Crime and Corruption Commission v Carless & Anor [2025] QCAT 433

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Carless & Anor [2025] QCAT 433 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: 23 October 2025 HEARING DATE: 14 November 2024 HEARD AT: Brisbane DECISION OF: Member Carrigan ORDERS: The Tribunal Orders that: The Crime and Corruption Commission is granted leave to adduce new evidence in relation to the materials in the proceedings OCR114-22; Senior Constable Barry Wellington is granted leave to adduce new evidence in relation to provision of character references and his witness statement; Pursuant to s 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld): (a) the decision made on 9 July 2020 by Assistant Commissioner Maurice Carless on disciplinary action against Senior Constable Barry Wellington is set aside; and (b) the Tribunal substitutes its own decision that Senior Constable Barry Wellington be demoted from Senior Constable level 2.10 to Constable level 1.6 for a period of 12 months; Further consideration by the Tribunal of the date, pursuant to s 24(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), upon which the demotion to Constable level 1.6 takes effect is -- 1 of 30 -- 2 adjourned for further hearing and to enable the parties to provide to the Tribunal further submissions and new evidence, if any, and the Tribunal makes the following Directions: (a) Assistant Commissioner Maurice Carless is to file in the Tribunal two (2) copies and is to give to the Crime and Corruption Commission and to Senior Constable Barry Wellington one (1) copy of his submissions and Application to adduce new evidence, if any, including documents or copies of all the new evidence to be relied upon relating to all relevant events to these proceedings of any prior period of demotion of Senior Constable Barry Wellington including the starting date and the end date of any period of demotion and whether there has been an adjustment of salary in accordance with that demotion, on or before; 4.00 pm on Wednesday, 12 November 2025. (b) The Crime and Corruption Commission and Senior Constable Barry Wellington are to file in the Tribunal two (2) copies and are to give to Assistant Commissioner Maurice Carless one (1) copy of their submissions in reply, including an Application to adduce new evidence, if any, including documents or copies of all the new evidence to be relied upon relating to all relevant events to these proceedings of any prior period of demotion of Senior Constable Barry Wellington including the starting date and the end date of any period of demotion and whether there has been an adjustment of salary in accordance with that demotion, on or before; 4.00 pm on Friday, 28 November 2025 (c) Unless any party makes a written request filed in the Tribunal by 4.00 pm on 28 November 2025 for an oral hearing, the Tribunal will proceed, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), to hear and determine the issue of the date that the demotion takes effect from in accordance with the submissions and any Application filed by the parties without the parties or their representatives appearing at the hearing. -- 2 of 30 -- 3 CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE – MISCONDUCT AND BREACH OF DISCIPLINE – where the Second Respondent engaged in improper conduct by instructing a junior comfortable to drive in a manner which posed an unacceptable risk – where the officer failed to comply with operational procedures and directions to abandon a pursuit of a stolen vehicle – where the officer discharged a service issue firearm without justification – whether there was an error of law in the reviewable decision Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17 Crime and Corruption Act 2001 (Qld), s 219Q Police Service Administration Act 1990 (Qld), s 7.1, s 7.34 Willmott v Carless [2024] QCA 115 Crime and Corruption Commission v Acting Assistant Commissioner MJ Keating & Anor (2015) QCAT 176 APPEARANCES & REPRESENTATION: Applicant: P Cardiff, Legal Representative of the Crime and Corruption Commission First Respondent: M O’Brien, Senior Legal Officer for Assistant Commission Maurice Carless Second Respondent: C Gnech, Legal Practice Director for Gnech and Associates REASONS FOR DECISION [1] The issue in these proceedings is whether a decision dated 9 July 2020 by Assistant Commissioner Maurice Carless (‘the First Respondent’) to impose a discipline sanction of reprimand on Senior Constable Barry Wellington (‘the Second Respondent’) should be confirmed or set aside and a different sanction imposed. [2] The Crime and Corruption Commission (‘the Applicant’) seek orders pursuant to s 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) that: (a) the First Respondent’s sanction decision of 9 July 2020 be set aside; and (b) the Tribunal substitutes the correct and preferable disciplinary sanction decision. Background Facts [3] On 23 April 1999 the Second Respondent was inducted into the Queensland Police Service (‘QPS’). By 9 July 2020 the Second Respondent had been promoted to the rank of Senior Constable 2.10. [4] On 17 May 2015 at the Gold Coast it is alleged the Second Respondent engaged in improper conduct as a QPS officer. The allegation of misconduct were: -- 3 of 30 -- 4 (a) during a pursuit, he instructed a junior constable to drive in a manner which posed an unacceptable risk to him and the junior constable, other road users and members of the public; (b) failed to comply with operational procedures and directions to abandon the pursuit; and (c) discharged his service issue firearm without justification. [5] In May 2015 the Second Respondent was stood down from duty. [6] Subsequently, the Second Respondent was suspended from duty between 4 November 2015 and 3 January 2020, a period of four years and two months.1 [7] On 10 May 2016 the Second Respondent was charged with a criminal offence relating to his conduct but those proceedings were subsequently dismissed when the prosecution offered no evidence. Those proceedings were concluded by 7 September 2016. [8] On 12 October 2016 the Second Respondent was again charged with two indictable offences. Subsequently on 11 May 2018 those proceedings were permanently stayed on the ground that it was an abuse of process. [9] Later on 7 March 2019 disciplinary proceedings were commenced but were subsequently discontinued following the retirement of the investigating officer. [10] In April 2020 further disciplinary proceedings commenced against the Second Respondent. [11] On 11 June 2020 the First Respondent gave a notice to the Second Respondent that a disciplinary matter against him had been substantiated and invited the Second Respondent to provide submissions concerning the proposed disciplinary action. [12] On 6 July 2020 the Second Respondent provided his submissions in relation to the proposed disciplinary action. The Second Respondent contested the grounds for disciplinary decision. [13] On 9 July 2020 the First Respondent informed the Second Respondent that his submission of 6 July 2020 had been considered and a decision was made to impose a disciplinary sanction of reprimand pursuant to Part 7 of the Police Service Administration Act 1990 (Qld) (‘PSAA’). [14] On 4 August 2020 the Applicant filed in the Tribunal an Application to review the decision made by the First Respondent on 9 July 2020. [15] On 23 November 2020 the Second Respondent withdrew his contest of theallegation of improper conduct and from that date did not dispute the finding of misconduct. [16] On 23 March 2021 the Tribunal conducted a hearing and subsequently on 8 June 2021 made a decision in respect of the Application to review the decision dated 9 July 2020. [17] On 30 June 2021 the Second Respondent appealed the Tribunal’s decision made on 8 June 2021.. 1 Second Respondent’s Notice of Contentions filed 3 November 2020 at paragraph 2. -- 4 of 30 -- 5 [18] On 3 January 2022 the Second Respondent’s suspension was revoked and he returned to work.. Prior to returning to operational duties the Second Respondent was required to complete:2 (a) recruit training in regard to all aspects of QPS operational skills and firearms training including the use of firearms for moving vehicles; (b) the QPS Pursuits and Driving Policy Online Products and a number of other relevant online learning products. [19] Onn 11 May 2022 Superintendent Geoff K Sheldon made a decision to confirm a disciplinary allegation had been substantiated against the Second Respondent in respect od events which occurred subsequent to the events in these proceedings and imposed a sanction of reprimand. That decision subsequently became the subject of an Application to review a decision in Tribunal proceedings OCR114-22. [20] From 10 July 2022 the Second Respondent returned to operational duty as a Senior Constable “without further issue arising.”3 He was required to perform every operational shift in his first 28 days with an officer at the rank of Senior Constable or above. Since then he has been required to perform at least 50% of his shift with an officer of the rank of Senior Constable or above which subsequently progressed to him now supervising first year Constables during particular shifts. Since resuming operational duties the Second Respondent has been mentored by a Sergeant who is overseeing his transition back into operational duties under a re-integration program. [21] The appeal from the earlier decision in these proceedings dated 8 june 2021 was subsequently heard by Judicial Member McGill SC. That decision made on 20 October 2022 that the earlier Tribunal decision be set aside and the matter be returned to the Tribunal for a rehearing by a different Member and to be heard together with proceedings OCR114-22.Both proceedings were not consolidated. [22] On 14 February 2023 the Tribunal made directions for these proceedings to be adjourned to await the decision of the Court of Appeal of the Supreme Court of Queensland in the referred matter of Willmott v Carless. [23] On 14 June 2024 the Court of Appeal published its decision in Willmott v Carless clarifying the Tribunal’s review process under s 219Q(1) of the Crime and Corruption Act 2001 (Qld) (‘CCA’). Tribunal’s Jurisdiction in Reviewing the Decision of 9 July 2020 [24] The Application filed by the Applicant is in the review jurisdiction of the Tribunal. [25] The Tribunal review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.4 [26] The decision of the First Respondent of 9 July 2020 is a reviewable decision as it was made under the PSAA.5 Accordingly, the Applicant may apply to the Tribunal for a review of the decision of 9 July 2020.6 The conduct of the reviewable decision is by 2 Ibid paragraph 7. 