Crime and Corruption Commission v Carless & Anor [2026] QCAT 247

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Carless & Anor [2026] QCAT 247 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER MAURICE CARLESS (first respondent) SENIOR CONSTABLE BARRY WELLINGTON (second respondent) APPLICATION NO/S: OCR235-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 1 June 2026 HEARING DATE: 3 December 2025 HEARD AT: Brisbane DECISION OF: Member Carrigan ORDERS: Leave is granted to the First Respondent pursuant to s 219Q(2) of the Crime and Corruption Act 2001 (Qld) to adduce fresh evidence as contained in exhibits “MOB-1” to “MOB-5” of the Affidavit of Mark Colin O’Brien sworn on 13 November 2025. Pursuant to s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Second Respondent’s period of demotion from Senior Constable level 2.10 to Constable level 1.6 for 12 months has effect from when the reviewable decision took effect on 9 July 2020 and continues until 9 July 2021. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE – MISCONDUCT AND BREACH OF DISCIPLINE – period of demotion – when does the period of demotion commence – should a contrary order be made – weather inequitable or unjust to make a contrary order Crime and Corruption Act 2001 (Qld), s 219Q Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 -- 1 of 5 -- 2 APPEARANCES & REPRESENTATION: Applicant: S Whitefield, Principal Lawyer, Crime and Corruption Commission First Respondent Second Respondent M O’Brien, A/Director QPS, Queensland Police Service C Gnech, Lawyer for the Second Respondent REASONS FOR DECISION Principal Decision dater 23 October 2025 [1] The Principal Decision1 in these proceedings was delivered on 23 October 2025. That Decision decided all issues relating to the Crime and Corruption Commission’s Application to review the decision of Assistant Commissioner Maurice Carless dated 9 July 2020 save for the issue of the date of commencement of the period of demotion of Senior Constable Barry Wellington. [2] As was explained in the Principal Decision the Tribunal had insufficient material, evidence and submissions relating to the issue as to when the period of demotion was to commence to satisfy the requirements of s 24(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [3] The Tribunal will now deliver its decision in relation to the commencement/termination date of the period of demotion as referred to in s 24(2) of the QCAT Act. [4] The Tribunal also notes that the Second Respondent filed on or about 30 January 2026 an Application for reopening of the proceedings pursuant to s 138 and s 139 of the QCAT Act. That Application is yet to be heard and determined by the Tribunal. The Tribunal, notwithstanding the filing of this Application, can nevertheless proceed with delivery of this decision relating to the issues in s 24(2) of the QCAT Act. The QCAT Act provides in s 138A(1) that an application under s 138 to reopen proceedings: does not affect the operation of a decision made by the tribunal in the proceeding or prevent the taking of action to implement the decision. No application has been made for a stay of the operation of the decisions made by the Tribunal in the proceedings.2 Application to Adduce Additional Evidence [5] On 13 November 2025 the First Respondent in accordance with directions3 made by the Tribunal in the Principal Decision filed the following documents: (a) Application to adduce fresh evidence; (b) Affidavit of Mark Colin O’Brien; and 1 [2025] QCAT 433. 2 QCAT Act s 138A(2). 3 [2025] QCAT 433 at Order 4(a), (b) and (c). -- 2 of 5 -- 3 (c) Outline of Submissions on behalf of the First Respondent. [6] Subsequently the Applicant filed4 its submissions in response to the material filed by the First Respondent. No submissions were received from the Second Respondent relating to the material filed on behalf of the First Respondent. [7] The fresh evidence relied on by the First Respondent is in the affidavit of Mark Colin O’Brien and consists of exhibits “MOB-01” to “MOB-05”. Notwithstanding that this fresh evidence was the subject of the directions made in the Principal Decision, the First Respondent submitted that this fresh evidence was necessary for the Tribunal to have regard to determine the commencement of the period of demotion to be served by the Second Respondent. [8] The Applicant’s submissions stated that it had: no objection to the Affidavit being received into evidence as it contains information that is relevant to the Tribunal’s orders and ultimate disposition of the matter. Given the nature of the Tribunal’s orders, it would be unfair to