Review of sanction - applicant one of five police officers who ran nude around vehicle - different sanctions imposed on other participants - need for consistency and avoidance of legitimate sense of grievance - analogy with principle in Lowe v R [1984] HCA 46; [1984] 154 CLR 606 --- relevance of seniority of offender - Tribunal's duty to respect views of original decision maker (as in Aldrich v Ross) but to depart from them when it forms a clearly different view

Mr Ross Murray was represented by Mr P E Smith, counsel

Deputy Commissioner Ian Duncan Stewart was represented by Mr S McLeod, counsel

[1] This is an application by a police officer for review of a sanction imposed upon him in the disciplinary process.

[2] He was one of a group of police officers who engaged in a series of "streaking" incidents around a police bus on 20 September 2009. He pleaded guilty to a charge of misconduct, the particulars of which were that he was off duty and highly intoxicated whilst being transported from Cleveland to Oxley in a Queensland police vehicle, and that he exited the vehicle which stopped at traffic lights in a state of full undress and ran around the vehicle.

[3] The present proceeding is for review of the sanction, mainly a reduction as follows:

"temporary demotion in rank from Sergeant 3.4 to Senior Constable 2.9 for a period of twelve months from today's date. Furthermore, at the completion of the twelve month period, I order that you re-attain the rank of Sergeant 3.1 without the usual requirement for merit based selection. Once you have attained the rank of Sergeant at pay point 3.1 you may progress through the relevant pay points each 12 months provided you achieve satisfactory PPA's and not be required to complete Management Development Program (MDP) and/or Competency Acquisition Program (CAP) requirements in order to progress through the pay points in the Sergeant rank."

[4] The evidence is contained in a 651 page investigation report with attachments interviews and exhibits.

[5] In short compass, the applicant and a number of other police officers and some civilians attended an organised bucks party to celebrate the impending marriage of a police colleague. Two police minibuses were organised to transport eighteen police personnel and two civilians to and from the Raby Bay marina. They departed from the Oxley complex at about 9am, and at Raby Bay they boarded a catamaran which took them to Peel Island where they swam, sailed, jet skied, drank heavily and participated in other diversions. Upon their return to Raby Bay they boarded the minibuses to travel back to Oxley.

[6] The bus in question was driven by Sgt Mallory who had been authorised to take them back to Oxley. He had not attended the bucks party and was sober. The passengers however were heavily intoxicated and Sgt Mallory observed that "walking was a challenge for some of them" (investigation report page 414).

[7] During the return journey there were five incidents at various intersections when the bus had to stop for traffic, or at traffic lights, during which occupants from the bus were seen to exit the bus, and run around it in a counter clockwise direction totally nude. Reports were made to the police authorities concerning some of these incidents by three civilians who were interviewed and provided some evidence.

[8] Some of the occupants of the bus wore police caps and it was apparent to observers that the bus was a police vehicle. The attitude of those reporting the incident ranged from concern to bemusement.

[9] The matter having been reported was quickly investigated by police and also heavily featured in the media.

[10] As a question of inconsistency of sanction has been raised, it is necessary to set out details that allow some comparison to be made between the conduct of the various participants, and the sanctions that were imposed upon each of them.

[11] The five occupants of Sergeant Mallory's mini bus who participated in this were Sergeant Murray, Senior Constable Blunn, Senior Constable Inskip, Senior Constable Swords and Senior Constable Staples.

[12] There is no doubt that there were five "streaking" incidents during the journey. But the evidence as to the acts of the individual participants was scanty.

[13] All five participants and Sergeant Mallory were charged with misconduct. Deputy Commissioner Stewart found the misconduct substantiated in each matter.

[14] There is a degree of comparability between the conduct of the five participants, but there is a significant variation in the sanctions that were imposed on them, as will be seen in the table below.

[15] Each of the participants was charged with improper conduct in that he exited a vehicle when it stopped in a public place, in a state of full undress, and ran around the vehicle. In the table this will be referred to as "nude run".

[16] Sergeant Mallory was charged with, in effect, condonation of the others' conduct and failing to exercise control over them, and his conduct is not really comparable, but he will be included in the table which sets out details of the persons charged, the sanctions imposed, a précis of the charges, and an indication of the participants who suffered the disadvantage of a court fine before being dealt with for misconduct.

[17] It can be seen that the only persons whose penalties were not suspended were Murray and Staples.

[18] In response to the investigator, all five of the participants claimed to be suffering from alcoholic amnesia ranging from severe to total. However the driver of the bus, Mallory, was sober and he was the principal witness. He was obviously a reluctant witness who did not wish to implicate his colleagues, but having been involved in a series of incidents which had been witnessed by members of the public, he could hardly avoid giving at least some details of the involvement of the various members.

[19] Four of the participants, Murray, Blunn, Inskip and Swords, admitted their participation, and provided statutory declarations that would enable them to be prosecuted in the Magistrates Court for public nuisance. In due course they pleaded guilty to that offence and each was fined $300, in default 6 days imprisonment with no conviction being recorded.

[20] Staples however claimed to have no memory of participating in the nude runs, and accordingly did not provide a voluntary statement that would enable him to be prosecuted. On the same basis he contested the disciplinary charge.