3 Ibid paragraph 6. 4 QCAT Act s 17. 5 CCA s 219BA(1)(b). 6 Ibid s 219FAP. -- 5 of 30 -- 6 way of a rehearing on the evidence (original evidence) given in the proceedings before the original decision-maker, unless leave is granted to adduce fresh, additional or substituted evidence (new evidence).7 In these proceedings the CCA is the “enabling Act”. [27] In Willmott v Carless (‘the Willmott decision’) the Court of appeal held that:8 The Tribunal’s review power under s 219Q(1) of the Crime and Corruption Act 2001 (Qld) is predicated on there being first shown legal, factual or discretionary error in the decision below. [28] The “tension” between s 219Q of the CCA and s 20 of the QCAT Act in relation to any inconsistency between the way in which a review of a disciplinary decision is conducted, was resolved by the Court in the Willmott decision which stated: That means that the nature of the review under s 219Q is not a fresh hearing on the merits as provided for in s 20 of the QCAT Act. Section 219Q therefore prevails over s 20 of the QCAT Act. [29] Accordingly, in the conduct of the review in these proceedings pursuant to s 219Q it will be necessary for the Tribunal to first determine whether there has been a legal, factual or discretionary error made in the decision of 9 July 2020 to determine if the Tribunal should exercise its review power. That determination as to whether there is a factual, legal or discretionary error will be made below. [30] If the Tribunal finds that there was a factual, legal or discretionary error, then the Tribunal may:9 (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the Tribunal considers appropriate. [31] Following the decision in Willmott v Carless, Judicial Member McGill SC referred to s 219Q of the CCA displacing s 20 of the QCAT Act and stated: The practical effect of this, in my opinion, is that the review has become something very like an appeal by way of rehearing after a trial in a court, with perhaps the main difference being that, the proceedings before the original decision maker having been conducted without an oral hearing, there is not the same opportunity for the assessment of credibility of witnesses at first instance to operate as a limiting factor on the rehearing. That is not important in the present case, where there is no dispute about the factual basis of the matters alleged against the applicant, except on one point, which was decided as a matter of inference. It may be that, in time, differences from an appeal by way of rehearing will emerge. What is the Misconduct Alleged in these Proceedings [32] A Disciplinary Proceeding Notice dated 9 April 2020 (‘the Notice’) was sent by the First Respondent to the Second Respondent specifying alleged misconduct, which, if 7 Ibid s 219Q; see also s 219H. 8 [2024] QCA 115, [43]. 9 QCAT Act s 24. -- 6 of 30 -- 7 proved, would provide grounds for discipline pursuant to s 7.4 of the PSAA and inviting the Second Respondent to respond in writing why a disciplinary finding should not be made against him. [33] The conduct specified in the Notice was in these terms: Matter 1: That on 17 May 2015 at the Gold Coast your contact was improper in that you: (a) During a pursuit instructed the junior constable to drive in a manner which posed an unacceptable risk to yourselves, other road users and members of the public; (b) Failed to comply with operational procedures and directions to abandon the pursuit; (c) Discharged your service issue firearm without justification. Further Particulars Matter 1(a) i. On 17 May 2015 you were rostered to perform mobile patrol duties in a marked police vehicle in company with a Constable; ii. Shortly after 9.00 pm you engaged in the pursuit of a stolen vehicle at Pacific Pines; iii. During the pursuit you directed the Constable to deliberately drive a police vehicle into the rear of a stolen vehicle; iv. During a discipline interview you stated everything the Constable did during the pursuit, she did under your direction as you were trying to apprehend suspect robbery offenders. Matter 1(b) i. During the pursuit you were directed to abandon the pursuit by COMCO and the District Duty Officer; ii. You failed to abandon the pursuit as directed and continued to pursue the vehicle; iii. During your discipline interview when asked why you did not terminate the pursuit when directed you stated, “I agree I should have, I accept full responsibility for my actions and my directions to (the Constable).” Matter 1(c) i. During the pursuit the stolen vehicle lost control on Shoalhaven Avenue, Pacific Pines; ii. You and a Senior Sergeant exited your respective police vehicles and approached the stolen vehicle; iii. You observed the stolen vehicle accelerate towards the Senior Sergeant and he took evasive action; iv. You discharged your firearm on two occasions at the stolen vehicle; -- 7 of 30 -- 8 v. The discharge of your firearm was disproportionate response as the stolen vehicle did not pose an immediate threat to the Senior Sergeant at the time you discharged your firearm. [34] While there was initially some limited contest about these details by the Second Respondent, that contest was subsequently withdrawn and the proceedings before the Tribunal proceeded on the basis that the above details were not in dispute. Fresh evidence [35] The Applicant and the Second Respondent each seek leave to adduce fresh evidence. [36] The Tribunal has a discretion to grant leave to “adduce fresh, additional or substituted evidence (new evidence)” provided it is satisfied:10 (a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or (b) in the special circumstances of the case, it would be unfair not to allow the person to reduce the new evidence. If the Tribunal grants leave to adduce the new evidence, the review of the reviewable decision is by way of rehearing of the original evidence and the new evidence adduced. [37] The First Respondent made submissions that the Applicant’s request for leave is not sufficiently particularised.11The Applicant seeks to adduce evidence of:12 the entirety of the material disclosed by Superintendent Geoff K Sheldon pursuant to section 21(2) in the OCR114–22 Application…. The Applicant contends that this material is relevant to the current proceedings given that the two Applications are to be heard as one. [38] The Applicant submits in the circumstances of these proceedings it would be unfair not to allow fresh evidence to be adduced.13 This fresh evidence should extend to receiving evidence of the Second Respondent’s misconduct which is the subject of OCR114-22. Further, the First Respondent has continuing obligations to assist the Tribunal pursuant to s 21(1) of the QCAT Act. [39] The Applicant relies upon various passages in the decision of Judicial Member McGill SC in Wellington v Carless & Anor.14 [40] The Tribunal considers that the material in OCR114-22 might have some relevance to the issue of a sanction provided the Tribunal first comes to the conclusion that the reviewable decision is tainted by an error of fact, law or discretion infecting the decision. The Tribunal notes that the facts in OCR114-22 involve a finding made on 11 May 2022 that a disciplinary matter against the Second Respondent was substantiated and a disciplinary sanction was imposed. This was some years after the 10 CCA ss 219H, s 219Q(2). 11 First Respondent’s Submissions filed on 22 October 2024 at paragraph 51. 12 Applicant’s Submissions filed 5 November 2024 at paragraph 45. 13 Applicant’s Notice of Contentions filed 4 July 2024 at paragraph 58. 14 [2022] QCATA 143, [19]–[20] (‘Wellington v Carless & Anor’). -- 8 of 30 -- 9 Applicant filed the Application for a review in these proceedings. The Tribunal is persuaded by, and adopts, the Applicant’s submissions relating to the passages referred to in the decision of Judicial Member McGill SC in Wellington v Carless & Anor. The Tribunal is satisfied that in the circumstances of these proceedings it would be unfair not to allow the Applicant to adduce the new evidence in the material in OCR114-22. The Tribunal is also satisfied that it could not have been reasonably expected that the Applicant would have been aware of the facts and circumstances in OCR114-22 until some date following the filing of the application. The Tribunal grants leave to the Applicant to adduce that new evidence in OCR114-22. [41] The Second Respondent filed an Application for miscellaneous matters in the Tribunal seeking the Tribunal’s leave to adduce fresh evidence relating to a statement by the Second Respondent and statements by other officers relating to character evidence. [42] The statement from the Second Respondent relates to achievements he has made in his career and an update of his service history through to March 2021. Some of these events occurred after the Applicant filed the Application for a review of a decision. The other fresh evidence relates to several character references in support of the Second Respondent. [43] The First Respondent was concerned that the Second Respondent’s intention would be to adduce evidence closer to the hearing and submitted that any such evidence should be restricted to containing information from after the decision of the First Respondent and would focus on four broad categories.15 [44] There is no suggestion of prejudice to the Applicant or to the First Respondent by including this fresh evidence in the proceedings. Provided the threshold issue relating to jurisdiction is satisfied, the Tribunal considers that this fresh evidence could well be relevant to the issue of a sanction. In the circumstances the Tribunal is satisfied that it would be unfair to the Second Respondent not to grant leave to adduce the fresh evidence in his statement and the several character references. The Tribunal grants leave to the Second Respondent to adduce that evidence in these proceedings. OCR114-22 [45] The Tribunal has already granted leave for the material in OCR114-22 to be included as new evidence in these proceedings. It is important to remember that although those proceedings are still pending in the Tribunal and are