Crime and Corruption Commission v Horton and Anor [2025] QCAT 356

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Horton and Anor [2025] QCAT 356 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v CHIEF SUPERINTENDENT GLENN HORTON (first respondent) CONSTABLE CHRISTOPHER O’CONNELL (second respondent) APPLICATION NO/S: OCR239-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 18 September 2025 HEARING DATE: 13 December 2024 HEARD AT: Brisbane DECISION OF: Member Carrigan ORDERS: The Tribunal Orders that: (a) the decision on disciplinary action made by Chief Superintendent Glenn Horton on 8 July 2021 to demote Christopher O’Connell from Senior Constable 2.5 to Constable 1.6 for a period of six months and to suspend such demotion after three months, subject to no further acts of misconduct being substantiated against Christopher O’Connell relating to his conduct within the six month demotion period, is set-aside; and (b) in substitution for the decision in (a) above, Christopher O’Connell is demoted from Senior Constable 2.5 to Constable 1.6 for a period of eighteen (18) months commencing on 8 July 2021. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE – MISCONDUCT AND BREACH OF DISCIPLINE – where the Second Respondent engaged in improper conduct by wilfully and repeatedly following, watching and harassing a junior female QPS officer – where the Second Respondent engaged in the improper conduct by accessing it official and confidential information contained with the QPS computer system without an official purpose -- 1 of 21 -- 2 related to the performance of his duties as a member of the QPS Crime and Corruption Act 2001 (Qld), s 219Q Police Service Administration Act 1990 (Qld), s 7.1, s 7.34 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17 Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 Heuston v Horton [2024] QCAT 432 Heuston v Horton (No 2) [2025] QCAT 10 McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 APPEARANCES & REPRESENTATION: Applicant: Ms P Cardiff, Legal Representative for the Applicant First Respondent: Second Respondent Ms H Lane, Senior Legal Officer for the First Respondent No appearance for the Second Respondent REASONS FOR DECISION [1] The Crime and Corruption Commission (the Applicant) has filed an Application in the Tribunal for a review of a disciplinary decision made on 8 July 2021 by Chief Superintendent Glenn Horton (the First Respondent) where he imposed a disciplinary sanction on Constable Christopher O’Connell. (the Second Respondent) [2] The Applicant submits that the disciplinary decision imposed is not the correct and preferable decision as it (a) is inadequate; (b) fails to meet the need for general and persona deterrence; (c) does not reflect the seriousness of the Second Respondent’s conduct; and (d) does not meet the purposes of disciplinary proceedings Background Facts [3] There is common ground between the parties as to the relevant facts which occurred and resulted in the disciplinary decision and sanctions made in these proceedings. The parties filed in the Tribunal a “Statement of Agreed Facts”1 The facts referred to below are from that document. [4] In the period from 13 July 2029 to 29 September 2019 at Townsville, the Second Respondent watched and harassed a junior female Queensland Police Service (QPS) Officer. The particulars of those events during that period are; 1 Statement of Agreed Facts filed on 5 May 2022 -- 2 of 21 -- 3 (a) In June 2019 the Second Respondent ended a relationship with a junior female QPS Officer (the QPS Officer) and moved out of the residence they both shared and removed the Second Respondent from the lease, after all attempts to reconcile failed and the QPS Officer made it clear the relationship had ended and the Second Respondent was to leave her alone; (b) On 14 July 2019 the Second Respondent attended her address and upon seeing another vehicle in the driveway, and a male in the residence, the Second Respondent began to hit the windows and door in an attempt to get inside, arming himself with a sprinkler head, whilst screaming and threatening to smash the visitor’s vehicle; (c) On 25 July 2019 the Second Respondent was observed by the QPS Officer on his motorbike parked approximately 200m away from her residence watching her house; (d) In early September 2019 the Second Respondent sent the QPS Officer a bouquet of flowers to her workplace and an anonymous card; (e) The QPS Officer later asked the Second Respondent about the flowers and he told her he knew he was not allowed to talk to her, but he wanted to do it because it made him feel good; (f) On 3 September 2019 the QPS Officer observed a motorcycle following her for approximately 1km before she pulled over to the side of the road. The QPS Officer has turned around and observed the motorcycle enter in the Bohle Hotel car park; (g) The QPS Officer has followed the motorcycle into the carpark and identified the Second Respondent as the rider and confronted him as to what he was doing. This incident was captured on CCTV footage; (h) On 27 September 2019 the QPS Officer received a letter via registered post from the Second Respondent which stated that if she did not pay him $1,300.00 in 7 days he would commence legal proceedings against her; (i) On 28 September 2019 at around 10:30pm the QPS Officer was placing her dog in the back yard of her residence and has proceeded around the front corner of the property when she observed a dark figure in an alcove; (j) The QPS Officer began to scream, and the male person emerged in the shadows revealing the Second Respondent to the QPS Officer; (k) When the QPS Officer questioned the Second Respondent regarding his actions, he stated it ‘would be okay’ and began to walk off, unbeknown to him, dropping a tobacco pouch which has been identified as belonging to the Second Respondent. [5] In the period between 17 March 2017 and 29 September 2019 the Second Respondent accessed official and confidential information contained with the Queensland Police Service computer system without official purpose related to the performance of his duties as a member of the Queensland Police Service. The particulars of those events within that period are; (a) An audit was conducted of the Second Respondent’s usage of the QPRIME information system and QLite device which was personally issued to him; -- 3 of 21 -- 4 (b) Results of the audit identified on 18 and 28 March 2017, the Second Respondent performed a ‘person search’ on the entity the QPS Officer utilising his QPS QLite device; (c) The audit revealed the Second Respondent viewed the contact details, addresses and phone numbers of associates, occurrences and driver’s licence details and read reports involving the QPS Officer and another person over those dates; (d) On 2 August, 15 September and 19 September 2019 the Second Respondent performed a ‘person search’ on the QPS Officer utilising his QPS Qlite device; (e) On 19 August 2019 the Second Respondent performed a ‘fast find’ search on the QPS Officer and another person on the QPRIME system; (f) On 4 August and 28 September 2019, the Second Respondent performed a ‘person search’ on another person (the same person referred to above) utilising his QPS QLite device; (g) Investigations discovered these accesses had no nexus to the Second Respondent’s duties and were not for any official purpose. [6] There are additional facts and circumstances in these proceedings which are not referred to in the “Statement of Agreed Facts” and which include the following; [7] On 1 October 2019 the Second Respondent was given a notice to stand down. [8] On 20 December 2019 at the Townsville Magistrates Court the Second Respondent entered a plea of guilty to the charge of computer hacking. He was fined $1,200.00 and no conviction was recorded. [9] On 23 June 2021 a QPS Notice informed the Second Responded that a disciplinary matter was substantiated and provided him with an opportunity to make submissions. [10] The Second Respondent provided submissions in response to the QPS Notice. [11] On 8 July 2021 the First Respondent notified the Second Respondent that after consideration of all the evidence it had been decided that the disciplinary matter was substantiated and a decision was made to impose a sanction. The disciplinary matter consisted of two events, namely; (a) between 13 July 2019 and 29 September 2019 at Townsville his conduct was improper in that he wilfully and repeatedly followed, watched and harassed a junior female QPS officers; and (b) between 17 March 2017 and 29 September 2019 his conduct was improper in that he accessed the QPS computer system without an official purpose related to the performance of his duties. [12] The sanction imposed was demotion from Senior Constable 2.5 to Constable 1.6, for a period of six months to be suspended after three months subject to no further acts of misconduct been substantiated relating to his conduct within the six month demotion period. He was also required to complete or re-complete Professional Development Strategies within three months of the imposition of the sanction. The earlier stand down notice issued on 1 October 2019 was revoked with immediate effect. [13] The Second Respondent says that he received that decision on 8 July 2021. -- 4 of 21 -- 5 [14] On 2 August 2021 the Applicant filed in the Tribunal an Application to review the decision of the First Respondent made on 8 July 2021. Tribunals Jurisdiction [15] The Tribunals 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.2 [16] An aggrieved person for a reviewable decision may apply to QCAT to review the reviewable decision.3 An application must be made, so far as these proceedings are concerned, within 28 days after the aggrieved person is given QCAT information for the decision.4 [17] A reviewable decision is a decision made under the Police Service Administration Act 1900 (Qld) (PSAA) that is mentioned in the schedule 1, column 1. The decision made on 8 July 2021 by the First Respondent is a reviewable decision. It was received by the Applicant the same day. [18] On 21 October 2022 the Tribunal directed, following an Application for decision/order by consent of the parties filed on 19 October 2020, that these proceedings are adjourned to the Registry, pending the outcome of referral of matter OCR083–21 (Willmott v Assistant Commissioner Maurice Carless and the Crime and Corruption Commission) (the Willmott v Carless decision) to the Supreme Court of Queensland. [19] On 14 June 2024 the Queensland Court of Appeal delivered the Willmott v Carless decision. That decision concerned the review power under s 219Q(i) of the CCA which relied upon there being first shown a legal, factual or discretionary error in the decision under review to determine whether jurisdiction in the Tribunal is enlivened. Accordingly, because of this decision, the Tribunal will consider below whether there has been a legal, factual or discretionary error in the decision of the First Respondent made on 8 July 2021 to determine whether the Tribunal has jurisdiction in these proceedings. The Second Respondent resignation and did not participate in these proceedings. [20] The Second Respondent resigned from the QPS on 8 December 2023.5 That resignation was gazetted on 12 January 2024.6 [21] On 30 September 2024 the Tribunal made directions; (a) for the First Responded to file and serve any relevant material in its possession relating to the Second Respondents separation from the QPS; and (b) for the Applicant and the Second Respondent to file any further submissions in respect of the Second Respondents separation from the QPS and any further application to adduce fresh evidence and submissions in support. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17 3 Crime and Corruption Act 2001 (Qld) s 219P(1) 4 Crime and Corruption Act 2001 (Qld) s 219P(2) 5 See Second Respondents Submissions filed on 22 October 2024 at paragraph 6 6 See Affidavit of Alexa Heather Ladao Roder affirmed 8 October 2024 -- 5 of 21 -- 6 (c) Directions were made for the First Respondent to provide submissions in reply, if any. [22] On 22 October 2024 the Second Respondents solicitor advised the Tribunal, and the other parties, that the Second Respondent had resigned from QPS and will no longer be participating in the proceedings. The Second Respondent and his solicitor sought leave of the Tribunal to withdraw from the proceedings and made the further submission that; 7 the Tribunal to take meaningful steps to ensure these proceedings are still finalised in a timely manner despite him no longer being involved. [23] On 19 November 2024 the First Responded made Supplementary Submissions referring to the Second Respondents resignation and withdrawing from these proceedings but then proceeded with submissions relating to; (a) the Tribunal’s role in disciplinary proceedings as a result of the decision in Wilmont v Carless8; and (b) the First Respondents position on the substantive application as the proper contradictor. [24] At the Tribunal hearing of these proceedings on 13 December 2024 the Second Respondent did not appear and was not represented during the hearing. [25] The Applicant has submitted that the Tribunal should continue with the proceedings and to hear and determine the review of the reviewable decision. It also submits that notwithstanding the decision in Crime and Corruption Commission v Assistant Commissioner Maurice Carless9 the Tribunal retains all of the functions under section 24 of the QCAT Act particularly the function in section 24(1)(b).10 [26] Subject to compliance (to be discussed below) with the Willmott v Carless decision that there be first shown a legal, factual or discretionary error in the decision