the Second Respondent not to allow the evidence to be adduced. [9] The Tribunal considers that the fresh evidence in the affidavit of Mark Colin O’Brien is very relevant to the issue being considered in s 24(2) of the QCAT Act. The evidence from the QPS Human Resources officer of 6 July 2021 records the Second Respondent’s previous demotion from 9 July 2020 to 9 July 2021 in association with the evidence that during this period the Second Respondent made repayments to QPS of $21,194.97 in overpayment of salary and wages during the demotion period. The admission of this evidence is essential to avoid any injustice to the Second Respondent and also to reach the correct and preferable decision. The fresh evidence also establishes that repayments were concluded on 4 October 2024; that QPS never reimbursed the Second Respondent after the Tribunal’s earlier decision of 8 June 2001 which ordered the demotion and which decision was then set aside by the Appeal Tribunal in October 2022. The Tribunal accepts the uncontested fresh evidence referred to above and considers that it is necessary to have all of the fresh evidence in the Affidavit of Mark Colin O’Brien as part of the evidence in these proceedings and in particular relating to the issues in s 24(2) of the QCAT Act. [10] These proceedings have been conducted in accordance with s 219Q of the Crime and Corruption Act 2001 (Qld) (‘CC Act’) where the review of the decision has been by way of rehearing on the evidence (the original evidence) available to the original QPS decision maker. However, the Tribunal has a discretion to grant leave to adduce fresh, additional or substituted evidence provided it is satisfied about the matters in s 219Q(2)(a) and/or (b) of the CC Act. The criteria in s 219Q(2)(a) has application in these proceedings as the fresh evidence would not have been known at the time of the original proceeding. Also, s 219Q(2)(b) provides a discretion to grant leave to adduce fresh evidence where there are special circumstances and it would be unfair not to allow a person to adduce new evidence. The fresh evidence did not exist at the time the application to review the decision was filed on 4 August 2020. The evidence only arises following the earlier Tribunal decision on 8 June 2021. It did not exist at the time of the rehearing by the Tribunal on 14 November 2024. These facts overlap with the discretion in s 219Q(2)(a) but, nevertheless, are also capable of being a special circumstance for the purposes of s 219Q(2)(b). The Tribunal is satisfied that there are 4 Filing date was on or about 26 November 2025. -- 3 of 5 -- 4 special circumstances relating to the application to adduce this fresh evidence. If the fresh evidence was not adduced the Second Respondent’s position would be prejudiced because of the denial of relevant evidence to the issue in s 24(2) of the QCAT Act. It would be unfair to the Second Respondent not to allow this fresh evidence. The Applicant in its submissions says it has no objection to the fresh evidence being adduced. In its submissions the Applicant states:5 The Applicant has no objection to the Affidavit being received into evidence as it contains information that is relevant to the Tribunal’s orders and the ultimate disposition of the matter. Given the nature of the Tribunal’s orders, it would be unfair to the Second Respondent not to allow the evidence to be adduced. The Tribunal agrees with and accepts the content of the Applicant’s submissions. Similarly, the First Respondent has submitted that this fresh evidence should be addressed in the proceedings and the Tribunal accepts and adopts those submissions as well. [11] For reasons discussed in the preceding paragraph leave should be given to the First Respondent to adduce the fresh evidence as the Tribunal is satisfied that the criteria in s 219Q(2)(a) and (b) has been established. The Tribunal will make orders granting leave to adduce the fresh evidence. Section 24(2) of the QCAT Act and the period of demotion [12] Given that the Principal Decision made orders for the demotion of the Second Respondent, the issue that arises now is:6 should the order for the demotion take effect from either the date when the reviewable decision was made or from on some other date in accordance with any contrary order that could be made by the Tribunal. [13] The reviewable decision was made by the First Respondent and was received by the Second Respondent on 9 July 2020. In the circumstances, should the Tribunal make a contrary order that has the demotion taking affect from some date other than the date when the reviewable decision took