[21] There were five locations where nude running occurred namely:

1. At the intersection of Anthony & Elizabeth or Albany Streets;

2. At the intersection of Moreton Bay Road & Redland Bay Road;

3. At the lights at the Gateway intersection;

4. Passed a Mobil service station near Wishart shops;

5. Intersection of Kessels and Main Roads.

[22] In relation to the first incident, Mallory said that it was done by "two blokes" but he was unable to say which ones. He could not say who initiated the disrobing, but said that the call went around the bus to "nude it up" (report page 419). They then started taking their clothes off and continued to disrobe as the bus proceeded to Newcombe Road. They all ignored his protests in his advice to desist. He had no master-control of the opening of the side door of the bus, and whenever the bus stopped, he was unable to prevent the occupants opening it and running around the bus.

[23] In relation to the second incident, he said that two men "jumped out and did it".

[24] In relation to the third incident he described Murray as one of the two participants.

[25] In relation to the fourth incident he said that the participants were Staples and one other.

[26] There is some doubt as to whether the participants in the fifth incident were fully undressed and it is not necessary to mention further details of that incident. Mallory did not name the participants other than Staples.

[27] Mallory's evidence indicates that Murray was "probably the first" to undress, although the thrust of his evidence is of a spontaneous group reaction, with no ring leader identified.

[28] In relation to the third incident, the Gateway intersection, he said that he particularly remembered Murray getting out at that intersection "because he jumped on the front of the car like sprawled across the windscreen so I .. do particularly remember that one."

[29] Murray was the senior officer among the participants. They were all off duty, and the on duty Sgt Mallory ought to have been in charge. However Murray was the senior officer among the participants. Far from setting an example or trying to control the high spirits he was himself an enthusiastic participant. That is an aggravating factor in his case.

[30] It was submitted that little reliance should be placed upon Mallory's description of events, but we think otherwise. The positive details elicited from this reluctant witness seem reliable and to contain the bare minimum of what happened, and to be reliable.

[31] The main submission is that the sanction imposed upon Murray is inconsistent with that imposed on the others, and that it is such as to found a legitimate sense of grievance. Reference was made to Lowe v R, [1984] HCA 46; [1984] 154 CLR 606 and Postiglione v R [1997]189 CLR 295. There is a valid analogy between the concern of the criminal law in this respect and that which should be observed by tribunals in the disciplinary process. Consistency is desirable in all proceedings, civil or criminal, and obviously so far as possible there should be like consequences for like conduct.

[32] Counsel for Murray conceded that his client had acted improperly, but pointed out that it was off duty conduct and the product of intoxication upon a man who normally does not drink much alcohol. However as the intoxication was voluntary, he is responsible for his actions. It is therefore does not excuse his actions but it certainly helps to explain them.

[33] Murray has 19 years of police service and has been publicly shamed. Over the entire period of his commendable service he had never been subjected to the disciplinary process.

[34] He was stood down from duty almost immediately after the incident, and was not called on to attend a disciplinary hearing until more than six months later. From the outset, he and three others indicated that pleas of guilty would be entered. At an early stage it was considered that there was insufficient evidence to proceed with criminal charges, but the appellant provided a statutory declaration which provided proof against him enabling him to be charged. This was the responsible reaction of a genuinely remorseful man.

[35] Counsel for the respondent relied heavily upon the applicant's experience and rank, and the fact that he was entrusted with enforcing the laws. He correctly submitted that more is expected from those of higher rank. The respondent's actions were totally irresponsible, and to some extent tarnished the police image. Counsel also pointed out the necessity for deterrence in a case like the present, and we accept this.

[36] A number of so called comparable cases of misconduct were referred to, but we do not find any of them are of much assistance in reaching a proper level of sanction in the present matter. Reference is made to them in the reasons for judgment in Staples v Deputy Commissioner Stewart OCR236-10, published today, and it is not necessary for us to repeat those points in these reasons.

[37] A convenient starting point in the present matter is to consider the sanctions that were imposed upon Blunn, Inskip and Swords. Both counsel for the applicant and counsel for the respondent agreed that these sanctions were appropriate for the misconduct of those officers.

[38] The only basis upon which the conduct of the present applicant could be considered more serious than that of Blunn, Inskip and Swords is Murray's seniority, along with his slightly more enthusiastic participation in the venture. The respondent was right to take a serious view of his conduct, to be concerned that a senior officer could so behave, and to take into account the public reaction and the detriment such behaviour can cause to the force. We respectfully agree with his concerns in those areas.

[39] However the disparity between the sanctions imposed on Blunn, Inskip and Swords (suspended sanctions) and that on Murray (demotion and loss of 4 paypoints) is far too great.

[40] Considerable respect is paid in this Tribunal to the views of the original decision maker (cf Aldrich v Ross [2000] QCA 501; [2001] 2 Qd R 235), but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own views. Aldrich v Ross (at p 257) recognises that the independent review tribunal is the only vehicle by which a public perspective is brought to bear in police disciplinary matters, and accordingly there will be cases where it will be appropriate and necessary to depart from the views of the original decision maker.

[41] Submissions varied as to the actual loss that Murray would suffer by reason of the sanction. His counsel provided details suggesting it was equivalent to $28,825.00, while counsel for the decision maker contended that the loss would be $21,500.00. Taking a median figure of $25,000, it is obvious that a very severe penalty was imposed, 80 times greater than that which the Magistrates Court thought fit to impose for the public nuisance that was committed.

[42] We have also taken into account the level of seriousness of Staples' conduct, which was obviously more serious than that of Blunn, Inskip and Swords, but less serious than that of Murray.

[43] Doing the best we can to maintain some consistency, we think that the appropriate sanction in the present case is the loss of two paypoints for a period of 12 months, and will order accordingly.