under review to determine whether jurisdiction in the Tribunal is enlivened, the Tribunal notes that these proceedings commenced on 2 August 2021 and have her proceeded, except for the adjournment) to the present time. Subject to jurisdiction, the proceedings remain in force and the Tribunal will, notwithstanding the resignation of the Second Respondents from the QPS, proceed to continue to hear and determine the proceedings. [27] The Tribunals file indicate that all parties, including the Second Respondent, were notified on 7 November 2024 that the hearing would be conducted by the Tribunal on 13 December 2024 commencing at 9:30 am at the Tribunals premises in Brisbane. The notice of hearing required parties to attend in person. The Tribunal is satisfied that the notification given to the parties for the hearing of these proceedings was a notice of hearing in accordance with s 92 of the QCAT Act. Notwithstanding the absence of the Second Respondent, the Tribunal can proceed to hear and decide these proceedings.11 Tribunal will now proceed with the Application to review a decision. 7 See Second Respondents Submissions filed on 22 October 2024 at paragraph 10 & 11 8 [2024] QCA 115 9 [2023] QCAT 10 Applicants Submissions filed in the Tribunal on 28 October 2024 at paragraphs 19 to 30 11 QCAT Act s 93 -- 6 of 21 -- 7 The Disciplinary Matters [28] The decision under review dated 8 July 2021 said that the decision-maker was satisfied that the disciplinary matter was substantiated. The disciplinary matter related to two (2) items as follows; (a) that between 13 July 2019 and 29 September 2019 at Townsville your contact was improper in that you wilfully and repeatedly followed, watched and harassed a junior female Queensland Police Service officer; and (b) that between 17 March 2017 and 29 September 2019 your conduct was improper in that you accessed official and confidential information contained with the Queensland Police Service computer system without an official purpose related to the performance of your duties as a member of the Queensland Police Service. [29] The conduct referred to was “improper” for the reasons set out in each of (a) and (b) above. Particulars of that conduct have already been set out above. [30] The grounds for discipline of a QPS officer can be on several bases including whether the subject officer has committed misconduct.12 Part 7 contains various “Definitions” for terms used but that term is defined elsewhere in the PSAA as meaning conduct that;13 is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standards of conduct the community reasonably expect of an officer [31] The decision of the First Respondent relied on the term “improper” in that part of the above the definition describing the “misconduct”. [32] There is a definition of “conduct” which provides as follows;14 conduct means conduct of an officer, whether or whenever occurring, whether the officer whose conduct in question is on or off duty at the time the conduct occurs. Submissions of the parties prior to Wilmot v Carless decision The Applicants Submissions [33] The Applicants submissions do not challenge the finding of the First Responded that the conduct of the Second Respondent was “improper”. The Applicant in these proceedings seeks a review of the sanction imposed on the Second Respondent and submits; 15 The Applicant challenges the adequacy of the sanction imposed and asserts that a permanent demotion is the correct and preferable sanction. 1. 12 Police Service Administration Act 1990 (Qld) s 7.4(1)(a) 13 Police Service Administration Act 1990 (Qld) s 1.4; Schedule 2 Dictionary 14 Police Service Administration Act 1990 (Qld) s 6A.1(1) 15 Applicants Submissions filed 17 June 2022 at paragraph 3–5 -- 7 of 21 -- 8 [34] The Applicant refers to the requirements of the PSAA including the main purpose of disciplining QPS officers including a number of provisions in the CCA and the QCAT Act which, it is submitted ;16 oblige the Tribunal, on an application for review, to make its own decision on the evidence which was before the First Respondent – by way of rehearing. [35] The Applicants submissions provide observations on each of the two disciplinary matters and then provides further submissions on its assessment of the Second Respondents case including; (a) The Second Respondent had no relevant misconduct history. He has not contested the substantiation of the disciplinary matters. He pleaded guilty to the computer misuse charges and cooperated in the imposition of the restraining order. He has made certain admissions of his conduct in the disciplinary process, demonstrating some acceptance of his conduct and has engaged with Professional Development Strategies; (b) The Applicant challenges the Second Respondents characterisation of aspects of the Second Respondents case and submits; (i) the sanction is not a punitive sanction of the extra-marital affair; nor of a relationship breakdown, the purpose of the disciplinary proceedings is to determine the correct and preferable sanction to the proper objectives of the discipline for a serious course of surveillance of and threats to a co- worker and unlawful computer hacking by a senior officer; (ii) it is improper to characterise the scale of the Second Respondents deliberate, several and committed actions in breach of command and specific management intervention as a “lapse in judgement”; (iii) the misconduct should not be minimised as “an example of life’s complexities” (iv) domestic violence incidents are pervasive in our society and relates to a range of behaviours, from acts of coercive control, technological and personal surveillance, to threats and actual violence. QPS frontline offices are routinely engaged in this critical work; (v) the fitness of the Second Respondent to perform at higher duties must be considered in a real societal context. .His demonstrated failure, despite years of training and experience and specific command, to act with integrity and restraint in a period of personal stress presents very real public risk; (vi) sanctions made for protective purposes may have severe consequences for the subject officer. (vii) character references by fellow offices and “new evidence” of performance statements of QPS supervisors, the Tribunal would give those limited weight and view those in the context of the ongoing disciplinary 16 Applicants Submissions filed 17 June 2022 at paragraph 6–13 -- 8 of 21 -- 9 proceedings. Reference was made to O’Brien v Taylor & CCC17 and the observations made in those proceedings. (viii) matters referred to in mitigation by the Second Respondent diminish when the purpose of an order is to protect the public. The public interest in the subject officer in continuing service must be why it against the public interest in protecting against the repetition of misconduct. [36] The Applicant made submissions with