effect. [14] The First Respondent has submitted to the Tribunal that the period of demotion should be served from 9 July 2020 to 9 July 2021.7 [15] The Applicant made a similar submission when it said:8 In the circumstances, the Applicant submits the 12-month demotion period should take affect from 9 July 2020 to 9 July 2021. [16] Subsequent to 9 July 2020 the reviewable decision was the subject of a review by the Tribunal on 8 June 2021, by the Appeal Tribunal on 20 October 2022 and in the Principal Decision delivered on 23 October 2025. The evidence is that the Second Respondent separated from QPS by way of medical retirement on 30 April 2025. [17] In considering whether a contrary order should be made the Tribunal takes into account evidence in the proceedings at the time of the hearing and also the additional fresh evidence contained in the Affidavit of Mark Colin O’Brien. There is significant 5 Submissions dated 26 November 2025 at paragraph 3. 6 QCAT Act s 24(2)(b). 7 Submissions dated 13 November 2025 at paragraph 13. 8 Submission dated 26 November 2025 at paragraph 6. -- 4 of 5 -- 5 evidence that the Second Respondent has already been the subject of a period of demotion from 9 July 2020 to 9 July 2021 relating to the reviewable decision of 9 July 2020. As a consequence of that period of demotion, the Second Respondent has repaid to QPS $21,194.97 in overpayment of salary and wages during that demotion period. It is also relevant that notwithstanding the Appeal Tribunal’s decision of October 2022, QPS has never refunded the Second Respondent any part of the $21,194.97. As at the time of his medical retirement from the QPS on 30 April 2025 that amount would have been owing to the Second Respondent subject to any further review by the Tribunal which was subsequently made in the Principal Decision delivered on 23 October 2025. As the evidence presently stands, QPS still retain the $21,194.97. [18] Assuming for the moment that a contrary order was made by the Tribunal so that the demotion commenced on some date after 9 July 2020, there appears to be an injustice in doing so for reasons including the following: (a) The period of demotion commencing subsequently to 9 July 2020 could well involve the Second Respondent being, at that time, in receipt of increased salary and wages compared to his salary and wages at 9 July 2020. That would result in an increased amount over and above the $21,194.97 being paid during any later period of demotion. Given that the Second Respondent has already paid for the period of demotion, any such contrary order would in effect be an increased impost by way of penalty where the evidence does not support an amount over the $21,194.97 being paid; and (b) A period of demotion has already in effect been served by the Second Respondent from 9 July 2020. Why would a second period of demotion, commencing later than 9 July 2020, now be made by way of a contrary order? Assuming a contrary order was made for any subsequent period, how is justice being served by having the Second Respondent undergo this additional period of demotion? There is no evidence of any adjustments which would be made in favour of the Second Respondent if that course of action was adopted. Such a result would be inequitable and unjust to the Second Respondent. [19] The Tribunal is satisfied that in all the circumstances and particularly because of the fresh evidence in the Affidavit of Mark Colin O’Brien and the reasons in the preceding paragraph there is no legal or factual basis for making a contrary order in accordance with s 24(2)(b) of the QCAT Act. The Tribunal accepts and adopts the submissions already referred to from the First Respondent and from the Applicant that the period of demotion should commence on 9 July 2020. The Tribunal finds that the period of the demotion should commence as stated in section 24(2)(b) of the QCAT Act and commence from the date when the reviewable decision took effect. The Tribunal will make an order in accordance with that finding for the demotion to commence on 9 July 2020. Orders [20] Leave is granted to the First Respondent pursuant to s 219Q(2) of the Crime and Corruption Act 2001 (Qld) to adduce fresh evidence as contained in exhibits “MOB- 1” to “MOB-5” of the Affidavit of Mark Colin O’Brien sworn on 13 November 2025. [21] Pursuant to s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Second Respondent’s period of demotion from Senior Constable level 2.10 to Constable level 1.6 for 12 months has effect from when the reviewable decision took effect on 9 July 2020 and will continue until 9 July 2021. -- 5 of 5 --