Police Misconduct - Sanction - Pursuit Policy directions discussed - where respondent failed to follow pursuit policy contained in the Human Resources Management Manual 14.23.5 - where failure to notify local communications centre of the commencement of the pursuit - where failure to abandon pursuit where unacceptable risk to safety - where pursuit resulted in death and serious injury - where sanction imposed inadequate to reflect the seriousness of the conduct

CMC v Barnett and Eaton (No 2) [2011] QCAT 161

Crime and Misconduct Commission represented by Mr T D Gardiner of counsel instructed by Ms Wood

Stephen Wayne Chapman represented by Mr P Smith of counsel instructed by Queensland Police Union of Employees

[1] On 2 February 2011 Acting Commissioner Wilson found two charges of misconduct to have been substantiated against Senior Constable Chapman, and fined him $200 on each matter.

[2] Those proceedings and the present review arise out of a police pursuit on the Gold Coast on 16 June 2006 in which a motorcyclist died and a pillion passenger was seriously injured.

[3] The charges, shortly stated, are that Chapman failed to comply with QPS pursuit policy and that he was untruthful during disciplinary interviews.

[4] The CMC has sought review of the sanctions on the ground that they are manifestly inadequate.

[5] In the original proceedings Chapman pleaded guilty to a charge of breach of police pursuit policy, and not guilty to a charge of being untruthful during police interviews. The decision-maker found both charges to be substantiated. However Chapman then brought proceedings for review on the untruthfulness charge (Chapman v Wilson and CMC, OCR029-11), and in reasons published today in that matter the substantiation of that charge has been set aside.

[6] Therefore the only live issue for determination in the present proceeding is the adequacy of the sanction imposed for breach of pursuit policy.

[7] There are two separate particulars of the pursuit charge against Chapman, one, in respect of failing to notify Comms at the commencement of the pursuit, and the other, in respect of his conduct in Beechmont Road towards the end of the pursuit. The relevant particulars were

1. You failed to notify the radio operator, as soon as possible, with regard to the pursuit in accordance with section 14.23.6 of the Operational Procedures Manual.

2. You failed to turn off all emergency warning equipment, failed to ensure the vehicle was pulled over and stopped at the first available safe position, and failed to conduct a safety check of the police vehicle upon terminating the pursuit in accordance with section 14.23.7 of Commissioner's Circular 17/2005.

[8] In order to consider the appropriate sanction it is necessary to set out our view of the facts disclosed by the evidence. Our view concerning the circumstances of the police pursuit, and of Chapman's conduct during the interviews thereafter, have been detailed in reasons for judgment in Chapman v Wilson and CMC (OCR029-11), in particular in paragraphs [13]-[52], and it is unnecessary to repeat them here.

[9] "Pursuit" bears a special meaning in the context of police pursuits. A policy was instituted by the Commissioner after attention was drawn in 2003 to a series of deaths in the course of police pursuits. In 2006 a series of directions were made in the Human Resources Management Manual HRMM 14.23.5, which are binding on all members of the police force (see Police Service Administration Act 1990, s 4.9). The relevant requirements were stated in circular 17/2005, exhibit 3 in these proceedings.

[10] The directions make a distinction between "urgent duty driving" and "pursuit driving". The following are the definitions:

Pursuit means an attempt by an officer driving a police vehicle to intercept another vehicle where that officer believes on reasonable grounds that the other driver is avoiding interception. An intercept is when an officer is endeavouring to stop another vehicle - a pursuit begins when the officer believes on reasonable grounds that the driver of the other vehicle is intentionally avoiding being intercepted.

Urgent duty driving means driving to perform a duty which justifies prompt action and may include driving a service vehicle in a manner that if not justified would ordinarily constitute an offence.

[11] The policy requires officers undertaking a pursuit to apply a set of risk assessment criteria to determine whether it should be commenced. The passenger in the pursuit car is required to contact the local radio communications room and describe the circumstances so that the pursuit can be overviewed by another officer who is kept informed of developments. That officer has authority to direct the pursuers to terminate the pursuit.

