.  Whilst another decision maker may have come to a different conclusion, it could not be said the decisions of the second respondent were so unreasonable that no reasonable person could reach that decision.

Discussion

27. A decision-maker, in exercising a statutory power, has an obligation to exercise that statutory power in accordance with established legal principles.  The discretion cannot be exercised arbitrarily or fancifully.  However, if the discretion is exercised in a manner which is in accordance with the nature, scope and purpose of the statutory scheme, that decision is not open to challenge as an improper exercise of power even though an applicant may establish that another person may have reached a different decision. 
28. The decision to suspend the applicant was made after the applicant had been stood down from active police duties, shortly after being charged with the criminal offences.  There was no allegation the applicant had engaged in further separate conduct justifying disciplinary action.  The only change in circumstance was that the applicant had been convicted by a jury of two criminal offences, both arising out of his conduct whilst performing duty as a member of the road patrol.
29. Although the applicant’s conduct which gave rise to the criminal offences was initially viewed as not requiring his suspension as a member of the Queensland Police Force, there was a significant material change in the applicant’s circumstances once he had been convicted of two serious criminal offences, resulting in the imposition of a sentence of imprisonment, albeit wholly suspended.  Such a material change of circumstances justified a reconsideration of whether it was appropriate for the applicant to be suspended from duty as a member of the Queensland Police Service. 

Decision to suspend

30. The convictions raised whether there was an incompatibility between the applicant’s continuation as a member of the Queensland Police Service, although currently stood down from active duty, and the public interest in maintaining public confidence in the administration of the Queensland Police Service and its officers.
31. The second respondent, in the notice of suspension, set out the relevant circumstances relied by when exercising his discretion to suspend the applicant from duty as a member of the Queensland Police Service.  In deciding to suspend the applicant from duty as a police officer, the second respondent specifically gave consideration to the significance of the applicant’s convictions of criminal offences whilst undertaking his duties as a police officer and the incompatibility of that conviction with the maintenance of public confidence in the Queensland Police Service and its members.
32. The second respondent’s initial decision to suspend the applicant as a member of the Queensland Police Service did not lack evidentiary basis.  It was neither illogical nor unintelligible.  It was reasonably open to a reasonable decision maker to conclude that having regard to the nature and circumstances of the applicant’s conviction of criminal offences resulting in the imposition of a term of imprisonment, albeit suspended, the maintenance of public confidence in the Queensland Police Service and its members outweighed other factors such as the personal consequences to the applicant from a decision to suspend the applicant from duty as a police officer. 
33. The second respondent’s decision to suspend the applicant from duty as a member of the Queensland Police Service was reasonably open on the material.  No legal unreasonableness has been shown in respect of that decision.  The ground of review fails in respect of that decision. 

Decision to suspend without salary and allowances

34. The second respondent’s notice of the initial decision to suspend clearly raised that the second respondent was giving consideration to the suspension being without salary and allowances.  That notice gave the applicant an opportunity to show cause as to why he should not be suspended without salary and allowances.  The second respondent’s decision to suspend the applicant without salary and allowances was made after the applicant had made detailed submissions in response to the second respondent’s initial notice of suspension. 
35. Whilst the second respondent’s decision, having regard to the personal consequences for the applicant, may be considered by some to be harsh, that consideration does not render the decision amenable to review on the basis of legal unreasonableness.  Similarly, the fact that another decision maker may have reached a different conclusion does not render the second respondent’s decision amenable to review. 
36. The second respondent’s decision to suspend the applicant without salary and allowances specifically had regard to the contents of the applicant’s submissions.  Whilst the second defendant’s decision did not specifically refer to the circumstances of the applicant’s lack of past disciplinary and traffic history and the sentencing judge’s finding that the conduct occurred as a consequence of momentary inattention or lack of judgment it cannot be reasonably said that the second respondent’s decision failed to have regard to the circumstances of the applicant’s conduct which formed the basis for the laying of the criminal charges.  Those circumstances were matters which had been taken into account in determining whether to suspend the applicant from duty as a member of the Queensland Police Service.
37. The second respondent’s decision to suspend the applicant without salary and allowances was made on the basis that there was an incompatibility between the applicant’s conviction for serious criminal offences resulting in the death and serious injury of motorists as a consequence of his conduct whilst on duty as a road patrol officer and the maintenance of confidence in the Queensland Police Service. 
38. There was a logical and coherent basis for that conclusion.  Public confidence in the administration of the Queensland Police Service properly includes consideration of members of the public being assured that those administering the Queensland Police Service do not allow officers convicted of serious criminal conduct whilst on duty to continue to receive the salary and allowances of members of that service whilst suspended from duty following that conviction.
39. The decision reached by the second respondent to suspend the applicant from duty without salary and allowances was neither illogical nor unintelligible.  The decision did not involve any obvious failure to have regard to relevant factors or give undue weight to one factor over another.  There is no basis to conclude that the decision involved an improper exercise of the power due to legal unreasonableness.  The ground of review in respect of the second decision fails. 

Conclusion

40. Neither decision of the second respondent involved an arbitrary or fanciful exercise of the relevant power.  Each decision had a logical, coherent, intelligible basis.  No legal unreasonableness has been show in respect of either decision.

Orders

41. The application is dismissed.