yet to determined, the relevant facts relating to the disciplinary determination and sanction imposed in OCR114 – 22 will need to be treated with careful attention that the Second Respondent has those matters under review in the pending proceedings.. The facts in OCR114–22 stated below. [46] On 11 May 2022 Superintendent Geoff K Sheldon, Gold Coast District of the QPS, made a finding that a disciplinary matter against the Second Respondent was substantiated and imposed a disciplinary sanction of reprimand. [47] According to the decision of 11 May 2022 the disciplinary matter related to the following conduct of the Second Respondent: That on 30 August 2021 at Ormeau your conduct did not meet the standard the community reasonably expects of a police officer in that you failed to exercise 15 First Respondent’s Submissions filed 5 July 2024 paragraphs 5–8. -- 9 of 30 -- 10 high standards of personal and professional conduct when having official dealings with a victim of domestic violence. [48] In a Disciplinary Proceeding Notice dated 11 April 2022 the Second Respondent was advised of “Further and Better Particulars” of the alleged conduct. In summary, those Particulars asserted that the Second Respondent, in company with a Constable, attended a property at Ormeau in relation to a call for service relating to domestic violence. The Second Respondent is alleged to have made inappropriate statements to an aggrieved person named in a Temporary Domestic Violence Protection Order and implied that domestic violence protection was being used as a weapon against another person and that he failed to act with fairness, reasonable compassion, courtesy, respect and dignity in his professional duties towards the aggrieved person. [49] On 4 May 2022 the Second Respondent responded to the Disciplinary Proceeding Notice of 11 April 2022 [50] On 11 May 2022 Superintendent Geoff K Sheldon decided that the disciplinary matter against the Second Respondent was substantiated and imposed a disciplinary sanction of reprimand. [51] On 26 May 2020 the Crime and Corruption Commission filed in the Tribunal an Application to review the decision of 11 May 2022. That Application was made on the basis the sanction imposed was wholly inadequate given the context of the inappropriate and unprofessional conduct within the serious context of a domestic violence matter. Other grounds for the review were also stated. [52] On 20 October 2022 Judicial Member McGill SC ordered that the proceedings in OCR235-20 be reheard together with the proceedings in OCR114-22. Judicial Member DJ McGill SC stated in the decision:16 Given the history of this matter, it would not be appropriate for the two proceedings to be consolidated, but I agree that they should be heard together… [53] On 24 January 2024 Senior Member Aughterson of the Tribunal directed that the proceedings in OCR235-20 and OCR114-22 be listed together for a one-day Tribunal Hearing in Brisbane at a time and date to be advised. [54] On 14 November 2024 the proceedings in OCR235-20 and in OCR114-22 were listed together for a hearing in the Tribunal. Parties’ Submissions Prior to the Willmott v Carless Decision Second Respondent’s Notice of Contentions of 3 November 2020 [55] The Second Respondent was suspended from duty between 4 November 2015 and 3 January 2020, a period of four years and two months.17 [56] On 3 January 2022 the Second Respondent’s suspension was revoked and he returned to work on a stand down order. Prior to returning to operational duties the Second Respondent was required to complete:18 16 Wellington v Carless & Anor [2022] QCATA 143. 17 Applicant’s Notice of Contentions filed 4 July 2024 at paragraph 2 18 Ibid paragraph 7. -- 10 of 30 -- 11 (a) recruit training in regard to all aspects of QPS operational skills and firearms training including the use of firearms for moving vehicles; (b) the QPS Pursuits and Driving Policy Online Products and a number of other relevant online learning products. [57] From 10 July 2020 the Second Respondent has returned to operational duty as a Senior Constable “without further issue arising.” He was required to perform every operational shift in his first 28 days with an officer at the rank of Senior Constable or above. Since then, he has been required to perform at least 50% of his shift with an officer of the rank of Senior Constable or above which subsequently progressed to him now supervising first year Constables during particular shifts. Since resuming to operational duties the Second Respondent has been mentored by a Sergeant who is overseeing his transition back into operational duties under a re-integration program.19 [58] The Second Respondent seeks an order from the Tribunal that the Application to review the First Respondent’s disciplinary decision be dismissed.20 Applicant’s Submissions filed 18 January 2021 [59] The Applicant made submissions in relation to: (a) the Tribunal’s task in these proceedings; (b) that the First Respondent did not produce all the evidence which supported Matter 1(a) and (b) facts which may be relied upon in support of the First Respondent’s findings; (c) in relation to Matter 1(b) the First Respondent provided a general summary of the facts relevant to proving this matter and proceeded to identify facts which may be relied upon in support of the findings made by the First Respondent. [60] The Applicant submitted that the First Respondent’s sanction of reprimand and the implementation of the management action to ensure that continued development of the Second Respondent’s knowledge and skills and to prevent a reoccurrence of similar conduct was inadequate taking into account: (a) the gravity and seriousness of the misconduct particularly having regard to serious failures by an experienced officer ignoring commands designed to preserve peace and good order and protection of all members of the community; and (b) that the sanction does not meet the relevant purposes of discipline, in particular the purposes of protecting the public and promoting and maintaining public confidence, and officers’ confidence in the police service. [61] The correct approach involved a number of considerations, namely: (a) the decision maker is entitled to act on evidence upon which a finding could have been made that there is a risk of the subject officer reoffending; (b) the Second Respondent can advance matters in mitigation and bears the onus of establishing that material on the balance of probabilities; 19 Ibid paragraphs 8–11. 20 Ibid page 4 paragraph 1. -- 11 of 30 -- 12 (c) a sanction involving the continued service of an officer but subject to treatment or supervision suggests that the officer is no longer fully in command of their professional resources and indicates that he is in fact at risk of further offending; (d) various statements by the Second Respondent were identical relating to the pursuit and the discharge of the service firearm.21 [62] It was submitted that the error made by the First Respondent was: (a) failing to have proper regard to the protective purposes in imposing a disciplinary sanction of reprimand disproportionate to the evidence; (b) insufficiently reflective of the seriousness of the misconduct and the danger to which members of the community were exposed; (c) the sanction did not address the failure on the part of the Second Respondent to uphold required standards despite his extensive years of service and training; (d) the reasons for the sanction did not address how the: (i) Second Respondent’s absence from duty due to suspension; and (ii) the sanction of reprimand and the requirement to undertake professional development; satisfied the protective function of discipline to prevent further misconduct on the part of the Second Respondent. [63] The correct and preferable decision on sanction was: (a) demotion to Constable 1.6 for 12 months; (b) requirement for the Second Respondent not be permitted to relieve in a higher position for a period of six months; (c) a six month period of mentoring by a senior officer to include the development of leadership abilities and operational decision making; (d) updated one on one training in contemporary QPS operational skills including policy on QPS firearms use for moving vehicles; (e) complete the Police Pursuits and Safe Driving Policy Online Learning Products. First Respondent’s Submissions filed 8 February 2021 [64] The First Respondent said the approach to this review is limited to addressing the procedures related to the disciplinary hearing and relevant statutory provisions. [65] After referring to several authorities the First Respondent said it cannot usefully add any additional submissions to those made by the Applicant. Second Respondent’s Submissions filed 2 March 2021 [66] The Second Respondent says that the disciplinary charge and relevant particulars in Matter 1(a), 1(b) and 1(c) and their substantiation by the reviewable decision of 9 July 21 Applicant’s Submissions filed 18 January 2021 at paragraph 39 pages 10–12. -- 12 of 30 -- 13 2020 are not in contest. The only issue in contest is whether the sanction imposed by the reviewable decision is the correct and preferable sanction.22 [67] The Second Respondent submits that the sanction in the reviewable decision of 9 July 2020 is the correct and preferable sanction as: (a) the Application to review the decision is unsustainable given the specific circumstances and mitigating factors of this case; and (b) the circumstances of the Second Respondent’s conduct, although serious, are not within the range of seriousness that warrants demotion particularly as he has completed all aspects of the sanction as well as being stood down or suspended from duty for a significant period; (c) a demotion would be purely punitive rather than protective; (d) his personal23 and professional circumstances were properly balanced against the purposes of the discipline proceedings. [68] It is also submitted on his behalf that the delay in his case “is significant and unexplained.” It is said that this incident took over five years to resolve, while the Second Respondent was suspended from duty and that: the delay has been entirely unacceptable and the actions of the QPS itself in regard to its handling of this matter has not met the standard of conduct the community reasonably expects from a police service. [69] It is submitted that the delay has “obviously caused Wellington to suffer from stress and hardship” and his career has continued to be stalled. [70] The imposition of a sanction of demotion in rank of any type is not the correct and preferable sanction for the circumstances of these proceedings according to the Second Respondent’s submissions. Reference was made to the case of McKenzie v Acting Assistant Commissioner Tony Wright24 where Judicial Member Thomas said: The effect of demotion must be recognised as very severe. Apart from the disgrace associated with it, the demotion is accompanied by what is on any view a serious financial sanction. [71] The only other decision the Tribunal has previously considered is Crime and Corruption Commission v Acting Assistant Commissioner MJ Keating & Anor (‘Sperlings Case’).25 However, it is submitted that Sperlings Case is distinguishable as in those proceedings the officer was not subject to extraordinary suspension and standdown or the subject of any restorative measures. [72] It is also submitted the Second Respondent has served with distinction in a military career and then 20 years of policing. There is “no reason to think that will not continue”. The sanction imposed by the reviewable decision in these proceedings is the correct and preferable sanction and demotion in rank is not necessary. The Application to review the decision should be dismissed. 