respect to the sanction to be imposed and submitted that; (a) the First Respondent fails to adequately reflect the gravity of the several and cumulative acts of misconduct, particularly having regard to acts in breach of commands and criminal law design to preserve peace and good order and protect the community; (b) the Second Respondents decision-making and several acts were in direct opposition to his training, experience, QPS directives and direct interventions by his own management demonstrate his unfitness to hold the rank of Senior Constable. His decision-making is a more serious factual matter than that in Fraser v Assistant Commissioner Michael James Condon18 given the ill intent to colleagues, and the ongoing cumulative conduct in breach of specific directions ; (c) responsibility for command should fall to experience officers with integrity, capable of implementing the Commissioners directions under pressure in dynamic circumstances. The Second Respondent used his professional standing and resource to inflict intentional harm on a junior female QPS officer and colleagues, resulting in significant cost to those officers and public resource. It is corrosive to officer morale and the standing of the QPS to promote such a person at higher rank. His maintenance in command must be offensive to public expectations and may well present a risk to public safety; (d) the Tribunal is not being asked to impose a punitive sanction. It is conduct that requires; (i) Appropriate standards of discipline to be maintained that protect fellow officers and the public; (ii) Ethical standards within the QPS to be upheld (iii) Officers and public confidence in the QPS to be maintained and promoted in reflection of expectations of integrity. (e) but for the Second Respondents acceptance of misconduct and a certain level of remorse, dismissal would have been the appropriate sanction. Reference was made to the reasoning in Francis v CCC and Anor.19 (f) the Second Respondents engagement with the disciplinary charges and on Matter One in particular, he has demonstrated limited resource for the impacted parties. A disciplinary sanction of demotion together with professional 17 [2021] QCATA 12 18 [2016] QCAT 271 19 [2015] QCA 218 -- 9 of 21 -- 10 development strategies would not be the correct and preferred decision to impose; (g) permanent demotion that precludes the Second Respondents supervision and control of junior officers satisfies the protective function of discipline for members of the Service and for the broader public good . The First Respondents Submissions [37] The First Respondent filed Submissions in the Tribunal submitting that;20 (a) the approach is one limited to addressing the procedures related to the disciplinary hearing and relevant statutory provisions associated with the review process. Reference is made to R v Australian Broadcasting Tribunal: Ex parte Hardiman.21 (b) to provide assistance to the Tribunal.as follows, where submissions of the Applicant and Second Respondent may be inadequate in covering the Queensland Police Services position in relation to the proceedings the First Respondent submits regard has been had to the Applicants Outline of Submissions and presently the First Respondent cannot usefully add any additional submissions which would assist the Tribunal; [38] The First Respondent has not seen the Second Respondents Outline of Submissions and cannot provide any submissions in reply. The Second Respondents Submissions [39] The Second Respondent filed submissions in the Tribunal in reply to the earlier submissions of the Applicant and the First Respondent 22 The Second Respondent submitted that; (a) the submission of permanent demotion made by the Applicant, is not clear what is meant by “permanent demotion” given the ranks of Constable and Senior Constable are progression ranks rather than promotion ranks. It would be a legal nonsense to suggest an officer is permanently (forever) demoted to Constable; (b) the submissions by the First Respondent are unhelpful to the Tribunal. The First Respondent should use its best endeavours to help the Tribunal so that it can make the review decision. The principles in R v Australian Broadcasting Tribunal: Ex parte Hardiman has little, if any, applications to the legislative regime for the review in these proceedings. (c) The decision made in the reviewable decision of 8 July 2021 was the correct and preferable decision in all of the circumstances. It was further submitted that (i) imposition of a temporary demotion satisfied the specific and general deterrents principles; (ii) the restorative conditions of the disciplinary decision properly addressed the protective purposes of discipline; 20 First Respondents Submissions filed on 24 June 2022 paragraphs 1–4 21 [1980] 144 CLR 13 at 35-36 22 Second Respondents submissions filed 19 July 2022 -- 10 of 21 -- 11 (iii) the fresh evidence (admitted by the Tribunal) reinforces the decision of the QPS is the correct and preferable decision; (iv) it is almost 3 years since an allegation of misconduct has been alleged against the Second Respondent; (v) there is no tension between s 20 of the QCAT Act and the like provisions of the enabling CCA but the obiter dictum by the President of the Court of Appeal suggests otherwise. (Gunter v Assistant Commissioner Wilkins and Anor). There is a real and significant divergence between the two authorities as to the proper task for the Tribunal to undertake in review proceedings. The appeal in the Willmott case is currently before the Tribunal and is being advanced in a manner to resolve this issue for all police review matters. (vi) the facts are not in dispute and the parties rely upon to an agreed statement of facts. The only issue in contest is the severity of the sanction; (vii) no attempt has been made by the Second Respondent to justify the conduct. He has faced and accepted the consequences of being charged criminally and progressed through the criminal justice system. This was humiliating and embarrassing for a serving police officer both publicly and internally amongst colleagues.. The fact that three years have passed without further incident is an insurmountable hurdle for the Applicant to overcome in these proceedings. It is submitted time is a compelling factor which would allow the Tribunal to conclude the manner in which the QPS dealt with this matter is totally correct and preferable in all circumstances. Reliance was placed on the decision by Carmody J in Assistant Commissioners Stephen Hollands v Tolsher.23 (d) The Second Respondents submits that the Application to review should be dismissed and the decision made by QPS on 8 July 2021 should be confirmed as; (i) his conduct should be considered in the contextual aspect of his and the junior female QPS offices having a tumultuous “on again and off again” relationship; (ii) he understands that his actions were improper and unacceptable and feels remorse for his poor decision-making. His conduct reflects a lapse in judgement; (iii) his personal circumstances with regard to the open “formal” relationship was devastating and humiliating to him. He was stood down from duty during the investigation. He has suffered a disgrace and a financial sanction; (iv) his prior service record is exemplary, he is supported by good references, and his prospect of re-offending should be regarded as low; (v) he is committed to receiving support from the QPS and has engaged in learning and development strategies. 