[12] If there is an unacceptable risk to the safety of any person the pursuit must be abandoned by turning off of flashing lights and sirens, pulling the police vehicle over at the first available safe position, and advising the pursuit controller that the pursuit has been abandoned.

[13] Counsel for the CMC correctly emphasised the importance of immediate contact with the local communications room ("Comms") whenever a pursuit is initiated, so that it can be overviewed by another officer who is kept informed of developments via the police radio.

[14] The primary submission for the CMC was that the pursuit commenced at the Robina Parkway on the motorway. However, we are not satisfied that the chase along the Pacific Motorway was a formal pursuit as distinct from urgent duty driving. Car 972's siren was not activated any stage while it travelled along the Pacific Motorway. In a full pursuit along that motorway, even late at night, one would expect maximum warning to be given to any traffic on the motorway of the emergency situation. Furthermore, car 972 was not driven at anything like its maximum speed.

[15] We therefore think that the driving along the motorway should be characterised as urgent duty driving rather than formal pursuit.

[16] However all the elements of a formal pursuit existed very soon after the motorcyclist exited the motorway at Nerang. At least by that stage there can be no doubt that the motorcyclist was aware of the police presence and was trying to "lose" them. This was the point at which he should have called pursuit to Comms. In our view the formal pursuit should be regarded as having commenced at the Mobil service station in Nerang.

[17] Significantly, during his second interview, Chapman admitted "The traffic branch generally stick together through the night. If I needed VKR's assistance well I'd call him straight away". This shows a misunderstanding of QPS pursuit policy. Notification of Comms is mandatory at the very outset of any pursuit, not something to be called in aid only if the police officer believes he needs them. Its objective is to provide measured supervision from persons not caught up in the heat of the pursuit. Chapman further admitted that in hindsight that he probably should have called VKR earlier in the pursuit.

[18] His first overt attempt to notify Comms was at a point between the Beaudesert Road turnoff and the Beechmont turnoff, which suggests that the pursuit had been in progress for a significant distance, probably several kilometres, before any attempt to "call" the pursuit to Comms.

[19] In our view the first particular is made out in that Chapman failed to call communications immediately upon his initiation of the pursuit.

[20] This concerns Chapman's actions at the end of the pursuit.

[21] In pleading guilty to the breach of pursuit policy charge, Chapman's Counsel indicated that his client "accepts the charge on the basis that he could have tried harder and sooner to contact police communications". It follows that there was no admission of the facts contained in the second particular. It is therefore necessary for us to form a view as to the conduct alleged therein.

[22] Our views on the facts are set out in OCR029-11, particularly in paragraphs [28]-[38].

[23] Acting Commissioner Wilson made the following findings on this part of the case:

"A decision was made to terminate the pursuit about the time of turning into Beechmont Road. At this time however the relevant QPS pursuit policy was not complied with as you allowed the police vehicle to continue to follow the motorcycle along Beechmont Road for approximately 660 metres until the crash site, whilst the flashing lights of the police vehicle were still activated.. when the policy required that you turn off all emergency warning equipment, to ensure the vehicle was pulled over and stopped at the first available safe position, and to conduct a safety check of the police vehicle."

[24] Chapman considered terminating the pursuit around the time of entering Beechmont Road. He knew that it was a winding road with sharp corners, and did not think the car would be much of a match for the bike. He said that when he saw the motorcycle turn into Beechmont Road "We were just thinking, well we'll just wind it up... and leave it at that."

[25] But curiously, he did not do so. He was still a similar distance behind the motorcycle at the time of collision as he had been when he turned into Beechmont Road, and plainly the pursuit did not end until the motorcycle crashed. (Record 1145-1146).

[26] Clearly the continuation of the police pursuit until the motorcycle ran into the rock wall was a contributing cause to the disaster.