22 Second Respondent’s Submissions filed March 2021 at paragraph 4. 23 Ibid paragraphs 19–20. 24 [2011] QCATA 309. 25 [2015] QCAT 176. -- 13 of 30 -- 14 Parties Submissions Subsequent to the Willmott v Carless Decision First Respondent’s Submissions filed 5 July 2024 [73] The First Respondent has submitted that:26 the task for the Tribunal is to come to the correct and preferable decision in accordance with section 20 of the QCAT Act [74] It was also submitted that the Applicant’s Submissions filed prior to the Willmott decision in respect of the task of the Tribunal is now incorrect.27 Applicant’s Submissions filed 1 October 2024 [75] The Applicant’s submissions identified the nature of the hearing before the Tribunal following the Willmott decision and the necessity to demonstrate some factual, legal and discretionary error. However, the Applicant also submitted that the Willmott decision dealt with s 20(2) of the QCAT Act and it remains the purpose of a review before the Tribunal to reach an outcome which is correct and preferable as provided for in s 20(1) of the QCAT Act. [76] The Applicant submits that in the decision being reviewed dated 9 July 2020, an error was made in that the decision-maker acted on a wrong principle of law and the sanction was inadequate to address the misconduct alleged. [77] The wrong principle of law was said to be an incorrect interpretation of the law and failure to have regard to the purpose of discipline in s 7.1 of the PSAA which, it was said, is mirrored in s 219A of the CCA. The submission is there was no reference in the decision under review to either of those provisions nor the need to protect the public and to uphold the ethical standards within the Service. The error was by interpreting the protective functions of discipline as being related to the need to protect the reputation of the QPS, rather than to protect the public from police officers who commit misconduct.28 [78] The legal error referred to by the Applicant can be summarised as follows: (a) the reviewable decision does not refer to the purpose of discipline in s 7.1 of the PSAA (or for that matter in s 219A of the CCAA) and specifically does not refer to the need to protect the public and to uphold the ethical standards within the service;29 (b) by interpreting the protective function of discipline as being related to the need to protect the reputation of the QPS; rather than to protect the public from officers who commit misconduct the decision under review is affected by a legal error.30 [79] The Applicant submits that the First Respondent’s decision should be set aside because of the incorrect interpretation of the purpose of discipline and it was inadequate to achieve that purpose of protecting the public from officers who commit misconduct, nor does it uphold the ethical standards of the QPS. 26 First Respondent’s Submissions filed 5 July 2024 at paragraph 15. 27 First Respondents Submissions filed 5 July 2024 at paragraph 15, 28 Applicant’s Submissions filed 1 October 2024 at paragraphs 17–29. 29 Ibid paragraph 20. 30 Ibid paragraph 24–5. -- 14 of 30 -- 15 [80] The sanction imposed by that decision, it is submitted, is inadequate because it does not have regard to the seriousness of the Second Respondent’s action and the need for specific deterrence. The relevant facts in these proceedings demonstrate, it is submitted, the Second Respondent’s limited insight particularly in regard to his seeking the discontinuance of the particulars in Matter 1(a). His conduct was inherently dangerous and involved the failure to appropriately supervise junior officers, as well as the failure to comply with the policies of the QPS and with directions of the District Duty Officer. The sanction of reprimand does not reflect the clear risk of serious injury or death, nor does it reflect the underlying behavioural issues and the likelihood that the Second Respondent would commit further action of misconduct. The Sheldon case has some similarity to these proceedings notwithstanding it involved domestic violence rather than police pursuit and use of firearms. The Applicant submits:31 The correct and preferable decision is one of probation across both OCR235-20 and OCR114-22. First Respondent’s Submissions filed 22 October 2024 [81] The First Respondent said the approach in these Submissions was to address the procedures related to the disciplinary hearing and relevant statutory provisions. Various references were made to the Willmott decision and to the previous submissions of the Applicant but concluded by stating:32 the Tribunal is bound by the decision of the Court in Willmott. The Court’s decision was that the enabling provisions for review under the CC Act “prevailed” over section 20 of the QCAT Act, without any statement of qualification that subsection 20(1) continued to operate in applications brought pursuant to the CC Act review enabling provisions. [82] The conduct of the review, it was submitted, was that if a legal, factual or discretionary area was demonstrated, the Tribunal had a discretion to exercise and to perform the functions in s 24 of the QCAT Act. [83] As to whether there was a “legal error” (as submitted by the Applicant) the First Respondent’s Submissions referred to the use of the Standard in the decision under review and makes the concession that:33 The first respondent does not make express reference to section 7.1 of the PSAA or section 219A of the CC Act in relation to his decision on sanction and proposed sanction. However, the first respondent clearly details, and has regard to, the purposes of discipline.34 [84] Submissions were made in response to the Applicant’s contention that the First Respondent misinterpreted the “protective function” of discipline by interpreting that protection to mean the “reputation” of QPS “rather than to protect the public from police officers who commit misconduct.” The First Respondent submitted: 31 Ibid paragraph 54. 32 First Respondent’s Submissions filed on 24 October 2024 at paragraph 22. 33 First Respondent’s Submissions filed on 24 October 2024 at paragraph 35. 34 First Respondent is reliant upon the s 21(2) material provided to the Tribunal at pages 197–202. -- 15 of 30 -- 16 (a) disciplinary function is protective and not punitive and listed a substantial number of “purposes of” discipline including the protection of the reputation of the QPS; (b) the Applicant appears to take a narrow view of how the “protection of the public” is achieved from the function of discipline. Discipline is necessary to promote and maintain public confidence in the Service; (c) damage to the reputation of the QPS through the conduct of its members erodes public confidence; (d) the fact that the reputation of the QPS was a factor in consideration of the “purposes of” discipline does not give rise to an inference that the First Respondent has interpreted the meaning of the “protective function” of discipline to mean solely the “protection of the reputation of the QPS”. [85] Whether the sanction imposed in the reviewable decision was inadequate, the First Respondent says that the range of sanctions which can be imposed in accordance with s 7.34 of the PSAA are relatively limited. The submission is made that in the exercise of the discretion in the sanction imposed, it wasn’t either excessive or inadequate. [86] While the Tribunal is also hearing the other proceedings in OCR114-22 (together with these proceedings), the First Respondent submits:35 Each application must be treated as a discreet application, and any powers exercised by the Tribunal also be discreet to each application In the circumstances, the Tribunal would remain bound to make separate orders in accordance with section 24(1)(b) in respect of the Applications in OCR235- 20 and in OCR114-22 Second Respondent’s Submissions filed 24 October 2024 [87] The Second Respondent relies upon earlier submissions on 1 March 2021 and now takes into account the principles stated in the Willmott decision. The Second Respondent confirmed that the particulars of the discipline charge relating to the relevant conduct are not in contest in these proceedings. The only issue in context is the issue of sanction. [88] The Second Respondent was concerned with the delay of nearly 10 years which included the decision of the QPS being made over four years ago and the proceedings have been before the Tribunal for four years. He contends that because of the delay it is unlikely the true purposes of discipline are still capable of operating. [89] The Second Respondent contends that the onus rests upon the Applicant to establish error in accordance with the Willmott decision. However, “there should not be an unreasonable critique of the reasons provided in administrative proceedings” and the Applicant’s attempt to establish an error is unfair to the QPS decision maker. The Second Respondent submits the Applicant’s grounds of review have no merit and the Application should be dismissed. [90] The Second Respondent submits that no error can be found in the reviewable decision made by the First Respondent to impose a reprimand. 