23 [2016} QCATA 123 at [47] -- 11 of 21 -- 12 Decision in Willmott v Carless and the Parties Further Submissions [40] On 14 June 2024 the Court of Appeal of the Supreme Court of Queensland gave its decision in Willmott v Carless and held that;24 The Tribunal’s review power under s 219Q(1) of the Crime and Corruption Act 2001 (Qld) is predicated on there being first legal, factual or discretionary error in the decision below [41] The Court said that for the Tribunal conducting the review under section 219Q that it; 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. [42] On 30 September 2024 the Tribunal made further Directions for the parties to make any further submissions consequent upon the delivery of the decision in Willmott v Carless. The Tribunal now refers to those further submissions filed by the parties. First Respondent Supplementary Submissions filed on 19 November 2024 [43] The First Respondent submits that a number of circumstances in this review have changed which has resulted in a change of its position in responding to the Application to review a decision made on 8 July 2021. [44] The Willmott v Carless decision clarifies the role of the Tribunal in this review [45] This review is not a fresh hearing on the merits as the Willmott v Carless decision held that s 20 of the QCAT Act is displaced by s 219Q of the CCA.. This review is by way of a rehearing of the evidence given in the proceedings before the original decision-maker including any evidence adduced by leave of the Tribunal. The role of the Tribunal is to arrive at the correct and preferable decision. [46] The Tribunal’s jurisdiction is, or is not, enlivened depending upon whether there has been a legal, factual or discretionary error in the decision of the decision-maker. In the event the Tribunal’s jurisdiction is enlivened, the matter should then be dealt with pursuant to s 24 of the QCAT Act [47] The First Respondent concedes that an error was made in the reviewable decision by uncritically accepting the Second Respondents characterisation of his conduct as “due to lapses in judgement, as a result of a tumultuous relationship”. This was a factual error. It then submits, it is open to the Tribunal to find that the First Respondent mischaracterised the behaviour of the Second Respondent. It is submitted that the First Respondent accepts that it is more appropriate to characterise the conduct of the Second Respondents as “a persistent and deliberate course of conduct”. The First Respondent does not concede any other errors in the approach it took and in making the decision under review. [48] It is further submitted that the range of sanctions which can be imposed are in accordance with s 7.34 of the PSAA and are relatively limited. A demotion is the most detrimental. It is accepted that if the Tribunal set-aside and substituted another decision, the full range of sanctions outlined in s 7.34 of the PSAA are available to the Tribunal. 24 (2024) QCA 115 -- 12 of 21 -- 13 [49] It is submitted that the Complaints Resolution Guidelines are relevant to the Second Respondents circumstances in determining the sanction pursuant to s 7.44(1)(b). Those guidelines state; In determining an appropriate sanction, consideration is to be given to the purposes of discipline and the overall circumstances including…. (a number of factors are outlined) [50] The First Respondent submits that the purposes of Part 7 of the PSAA includes “disciplining an officer” and having regard to the Second Respondents lack of discipline history, service history and seriousness of the complaint, the Applicants contention that the sanction of the demotion for six months was inadequate is not made out in all of the circumstances. Applicants Submissions dated 10 December 2024 [51] The Applicant submissions of 10 December 2024 initially challenged several of the submissions made by the First Respondent on 19 November 2024 and then states that the Willmott v Carless decision clarifies the Tribunal review power under section 219Q(1) of the CCA. That review power is predicated on there being first shown legal, factual or discretionary error in the decision under review. It was further submitted that once the Tribunal’s review jurisdiction is enlivened, it remains the purpose of a review to produce the correct and preferable decision pursuant to s 20(1) of the QCAT Act. [52] The Applicant “invites” the Tribunal to find that the error conceded by the First Respondent in its submissions of 19 November 2024 is established and also the Tribunal’s “jurisdiction to “interfere” is enlivened. Those submissions continue on the basis that it is in the Tribunal’s power to then consider whether the sanction was “manifestly inadequate”. The Applicant relies upon the decision in Regina v Johnson;25 whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution of that sentence. [53] The Applicant submits that the sanction imposed in the decision under review was outside the appropriate range for the circumstances of the case, including the seriousness of the Second Respondents persistent and deliberate conduct. It also relies upon its ground that the sanction did not adequately address the seriousness of the Second Respondents misconduct. [54] The Applicants submissions concede that the First Respondent was constrained26 to imposing a sanction which ranges between suspension from duty for not longer than 28 days and reprimand, and did not have the power to impose either probation or dismissal from duty., The Applicant submits the First Respondent correctly notes that if the Tribunal sets aside and substitutes another decision, the full range of sanctions in section 7.34 of the PSAA are available pursuant to section 219S of the CCA. 25 (2005) NSWCCA 186 at [35] 26 By s 7.35(2) and s 7.43(5) of the PSAA -- 13 of 21 -- 14 [55] The Applicant submits that the Second Respondents resignation during the review process does limit the options available to the Tribunal in achieving the combined aims of s 219Q of the CCA and s 20 of the QCAT Act. [56] The Applicant submits that the Second Respondents misconduct warranted a sanction of permanent demotion to Constable 1.6. It is also submitted that the misconduct demonstrates that the Second Respondent was not fit