[27] The second particular puts Chapman's conduct along Beechmont Road in issue. The allegation that he "failed to ensure the vehicle was pulled over and stopped at the first available safe position" necessarily implies a failure to terminate the pursuit and take appropriate action. It concerns Chapman's conduct after his awareness that further pursuit was undesirable.

[28] Counsel for the CMC submitted that "the pursuit continued in dangerous circumstances". The response of Counsel for Chapman to this was that there was no immediate place to pull over. There are two answers to this response. One, there was a place to pull over; and, two, even if he could not find a place to pull over all that needed to be done to terminate the pursuit was to slow down and turn off the flashing coloured lights.

[29] We think that this aspect of Chapman's conduct was serious. He failed to terminate the pursuit when it should have been obvious that the situation was dangerous.

[30] The final part of particular 2 (failing to do a safety check after stopping) is also made out, but that is essentially a technical breach, and insignificant in comparison to his failure to stop.

[31] Chapman is to be dealt with for a combination of breaches of the pursuit policy, namely

• (a) late notification of pursuit, which deprived the control centre of the opportunity to call it off; and

• (b) breaches that occurred towards the end of the pursuit.

[32] These are serious matters especially in a pursuit that resulted in loss of life.

[33] Counsel for the CMC submitted that dismissal from the force was the only appropriate sanction in these circumstances. However this was posited on the assumption that Chapman was also guilty of having lied to interviewers, which would add elements of dishonesty and lack of trust to the overall picture. Our determination in _Chapman v Wilson and CMC (_OCR029-11) has removed this serious element from the equation. Plainly the above breaches of the pursuit policy were serious, but we do not think they require dismissal from the force.

[34] There are few prior decisions setting a level of sanction in such matters. A recent matter, CMC v Barnett and Eaton (No 2) [2011] QCAT 161 is of most assistance. Counsel for the CMC submitted that Eaton's case is not comparable and "is of limited assistance", but did not say why.

[35] Eaton had engaged in a risky police pursuit during 2009. He was a Senior Sergeant whose pursuit was along the Bruce Highway and also in a suburban area. Like most cases of this kind, his conduct was the product of over-zealousness in performance of police duties, or faulty judgment in a tense situation, rather than of dishonesty, corruption or poor character.

[36] As was observed in paragraphs 65 and 66 of that case:

"Chases of this kind put the public at risk and at regular intervals cause extreme distress from collateral damage. It is important that this policy, designed to enhance relations between police and the public, be observed, especially by its senior officers. The need for restraint in chase situations is very clear on the Commissioner's direction, though of course personal judgment is involved in every such decision.

The conduct was not dishonest or indicative of bad character, although an element of recklessness has been shown to have been present."

[37] Eaton drove at 225km per hour along the Bruce Highway and at 150km per hour in a 60kmh speed zone. There was no damage caused to any person or property, and indeed, Sergeant Eaton eventually succeeded in identifying the culprit. An aggravating feature in his case was that Eaton had been involved some years previously in another police chase that had resulted in two deaths. This introduced an element of insensitivity and recklessness on his part. Sergeant Eaton's level of salary was reduced by two pay points for a period of nine months.

[38] In some respects the present case is more serious than Eaton and in others less so. However the combination of Senior Constable Chapman's actions and the fact that a death ensued make the present case overall more serious than Eaton.

[39] For such conduct a fine of $200 is manifestly inadequate.

[40] At the time of the pursuit Chapman was aged 43 and a Senior Constable. Currently he is aged 48 and is still a Senior Constable, now on paypoint 2.9. He had an exemplary record of service prior to the incident, and pleaded guilty to the only charge upon which he has been subsequently found guilty. Notwithstanding this early plea he has had the stress of five years' delay before determination.

[41] Taking into account all these factors, including the need to ensure that the police pursuit policy is respected, and attempting to maintain some consistency, we consider the appropriate sanction is the loss of two pay points for a period of two years.