35 First Respondent's Submissions filed on 24 October 2024 at paragraph 46. -- 16 of 30 -- 17 [91] The submissions also referred to the character reference evidence to the effect that the Second Respondent is of good character and prior to joining QPS served in the Australian Military with distinction. It is appropriate that leniency was afforded to the Second Respondent as his conduct was a case of poor judgement and excitement, he has a positive attitude to his responsibilities and demonstrates strong work ethic. He has also engaged in professional development strategy and had undertaken a mentoring program. Is there a factual, legal or discretionary error in the First Respondent’s decision [92] The Applicant raises two grounds of error, namely the First Respondent: (a) acted on an incorrect interpretation of the law; and (b) failed to have regard to the purpose of discipline. Both of those grounds we considered separately below. An Incorrect Interpretation of the Law [93] The Applicant submits that the legal error arose because the protective purpose of discipline stated in s 7.1 of the PSAA, which is “mirrored to an extent” in s 219A of the CCA, was interpreted by the First Respondent as limited to the protection of the reputation of the QPS, rather than to protect the public from police officers who commit misconduct.36 The Applicant in support of this submission: (a) referred to First Respondent’s decision under review in these proceedings at page 3;37 and (b) the First Respondent’s application of the SELF Test rather than the relevant provisions of the PSAA.38 [94] The incorrect interpretation is said to have related to the purpose of discipline and mistakenly considered the protective element related to protecting the reputation of the QPS. The Applicant identified various passages of the reviewable decision referring to the purpose of discipline. It is unnecessary to repeat those passages here.39 [95] The First Respondent has, or alternatively has implicitly conceded that the reviewable decision did not specifically refer to the purpose of discipline in s 7.1 of the PSAA or those provisions mirrored in s 219A of the CCA.40 The First Respondent explained this on the basis that it clearly details, and has had regard to, the purposes of discipline41 as the reviewable decision: (a) the “disciplinary function is protective and not punitive” but does not expand on this;42 36 Applicant’s Submissions filed 4 July 2024 at paragraphs 18, 19, 24, 25, 28 and 29. 37 Applicant’s Submissions filed July 2024 at paragraph 26 38 Ibid paragraph 27. 39 Passages of the reviewable decision referred to are contained in the Applicants Submissions filed 4 July 2024 at paragraphs 20–8. 40 First Respondent’s Submissions filed 22 October 2024 at paragraph 35. 41 Ibid paragraph 35. 42 Ibid paragraph 37. -- 17 of 30 -- 18 (b) listed as substantial number of “purposes of discipline’, including the protection of the reputation of the QPS;43 (c) the protection of the public includes a properly administered QPS.44 [96] The main purpose of the discipline process for officers in the QPS is provided in s 7.1 of the PSAA, which states: The main purposes of this part are— (a) to provide for a system of guiding, correcting, rehabilitating and if necessary, disciplining officers; and (b) to ensure appropriate standards of discipline are maintained within the service to— (i) protect the public; and (ii) uphold ethical standards within the service; and (iii) promote and maintain public confidence, and officers’ confidence, in the service [97] In considering the interpretation of s 7.1 it is significant to note that it refers to “purposes” which are guiding, correcting, rehabilitating and if necessary, disciplining officers. The repeated use of the word “and” in s 7.1(a) and (b) means that for each purpose in s 7.1(a) it is necessary to have regard to or apply the cumulative criteria in s 7.1(b)(i), (ii) and (iii). In these proceedings the First Respondent was concerned with the purpose of “disciplining” an officer against whom a disciplinary matter had been substantiated. It was necessary for the First Respondent in the decision to comply with the requirements of section 7.1 to ensure appropriate standards of discipline are maintained within the service by considering or having regard to each of the cumulative criteria to: (a) protect the public; and (b) uphold ethical standards within the service; and (c) promote and maintain public confidence, and officers’ confidence in the service [98] The First Respondent’s decision under review did not have regard to the protection of the public which was identified in the Applicant’s submissions. While the decision contains references to the public’s confidence, that is not the same concept as a requirement to “protect the public”. If that was not the case, then there would be a lack of distinction between protection of the public in s 7.1(b)(i) and the concept of public confidence in s 7.1(b)(iii). The decision in considering what sanction should be imposed does not consider or have regard to any element relating to protection of the public. The Tribunal finds that in making the decision under review the First Respondent did not consider or have regard to the protection of the public to ensure appropriate standards of discipline within the service. The Tribunal further finds that the First Respondent made an error of law in failing to comply with s 7.1(b)(i) of the PSAA. 43 Ibid. 44 Ibid paragraph 39. -- 18 of 30 -- 19 [99] The First Respondent’s decision under review did on a single occasion refer to ethical requirements when stating:45 In doing so, you must demonstrate and promote behaviours consistent with the public sector and QPS values and standards of practice and behave in an honest, ethical, impartial and professional manner. [100] There are other references to the “Standard of Practice” relating to the officer’s conduct not “adversely reflecting on the Queensland Police Service” and the other statements of proper standard of behaviour, but these matters were not discussed in the context of upholding ethical standards. If the Tribunal takes a very broad approach to these references and infers that the intention was to have regard to upholding ethical standards then the Tribunal would, somewhat reluctantly, come to the conclusion that the First Respondent has dealt with the criteria in s 7.1(b)(ii) in considering the sanction. On this basis the Tribunal is satisfied that the First Respondent complied with the relevant criteria to uphold ethical standards and is not satisfied that an error of law has occurred in respect of s 7.1(b)(ii). [101] The third component of ensuring appropriate standards of discipline are maintained within the service requires a consideration or regard to promoting and maintaining public confidence, and officers’ confidence in the service. The Tribunal is satisfied that throughout the decision of the First Respondent commencing in that part of the decision headed “The reasons for my decision are” contains a number of references to promoting public confidence in the service. To a lesser extent, but nevertheless to a sufficient extent, that decision on sanction considered or had regard to the public’s and officers’ confidence in the service. On this basis the Tribunal is satisfied that the First Respondent complied with the relevant criteria in s 7.1(b)(iii) of the PSAA and is not satisfied that an error of law has occurred. Failed to have regard to the Purpose of Discipline [102] The Applicant’s Submissions refer to the decision of the First Respondent interpreting the protective function of discipline as being related to the need to protect the reputation of the QPS, rather than to protect the public from officers who commit misconduct. The Applicant intends that earlier references in the DDFPN decision of 11 June 2020, containing references to the Standard of Practice within the Human Resources Policies, the Code of Conduct for the Queensland Police Service 2011, sought to, amongst other matters:46 ensure that embarrassment is not brought upon the Queensland Police Service or its membership because of a lack of understanding of the Queensland Police Services standards of contact and; promote a positive image of the Queensland Police Service and its members Similarly, the reference to the SELF Test in the DDFPN document was concerned with maintaining public confidence in police officers and the Police Service and to “protect the reputation of the Police Service”. [103] The First Respondent submits that he:47 45 First Respondents Statement of Reasons dated 9 July 2020 page 3, paragraph 3 46 Applicant’s Submissions dated 1 October 2024 at paragraphs 25, 26. 47 First Respondent’s Submissions filed 22 October 2024 at paragraph 35 -- 19 of 30 -- 20 clearly details, and has regard to, the purposes of discipline. [104] He also contends that the “narrow view” taken by the Applicant does not take into account:48 the protection of the public necessarily includes an efficient, properly administered and functioning Service. Discipline is necessary to promote and maintain public confidence in the Service. It should not be contentious that damage to the reputation of the QPS through the conduct of its members erodes public confidence. The fact that the first respondent considered the damage to the reputation of the QPS as a factor of consideration of the “purposes of discipline” does not give rise to the inference that the first respondent has interpreted the meaning of the “protective function” of discipline to mean, it seems from the applicants submissions, solely the “protection of the reputation of the QPS” rather than protection from police officers who engage in misconduct. [105] The Applicant’s argument that the First Respondent’s decision failed to have regard to the purposes of discipline is based on s 7.1 of the PSAA (as well as s 219A of the CCA) relating to the need to protect the public and to uphold ethical standards within the Service.49 The First Respondent’s decision did strongly reinforce the concept of the appropriate conduct expected of QPS officers and the need to protect the reputation of the QPS. By way of example, the First Respondent made statements in the decision that he was mindful of the need to send a clear message to the Second Respondent and all members of the Service concerning inappropriate behaviour and then relied upon the following statements in the “Standard of Practice:50 Members are not to act in a manner which will adversely reflect on the Queensland Police Service generally or on themselves as members of the Service. [106] Had the First Respondent stopped at that point of the decision of 9 July 2020, then the Tribunal would probably have been persuaded to accept the Applicant’s submissions. However, the decision continued to refer to other matters such as: There must be “public confidence” there are proper standards of conduct in the QPS. Making ethical decisions within the Service is an absolute necessity in order to gain the confidence of the community we serve. The community always place a tremendous degree of expectation on police officers to act with integrity. The ability of police officers to perform their duty is dependent upon community trust, support and willing cooperation. To safeguard the community’s trust, the Service must be responsible to the community and accountable for what we do and say… [107] The Applicant’s submission, that there was a failure to have regard to the purpose of discipline because of an imbalance in the First Respondent’s decision relying on the conduct of police officers and the need to protect, or not adversely reflect on, the QPS 48 Ibid paragraphs 38, 39. 