to hold a rank which required him to lead, supervise, mentor and influence more junior staff. Is there a Legal, Factual or Discretionary Error in the Decision Under Review [57] All parties are in agreement that there was an error made categorising the Second Respondents conduct as being; your emotions got the better of you and your contact was due to lapse in judgement. [58] The submissions by the parties are that this characterisation was an error of fact. [59] The Tribunal accepts these submissions of the parties and finds that the First Respondent made an error fact in categorising the conduct of the Second Respondent as a “lapse of conduct”. Taking into account the conduct in the two (2) matters, including the relevant particulars of that conduct, the subject of the disciplinary proceedings, the Tribunals conclusion is that the Second Respondents conduct was persistent and blatant particularly having regard to the fact that the junior female QPS officer had clearly made known to him that;27 the relationship had ended and the Second Respondent was to leave her alone; [60] The fact that the relationship had ended was ignored by the Second Respondent and he continued attempting to contact or communicate with the junior female QPS officer. He continually failed to “leave her alone” when he would have known, or should have known, that his behaviour was contrary to the wishes of the junior female QPS officer. His access to the information on the QPS computer, the subject of Matter Two, was a continuation of such improper behaviour. [61] The inescapable conclusion from the conduct referred to in the “Agreed Statement of Facts” demonstrates that this was more than just a “lapse of Judgement” but was conduct which continued over a lengthy period of time and was persistent. The Tribunal finds that the categorisation of the conduct made by the First Respondent was an error of fact. [62] The Tribunal has jurisdiction to conduct the review of these proceedings and to hear and determine that review of the decision made 8 July, 2021. Was the Second Respondents Conduct “Improper” [63] No submission has been made to the Tribunal by any of the parties that the conduct of the Second Respondent as contained in the “Statement of Agreed Facts” was other than improper. [64] The Tribunal considers that the relevant conduct of the Second Respondent was improper because it was persistent and blatant over a lengthy period of time. The 27 See the Particulars of the Conduct for Matter One -- 14 of 21 -- 15 Tribunal finds that the conduct which is the subject of Matter One and Matter Two as particularised in the “Statement of Agreed Facts” was at all material times improper. What is the Correct and Preferable Decision on Sanction [65] Part 7 of the PSAA contains provisions for the discipline of QPS officers. [66] The object of the disciplinary process is to ensure appropriate standards of discipline are maintained within the QPS having regard to factors such as;28 (a) the protection of the public; (b) upholding ethical standards; (c) promoting and maintaining public confidence in, and offices confidence in, the QPS [67] In relation to disciplinary sanctions the PSAA provide a range of sanctions from dismissal to a reprimand.29. The Tribunal is to determine which is the correct and preferable sanction in the circumstances of these proceedings. The Tribunal is able to consider the full range of sanctions provided in section 7.34 of the PSAA [68] It is relevant to determine the seriousness of the improper conduct by the Second Respondent. The conduct in Matter One in the disciplinary process refers to the Second Respondent “wilfully and repeatedly followed, watched and harassed” the junior female QPS officer. This contact was over a period of approximately 2.5 months. Whether this conduct was performed “off duty” does not limit the Tribunal’s consideration of the seriousness of the conduct. The Tribunal is concerned with the ethical standards of offices and the public’s confidence in officers behaving according to their required ethical standard. The conduct of the Second Respondent in the “Agreed Statement of Facts” did not meet the standards reasonably expected by the public. [69] As the Tribunal has already found the contact was improper. The Second Respondent has acknowledged this factor. However ,while that may be a mitigating factor that acknowledgement does not excuse the behaviour which on any view reflects adversely on the Second Respondent and the Service. [70] The particulars set out in the “Statement of Agreed Facts“ refers to conduct that was wilful and repeated behaviour of following, watching and harassing the junior female QPS officer which establishes the seriousness of the improper conduct. The Tribunal is of the view that this is not a minor or trifling instance but is persistent and blatant conduct by a more senior officer in circumstances involving a junior female QPS officer. The improper conduct is serious and has to be regarded that way when dealing with the range of sanctions provided in s 7.34 of the PSAA. [71] The improper conduct extended over a period of time. It was not an isolated event. The Second Respondent disregarded the clear statements from the junior female QPS officer that the relationship was concluded and that she wanted to be left alone. The Second Respondent completely ignored and disregarded the finality of the situation as had been explained to him He continued to act according to his own interests without any satisfactory explanation of taking into account the interests of the junior 28 PSAA s 7.1 29 PSAA s 7.34 -- 15 of 21 -- 16 female QPS officer. His judgement in these circumstances was totally lacking. These are all circumstances of aggravation. His conduct from 2017 to 2019 of accessing information about the junior female QPS officer, and another person, by means of the QPS computer was behaviour unacceptable to those persons, but also in terms of the attitude of members of the public and other QPS offices wishing to maintain confidence in the Service. These matters need to be taken into account in determining the correct and preferable sanction. [72] The Second Respondent relies on circumstances of mitigation of the sanction. In these proceedings he has accepted the facts, without dispute, and that the conduct was improper. He has provided personal references. He has pleaded guilty to the charges relating to access to the QPS computer in proceedings in the Townsville Magistrates Court. He was fined $1,200.00 and no conviction was recorded. While the Tribunal will have regard to those mitigating factors, in the final analysis these matters do not excuse his serios improper conduct. [73] The Second Respondent has been an officer in the QPS for many years. Prior to committing the improper conduct in these proceedings, he has not been the subject of any prior