49 Applicant’s Closing Submissions at the Hearing, copy filed on 20 December 2024 at paragraph 47. 50 First Respondent’s Decision of 9 July 2020 at pages 2, 3. -- 20 of 30 -- 21 generally or its members, is not demonstrated by the full content of that decision. It is clear from the terms of the decision that the First Respondent did attempt to balance the upholding of ethical standards within the service and the promotion and maintenance of public confidence, and officers’ confidence, in the service as has been discussed in the preceding paragraphs. Where the First Respondent did not have regard to the purpose of discipline, was his failure to deal with the concept of protection of the public as required in s 7.1(b)(i) of the PSAA. In that context, the First Respondent’s decision contained an error of law in failing to have regard to the purpose of discipline. [108] As there is a finding of error of law in regard to noncompliance with s 7.1(b)(i) of the PSAA, the Tribunal, according to the Willmott decision, has the necessary power to undertake a review of the decision in these proceedings and is entitled to proceed with the review in accordance with s 219Q of the CCA. While there has been no specific discussion in relation to s 219A of the CCA, it has the same, or similar criteria, relating to the protection of the public and the error of law referred to above would also relate to s 219A(a) of the CCA. As to which of the available functions in s 24(1)(a), (b) and (c) of the QCAT Act are to be exercised depends upon the Tribunal’s consideration of the adequacy of the sanction imposed by the First Respondent’s decision. Was the Decision on Sanction Inadequate [109] The sanction imposed was to reprimand the Second Respondent including implementation of a management action for him to undertake professional development relating to pursuits, use of force (including use of firearms/shooting at vehicles), and supervision of junior officers. [110] The Applicant submits that the sanction imposed is inadequate as:51 (a) the First Respondent acted on an incorrect interpretation of the purpose of discipline, and as such, the sanction was inadequate to achieve the purpose of discipline by protecting the public from officers who commit misconduct and the need to uphold the ethical standards of the QPS; (b) having regard to the seriousness of the Second Respondent’s action, and the need for specific deterrence. [111] The Applicant submits that the Second Respondent demonstrated “limited insight” into his actions by seeking the discontinuance of Matter 1(a), denying he deliberately refused to comply with a direction in Matter 1(b) and denying liability in Matter 1(c).52 It was further submitted that:53 (a) his conduct was inherently dangerous and involved the failure to appropriately supervise the junior officers; (b) he failed to comply with the policies of the QPS; and (c) he failed to comply with directions from the District Duty Officer. 51 Applicant’s Submissions filed for July 2024 at paragraphs 31, 32. 52 Ibid paragraph 35. 53 Ibid paragraph 36. -- 21 of 30 -- 22 [112] The Applicant contends that the sanction imposed by the First Respondent failed to reflect the seriousness of the Second Respondent’s conduct. Nor does it reflect the:54 clear risk of serious injury or death. [113] The Applicant also submits that the sanction failed to reflect the underlying behavioural issues which led to the Second Respondent’s misconduct and also contends it is relevant to consider the likelihood that the Second Respondent would commit further acts of misconduct if a sanction of sufficient deterrence was not imposed. [114] The Applicant submits that the sanction imposed in the reviewable decision was inadequate to specifically deter the Second Respondent from further instances of flawed decision and who presents with:55 a lack of appreciation for the responsibilities which come with being a police officer [115] The Applicant submits that the sanction in the reviewable decision should be set aside and, having regard to the purpose of discipline, a sanction that reflects the seriousness of the misconduct and deters further instances of misconduct requires that the Second Respondent be demoted for a period of 12 months. [116] The First Respondent submits that the task of establishing whether the sanction was manifestly inadequate or excessive given the range of sentences available in s 7.34 of the PSAA will be a relatively more onerous task to identify an error in the exercise of the discretion. It is also submitted that these proceedings and those in OCR114-22 while being heard together require a separate consideration and decision on sanction of those applications which involve different “reviewable decisions”. [117] The Second Respondent has made submissions to the effect that a reprimand in the circumstances of these proceedings is adequate and the Application to review the decision should be dismissed. Relevant General Principles on Sanctions [118] The main purpose of the discipline process for officers in the QPS is to ensure appropriate standards of discipline are maintained within the service to:56 (a) protect the public; and (b) uphold ethical standards within the service; and (c) promote and maintain public confidence, and officers’ confidence, in the service. These considerations are also reflected in the CCA in relation to the purpose of disciplinary proceedings.57 54 Ibid paragraph 40. 55 Ibid paragraphs 44, 45. 56 PSAA s 7.1. 57 CCA s 219A. -- 22 of 30 -- 23 [119] There is a range of disciplinary sanctions which can be imposed as provided in s 7.34 of the PSAA. The sanction imposed by the First Respondent in the reviewable decision is a “reprimand” which is at the lowest end of that range. [120] Provision is made for a “prescribed officer” to decide disciplinary sanctions to be imposed having regard to the following matters:58 (a) any considerations provided for in a guideline made under s 7.44; (b) the subject officer’s disciplinary history and service history; (c) any professional development strategies imposed on, or completed by, the subject officer in relation to the ground for disciplinary action. [121] There are other provisions59 relating to imposing a sanction which will be referred to and discussed later in the event that any of those provisions become relevant and necessary. Second Respondent’s Conduct [122] The Second Respondent has had a disciplinary matter substantiated relating to his improper conduct on 17 May 2015. [123] That improper conduct in effect occurred on the one occasion but over a period of time on 17 May 2015. It was not a persistent and repeated course of conduct over a number of days or months. It occurred on one occasion. [124] On that one occasion the improper conduct consisted of several facets of conduct in the course of his duty as an officer of the QPS involving: (a) during a pursuit instructed a junior constable to drive in a manner which posed an unacceptable risk to themselves, other road users and members of the public; (b) failed to comply with operational procedures and directions to abandon the pursuit; (c) discharged his service issue firearm without justification. [125] There are “Further Particulars” of that improper conduct in relation to (a), (b) and (c) above set out in the Disciplinary Proceeding Notice dated 9 April 2020. [126] While the Second Respondent made some initial challenges to the improper conduct in (a), (b) and (c), he did not persist with those challenges and by the time the Hearing was conducted in the Tribunal those challenges had been withdrawn. As the improper conduct, including the “Further Particulars”, were common ground and accepted by the parties it was unnecessary for the Tribunal to decide any controversy in respect of the improper conduct. As a result, the Tribunal makes a finding that the improper conduct of the Second Respondent in these proceedings was the conduct in (a), (b) and (c) together with the “Further Particulars”. The Tribunal accepts and agrees with the First Respondent’s decision that the improper conduct constitutes a disciplinary matter against the Second Respondent and is substantiated. The Tribunal makes a finding that the improper conduct is a disciplinary matter and is substantiated. 58 PSAA s 7.35(3). 59 Such as the sanctions of Probation (s 7.36), Comprehensive transfer (7.37) and others. -- 23 of 30 -- 24 [127] That improper conduct involved a number of various serious considerations including: (a) an unacceptable risk to himself, the junior officer accompanying him, other officers, other road users and members of the public at night time in the course of the pursuit of the stolen vehicle; (b) disobeying directions from COMCO and a Senior Officer to abandon the pursuit; (c) failing to comply with operational procedures; (d) instructing the junior officer to deliberately drive the police vehicle into the rear of the stolen vehicle; and (e) discharging his service issue firearm on two occasions at the stolen vehicle without justification and when that vehicle did not pose an immediate threat to another officer. [128] Each of the matters (a), (b), (c), (d) and (e) by themselves would constitute very serious misconduct on the part of an officer of the QPS in the performance of his duty. Collectively, those matters compound the seriousness of the improper conduct which needs to be properly taken into account in imposing a sanction. Not only is the improper conduct extremely serious, but it occurred in a very deliberate, disobedient and wilful way by the Second Respondent without any care for the harm, injury or adverse consequences for himself, the junior officer driving the police vehicle, other officers, other road users and members of the public generally. During a discipline interview, when asked why he did not terminate the pursuit, the Second Respondent stated: I agree I should have, I accept full responsibility for my actions and my directions to (the junior officer). [129] The failure to take responsibility during the pursuit compounds the seriousness of the improper conduct. The Tribunal makes a finding that the improper conduct was extremely dangerous and serious in circumstances where rather than taking responsibility as the Senior Officer in the police vehicle involved in the pursuit, he deliberately disobeyed and wilfully pursued his own agenda in the pursuit in defiance of procedures, instructions from Senior Officers to abandon the pursuit and without caring about the consequences for others including members of the public (the serious misconduct). [130] The serious misconduct also reflects adversely on the Second Respondent while in a command position in the vehicle showing he lacked an appreciation of any adverse effects that could cause injury or death to other persons. His conduct was inherently dangerous. What Sanction should be Imposed [131] As has already been referred to, the purpose of disciplining officers is to ensure appropriate standards of discipline are maintained within the service to protect the public, uphold ethical standards and promote and maintain public confidence, and officers’ confidence, in the service. [132] The range of disciplinary sanctions provides to the Tribunal the requirement to identify the correct and appropriate sanction. -- 24 of 30 -- 25 [133] In arriving at the correct and appropriate sanction in these proceedings the Tribunal will take into account a number of considerations. “The serious misconduct” discussed above, suggests that the sanction should not be one at the bottom of that range of sanctions. That misconduct also demonstrates a complete lack of judgement, decision-making and insight by the Second Respondent in performance of high-risk police duties. His decision-making and responsibilities so far as it affects junior officers are completely lacking in the circumstances of the intense police action in this pursuit of a stolen vehicle and the need to apprehend offenders. There has to be considerable concern about his ability as a Senior Constable to supervise and make decisions for junior officers. The same comments apply about his lack of ability to take responsibility and make decisions which could have an adverse consequence for members of the public including other road users. Rather, a sanction that reflects the very serious nature of that misconduct is required. [134] The personal circumstances of the Second Respondent should also be taken into account. He has served in the Australian Army for a number of years with distinction. Following his discharge from the Army he was sworn in as a police officer in April 1999. Until 17 May 2015 he had carried out his duties as an officer in the QPS with distinction and had not been the subject of any prior disciplinary proceedings. The Tribunal notes that in the decision of the First Respondent of 9 July 2020, the Second Respondent is referred to in these terms: Whilst it is clear you are a capable police officer, your lack of appreciation for the responsibilities which come with being a police officer lead to flawed decisions. [135] Since May 2015 the Second Respondent has been the subject of a number of personal and professional circumstances including being stood down and subsequently suspended from duty for a lengthy period until January 2020, the subject of criminal charges which have been unsuccessful, and the latest charge being permanently stayed. He has had these disciplinary proceedings in the Tribunal since August 2020. [136] The Second Respondent made submissions about the effect of delay that has occurred since the events of May 2015. Insofar as he is concerned with delay of these proceedings in the Tribunal, his submissions do not take into account or refer to the fact that the Tribunal provided a hearing in these proceedings on 23 March 2021 which decision the Second Respondent appealed to the Appeal Tribunal, and these proceedings (as well as OCR114-22) were adjourned pending the Court of Appeal decision of 24 June 2024 in Willmott v Carless.60 [137] The Tribunal will also take into account that the Second Respondent has participated in management action to ensure continued development of his knowledge and skills and to prevent a re-occurrence of similar conduct by completing professional development relating to pursuits, use of force (including use of firearms/shooting at vehicles) and supervision of junior officers. The Tribunal is also mindful of the fact that the Second Respondent has, during his police career, participated in other training and development programs provided by QPS. 60 [2024] QCA 115. -- 25 of 30 -- 26 [138] There are a number of personal character references concerning the Second Respondent. He is well supported by those references as being a capable and efficient officer of the QPS. [139] The Applicant has submitted that the Second Respondent has already served a period of demotion for 12 months as a result of the review decision previously made by the Tribunal.61 Consequently, the Second Respondent would have been the subject of a reduction in salary as a result of that demotion. It is unfortunate that neither of the other parties have raised this issue in their submissions. Further details of the demotion particularly relating to the date of commencement and the date of conclusion of the demotion period would have been useful to have in evidence before the Tribunal. Further comment will be made below about this issue if the disciplinary sanction of 9 July 2020 is set aside. [140] The Applicant obtained leave for new evidence to be given relating to the materials in OCR114-22. These proceedings were heard together with OCR114-22 in which a decision is yet to be made by the Tribunal pending the parties request to make further submissions in OCR114-22 following the delivery of the Tribunal’s decision in these proceedings. The significance of the evidence in OCR114-22 relates to the Applicant’s submissions that the sanction in these proceedings should take into account the propensity for the Second Respondent to commit further disciplinary matters while he remains an officer in the QPS. 0CR114-23 is evidence of that propensity although the disciplinary determination and sanction remain the subject of a pending review in the Tribunal. With that limitation, that evidence will be taken to account in the determination of the sanction. [141] While there are mitigating factors in favour of the Second Respondent, they do not override the very serious nature of the misconduct established in these proceedings. Proper weight has to be attached to the conduct and the mitigating factors but in the Tribunal’s assessment the serious misconduct far outweighs the mitigating factors. The Tribunal is concerned that the sanction to be imposed should have regard to the need for the protection of the public but also have the effect of upholding ethical standards for officers and promote and maintain confidence in the QPS by the public and also officers. The sanction imposed needs to ensure that appropriate standards of discipline are maintained within the service. Having considered these matters the Tribunal is not satisfied that a reprimand pursuant to section 7.34 of the PSAA is in anyway sufficient to achieve the purposes of discipline provided for in section 7.1. The Tribunal considers that a reprimand is wholly insufficient for the purposes of discipline under the PSAA and the CCA. The Tribunal makes a finding that a sanction of reprimand is so far out of the range of sanctions appropriate for the serious misconduct and other circumstances in these proceedings as have been referred to above and the reprimand sanction should be set aside and a sanction substituted pursuant to s 24(1)(b) of the QCAT Act. [142] The Tribunal has considered the range of other sanctions in s 7.34. In doing so, the Tribunal has been referred to the decision in Crime and Corruption Commission v Acting Assistant Commissioner MJ Keating & Anor62 (‘the Sperling decision’). In those proceedings the officer was on traffic duty at night on the Bruce Highway to intercept vehicles identified as stolen by an Automatic Number Plate Recognition 61 Applicant’s Closing Submissions at the Hearing, copy filed on 20 December 2024 at paragraph 80. 