disciplinary proceedings. In the three years approximately prior to his resignation from the QPS, he has not been the subject of any other disciplinary proceedings. He has been promoted through the ranks of officers to Senior Constable 2.5. [74] It is said that as a Senior Constable 2.5 he holds; a significant and trusted position of responsibility and guiding, leading and instructing junior staff at the coalface of the organisation. His position of trust is significantly diminished, to say the least, by his accessing the QPS computer for his own private purposes and unrelated to his performance of duty as a QPS officer. Such conduct shows that trust in him is misplaced. His improper conduct also diminishes the concept of him as a responsible person. He failed to distinguish between his own interests and those interests which a serving QPS officer. His improper conduct cannot support the proposition he can be relied upon as a person to guide, lead and instruct junior staff at the coalface of the organisation. The circumstances call for a significant sanction within the range provided in section 7.34 of the PSAA. [75] These proceedings are not an appeal from the decision of 8 July 2021 which imposed a sanction on the Second Respondent. Following the decision in Wilmot v Carless, Judicial Member McGill SC referred to s 219Q of the CCA displacing s 20 of the QCAT Act and stated;30 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 30 Heuston v Horton [2024] QCAT 423 at paragraph 3 -- 16 of 21 -- 17 matter of inference. It may be that, in time, are the differences from an appeal by way of rehearing will emerge. [76] In the present proceedings there is no dispute about the factual basis of the matters alleged involving the conduct of the Second Respondent. [77] The parties in these proceedings have made submissions to the Tribunal that demotion is the appropriate sanction but they differ as to the length of time the demotion should operate. In terms of the range of sanctions available in s 7.34 of the PSAA a demotion is the more appropriate sanction. A demotion has sufficient regard to the seriousness of the improper conduct and the circumstances of aggravation referred to above. It also takes into account the mitigating factors referred to but which are completely outweighed by the factual circumstances here which have shown a lack of trust and a failure in leadership at the Senior Constable 2.5 level. A demotion is the appropriate sanction. [78] The issue in these proceedings is what is the appropriate length of time for the demotion to operate. In McKenzie v Acting Assistant Commissioner Tony Wright (‘McKenzie’) the Appeals Tribunal reduced the rank of an officer from Sergeant 3.5 to Senior Constable 2.9 for a period of 12 months.31 The officer’s conduct in those proceedings followed the conclusion of a friendly relationship with another QPS officer and a short-term sexual relationship. The conduct was described as inappropriate during a confrontation involving deliberate physical violence which resulted in bodily harm which was by no means minor. It involved the inappropriate use of handcuffs and excessive violence in a private dispute while the officer was “off duty”. The use of handcuffs has recently been described as an abuse of the officer’s service position as a police officer.32 When compared with the “Statement of Agreed Facts” in these proceedings, the conduct in the McKenzie case involved violence on a single occasion. In these proceedings the improper conduct of the Second Respondent did not involve the same, or similar, level of violence, but extended over several months rather than occurring on a single occasion. The Second Respondent’s improper conduct also involved an additional element of accessing other persons information on the QPS computer without any official purpose. [79] In Hetherington v Assistant Commissioner of Queensland Police Service (‘Hetherington’) the Tribunal ordered that the police officer be demoted from the rank of Sergeant to Senior Constable 2.9 for a period of 12 months and that the officer not be eligible for automatic progression to the next pay point or rank until the expiration of that period.33 The conduct in those proceedings occurred while the officer was “off duty” who sought to obtain a benefit by producing his police identification badge in the early hours of the morning attempting to gain entry at an inner-city hotel after “lock out” time. That attempt was followed by subsequent aggression and a scuffle with other police officers attending the hotel on official duty. That conduct is not in any way similar to the Second Respondent’s improper conduct in these proceedings. However, the conduct in Hetherington’s case involved a Sergeant and was limited to the one occasion of misconduct, unlike the facts in the present proceedings. Nor did the Hetherington case involve the additional element of accessing other person’s information on the QPS computer without any official purpose. 31 [2011] QCATA 309. 32 Heuston v Horton (No 2) [2025] QCAT 10, [35] (Judicial Member McGill SC). 33 [2011] QCAT 82. -- 17 of 21 -- 18 [80] In Heuston v Horton (‘Heuston’) the Tribunal confirmed the decision of Acting Assistant Commissioner Horton’s disciplinary findings against a serving police officer which imposed the following sanction: (a) demotion from Senior Constable 2.10 to Constable 1.6; (b) after 12 months to be eligible to return to Senior Constable 2.10 upon the successful completion of one performance development agreement The misconduct in those proceedings involved an officer misrepresenting, to say the least, in an application for an advertised vacancy examples of where he had demonstrated various leadership characteristics.34 This misconduct is not in any way similar to the misconduct in these proceedings involving the Second Respondent. However, in the Heuston case the conduct was limited to the completion of the application and did not extend for a prolonged period although there was an attempt to subsequently justify the misrepresentations. Nor did the misconduct in the Heuston case have the additional element of accessing the QPS computer for purposes unrelated to official police duties. [81] The First Respondent’s decision of 8 July 2021 demoted the Second Respondent for a period of six months to be suspended after three months on certain conditions. The Tribunal is concerned about a demotion for either three or six months because at the end of that period the Second Respondent returns to the position of trust and leadership which, in these proceedings, the Second Respondent has demonstrated he abrogated both concepts. It is not entirely clear to the Tribunal that by attending Professional Development the Second Respondent would be in a position to regain the concept of trust or leadership. The Tribunal also considers that because of the seriousness of the improper conduct and the other circumstances referred to above that a demotion for 3 to 6 months is in the circumstances an inadequate sanction. The Tribunal rejects the First Respondent submissions, and those of the Second Respondent, that the demotion should be for a period of six months but suspended after three months as set out in the decision under review dated 8 July 2021. [82] The Applicant submits that the appropriate sanction is a permanent demotion in accordance with section 7.34(d) of the PSAA. As has been submitted by the Second Respondent already, that is taken as a demotion “forever”. The Tribunal considers there are several issues with the concept of “permanent” demotion and whether it is warranted in these proceedings. The undisputed facts are that the Second Respondent has been a QPS officer for a number of years without any disciplinary sanctions, apart from those that are the subject of these proceedings. Since the improper conduct there has been no occasion in the three subsequent years prior to his resignation of any further acts of misconduct. There is no evidence before the Tribunal, or evidence from which an appropriate inference could be drawn, that had the Second Respondent reminded a member of the QPS (and had not resigned) that it could reasonably be anticipated he would have been the subject of future misconduct and sanctions. Rather, so far as the Second Respondent is concerned, the serious misconduct in these proceedings is a “one off” breach of discipline. The submission of “permanent” demotion is not accompanied by any factual matter or evidence before the Tribunal demonstrating the Second Respondent is beyond rehabilitation. Nor has it been demonstrated that the Second Respondent is not capable of understanding the loss of 34 The facts concerning the misconduct are reported in Heuston v Horton [2024] QCAT 432. -- 18 of 21 -- 19 trust and leadership qualities by his misconduct. It is apparent that during his service as a QPS officer he has previously demonstrated to his superiors that he has had those qualities in his progression to the rank of Senior Constable. As has already been submitted by the Second Respondent, and not contradicted in other submissions: the ranks of Constable and Senior Constable are progression ranks rather than promotion ranks. It would be a legal nonsense to suggest an officer is permanently (forever) demoted to Constable; The Tribunal declines to make any finding that he is beyond rehabilitation and that his demotion should be permanent. The Tribunal rejects the Applicant’s submissions that the demotion should be permanent. [83] The Tribunal has given consideration to the other remaining sanctions in s 7.34 of the PSAA. The sanctions referred to in s 7.34(a), (b) and (c) are not as appropriate in the circumstances as the sanction of demotion. The sanctions provided in s 7.34(e), (f), (g), (h) and (i) are inappropriate and in no way in reflect the seriousness of the misconduct of the Second Respondent. [84] To ensure proper standards of discipline are maintained for the protection of the public, maintenance of ethical standards and ensuring that the public and officers have confidence in the QPS, the Tribunal determines that the correct and preferable sanction is to demote the Second Respondent from Sergeant 2.5 to Constable 1.6. In determining the period of that demotion, the Tribunal considers that the Second Respondent’s misconduct is more serious than the misconduct referred to in the McKenzie case, the Hetherington case and the Heuston case. This is because the Second Respondent’s misconduct can be categorised as: (a) wilfully and repeatedly following, watching and harassing a junior female QPS officer between 13 July 2019 and 29 September 2019; and (b) containing the further element of accessing official and confidential information contained with the QPS computer without an official purpose related to his duties between 17 March 2017 and 29 September 2019. [85] The Tribunal considers that a demotion needs to be for a period greater than 12 months. After due consideration the sanction which is most appropriate in the circumstances of the Second Respondent’s misconduct is demotion to Constable 1.6 for a period of eighteen (18) months from 8 July 2021. [86] The Tribunal will make Orders setting aside the decision of the First Respondent made on 8 July 2021 and will substitute an order the Second Respondent is to be reduced in rank by demotion to Constable 1.6 for a period of eighteen (18) months from 8 July 2021. The sanction will form part of his disciplinary history and may be taken into account in the event that a future disciplinary proceedings, if at all, were contemplated including his suitability to rejoin the QPS, and continue to be an officer, including an officer of a particular rank. Human Rights Act [87] Submissions were not made whether the Human Rights Act 2019 (Qld) (‘HR Act’) applies to these proceedings. [88] The Tribunal must consider the human rights of the Second Respondent under the HR Act in reaching its decision in these proceedings. -- 19 of 21 -- 20 [89] 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. [90] 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. [91] The human rights of the Second Respondent include: (a) recognition and equality before the law; (b) property rights; (c) fair hearing. [92] These human rights have to be considered by the Tribunal in the light of its exercise of the review jurisdiction in these proceedings. [93] The Tribunal has made findings about the Applicant’s Application and the First and Second Respondents’ 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 his equal treatment compared with other applicants making Application to the Tribunal. [94] However, any such limitation on the Second Respondents 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. [95] 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, discipling 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 officer’s confidence in the QPS by providing rules about the disciplining of officers who may be the subject of misconduct allegations. [96] 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 [97] The Tribunal Orders that; (a) the decision on disciplinary action made by Chief Superintendent Glenn Horton on 8 July 2021 to demote Christopher O’Connell from Senior Constable 2.5 to -- 20 of 21 -- 21 Constable 1.6 for a period of six months and to suspend such demotion after three months, subject to no further acts of misconduct being substantiated against Christopher O’Connell relating to his conduct within the six month demotion period, is set-aside; and (b) In substitution for the decision in (a) above, Christopher O’Connell is demoted from Senior Constable 2.5 to Constable 1.6 for a period of eighteen(18) months commencing on 8 July 2021. -- 21 of 21 --