62 [2015] QCAT 176. -- 26 of 30 -- 27 Unit. Just after midnight an approaching car which might have been stolen did not stop and the officer threw his torch at the car as it passed through the interception point. The torch was later found inside the vehicle, which was stolen. A short while later a second vehicle approached which might have been stolen and the officer stepped on the road to direct the car to stop, but the car did not stop. The officer drew his service firearm and fired a number of bullets at the car hitting the driver’s side rear door and rear of the car. The officer was charged with two counts of improper conduct: (a) using an inappropriate use of force option; and (b) recklessly discharging his service firearm at a vehicle. [143] The Tribunal found that the officer’s conduct was serious and that there were mitigating factors including that his brother-in-law who was an officer was killed while on traffic duty. The Crime and Corruption Commission conceded that there is a substantial feature of mitigation and that the officer’s demotion should be wholly suspended for a period of 12 months on conditions. [144] In considering the appropriate sanction, the Second Respondent’s misconduct was greater than and exceeded the misconduct in the Sperling case. This is because it not only involved the unauthorised use of a service firearm, but the Second Respondent’s misconduct also included additional elements involving instructing a junior constable to drive in a manner which posed an unacceptable risk and failing to comply with operational procedures and directions to abandon the pursuit. Any demotion of the Second Respondent for a period of less than 12 months would not satisfy the purposes of discipline in the PSAA and would not be consistent with the Sperling decision. Leaving aside for the moment the Second Respondent’s mitigating factors, the Tribunal would otherwise be satisfied in the circumstances that a demotion for a much longer period than 12 months would be appropriate. However, taking into account the mitigating factors referred to above, the Tribunal is satisfied that a demotion for a period of 12 months would satisfy the purposes of disciplines in the PSAA. [145] Tribunal in these proceedings concludes that the sanction of demotion properly achieves the purposes of ensuring appropriate standards of discipline are maintained within the service to protect the public, to uphold ethical standards and promote and maintain confidence of the public and officers in the service. The sanctions of dismissal or probation are not as appropriate in the circumstances of these proceedings as a demotion to satisfy the purposes of discipline required by the PSAA. Nor is it appropriate to consider other sanctions of transfer or performance of community service which likewise would not achieve the purposes of discipline. [146] The Tribunal will set aside the decision of the First Respondent made on 9 July 2020. The Tribunal will substitute a sanction of demotion for a period of 12 months pursuant to section 7.34(d) of the PSAA. The difficulty to overcome here is the appropriate date for the demotion to take effect from so as not to cause an injustice to the Second Respondent who has already served a demotion for 12 months pursuant to an earlier Tribunal decision. The Tribunal has little, if any, evidence about this period of demotion which it is submitted by the Applicant that the Second Respondent “has already served, retrospectively”. This aspect was also considered by Judicial Member McGill SC in Wellington v Carless & Anor63 when considering a preliminary point when the review decision takes affect and the operation of s 24(2)(b) of the QCAT 63 [2022] QCATA 143. -- 27 of 30 -- 28 Act. In that case, it was said that the Second Respondent (viz. the appellant in those proceedings):64 Most of the period of demotion had already passed, and the demotion expired three days later. The Queensland Police Service gave effect to s 24(2)(b) and adjusted the appellants salary and recovered from him the relevant overpayment. It is not clear when this occurred, but presumably after the stay application was dismissed. There is nothing in the reasons for the decision on the stay application to suggest that the effect of QCAT Act s 24(2)(b) was considered at that point. [147] Later in that decision it was further stated:65 He conceded that as a result the temporary demotion had taken effect in essence only as a monetary penalty. He also conceded that the submissions of the parties had been formulated on the basis that the decision of the Tribunal took effect prospectively. It occurs to me that, if the temporary demotion had taken affect prospectively, by now it would have been spent anyway, which would have meant that the only effect of a successful appeal which led to the reinstatement of the sanction imposed by the first respondent would have been to require the payment of a shortfall in salary. [148] The Tribunal has insufficient material, evidence and/or submissions in relation to this issue so as to properly consider and decide the matter in accordance with s 24(2) of the QCAT Act. The Tribunal therefore intends to adjourn further consideration of this part of these proceedings relating to s 24(2) of the QCAT Act and to make directions for the parties to provide further submissions and/or any new evidence with respect to the Second Respondent having already served a period of 12 months demotion and whether or not the QPS has, following the decision in Wellington v Carless & Anor, made an adjustment to his salary to reimburse any shortfall. Human Rights Act [149] Submissions were not made as to whether the Human Rights Act 2019 (Qld) (‘HR Act’) applies to these proceedings. [150] The Tribunal must consider the human rights of the Second Respondent under the HR Act in reaching its decision in these proceedings. [151] The Tribunal is an entity which acts in an administrative capacity and is bound to comply with the HR Act in conducting the review jurisdiction in relation to the Application filed by the Applicant. [152] In considering the provisions of the CCA, PSAA and the QCAT Act, the Tribunal must, to the extent possible that is consistent with the purposes of the HR Act, interpret that legislation in a way that is compatible with the human rights of the parties. [153] The human rights of the Second Respondent include: (a) recognition and equality before the law; (b) property rights; (c) fair hearing. 64 Ibid [11]. 65 Ibid [12]. -- 28 of 30 -- 29 [154] These human rights have to be considered by the Tribunal as part of its exercise of the review jurisdiction in these proceedings. [155] The Tribunal has made findings about the Applicant’s Application and the First and Second Respondent’s response to that Application. These findings can possibly be a limitation on the human rights of the Second Respondent under the HR Act. This limits his entitlements by imposing, in effect, a liability and/or limits on his equal treatment compared with other applicants making Application to the Tribunal. [156] However, any such limitation on the Second Respondent’s human rights arises from the provisions of the CCA, PSAA and the QCAT Act. While the Tribunal is required to make a decision that is compatible with human rights and is to give proper consideration to human rights relevant to the decision, the Tribunal can make such a decision if the Tribunal could not reasonably have acted differently or made a different decision because of a statutory provision. [157] The CCA, PSAA and the QCAT Act create a legislative scheme in relation to the provision of a system for guiding, correcting, rehabilitating and, if necessary, disciplining officers to ensure proper standards of discipline are maintained within the QPS. It has the purpose of protecting the public, upholding ethical standards and promoting and maintaining public confidence as well as officers’ confidence in the QPS by providing rules about the disciplining of officers who may be the subject of misconduct allegations. [158] This decision under the PSAA in conjunction with the CCA and the QCAT Act is made in accordance with statutory provisions and is not an arbitrary decision. It is a decision based upon the legislative scheme and is reasonable and justified in accordance with s 13 of the HR Act in the light of the purposes of the PSAA and CCA. The decision in these proceedings is made in a way that is consistent with the purpose of the legislation and has been interpreted in a way that is compatible with human rights as required by s 48 of HR Act. In these circumstances any limitation on the human rights of the Second Respondent is reasonable and is justified in terms of section 8(b) of the HR Act. Orders [159] The Tribunal Orders that: 1. The Crime and Corruption Commission is granted leave to adduce new evidence in relation to the materials in the proceedings OCR114-22; 2. Senior Constable Barry Wellington is granted leave to adduce new evidence in relation to provision of character references and his witness statement; 3. Pursuant to s 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld): (a) the decision made on 9 July 2020 by Assistant Commissioner Maurice Carless on disciplinary action against Senior Constable Barry Wellington is set-aside; and (b) The Tribunal substitutes its own decision that Senior Constable Barry Wellington be demoted from Senior Constable level 2.10 to Constable level 1.6 for a period of 12 months; -- 29 of 30 -- 30 4. Further consideration by the Tribunal of the date, pursuant to s 24(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), upon which the demotion to Constable level 1.6 takes effect is adjourned for further hearing and to enable the parties to provide to the Tribunal further submissions and new evidence, if any, and the Tribunal makes the following Directions: (a) Assistant Commissioner Maurice Carless is to file in the Tribunal two (2) copies and is to give to the Crime and Corruption Commission and to Senior Constable Barry Wellington one (1) copy of his submissions and Application to adduce new evidence, if any, including documents or copies of all the new evidence to be relied upon relating to all relevant events to these proceedings of any prior period of demotion of Senior Constable Barry Wellington including the starting date and the end date of any period of demotion and whether there has been an adjustment of salary in accordance with that demotion, on or before; 4.00 pm on 12 November 2025. (b) The Crime and Corruption Commission and Senior Constable Barry Wellington are to file in the Tribunal two (2) copies and are to give to Assistant Commissioner Maurice Carless one (1) copy of their submissions in reply, including an Application to adduce new evidence, if any, including documents or copies of all the new evidence to be relied upon relating to all relevant events to these proceedings of any prior period of demotion of Senior Constable Barry Wellington including the starting date and the end date of any period of demotion and whether there has been an adjustment of salary in accordance with that demotion, on or before; 4.00 pm on 28 November, 2025. (c) Unless any party makes a written request filed in the Tribunal by 4.00 pm on 28 November, 2025 for an oral hearing, the Tribunal will, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), proceed to hear and determine the issue of the date that the demotion takes effect from in accordance with the submissions and any Application filed by the parties without the parties or their representatives appearing at the hearing. -- 30 of 30 --