Crime and Corruption Commission v Assistant Commissioner Pond & RXY [2025] QCAT 492

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CCC v Assistant Commissioner Pond & RXY [2025] QCAT 492 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER CHARYSSE POND (first respondent) RXY (second respondent) APPLICATION NO/S: OCR197-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 15 August 2025 (decision) 17 November 2025 (reasons) HEARING DATE: 25 October 2024 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: IT IS THE DECISION OF THE TRIBUNAL THAT: 1. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), other than to the parties to this proceeding, publication of any information that may identify the second respondent and all third parties named on pages 338 and 339 of the section 21 material provided by the first respondent to the Tribunal on 14 September 2022 and the name of Operation TOV and any information about the operation is prohibited. 2. The Tribunal is not satisfied that, in making her decision, the Assistant Commissioner made a legal, factual or discretionary error. Accordingly, the review is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks a review of a decision made by the first respondent in relation to the second respondent – where the original decision was in relation to disciplinary proceedings that ensued after the second respondent accessed confidential information relating to her sister on a QPS database without an official purpose – whether the Tribunal is satisfied that there is a legal, factual or discretionary error in the first respondent’s decision such as to enliven its review power – whether the review should be dismissed -- 1 of 11 -- 2 REASONS FOR DECISION Background [1] The matter OCR197 of 2022, Crime and Corruption Commission (‘applicant’) against Assistant Commissioner Pond (‘decision-maker’) and RXY (‘second respondent’), arises from an application filed by the applicant in the Tribunal on 25 July 2022. The applicant seeks a review of the decision made by the decision-maker on 29 June 2022, concerning disciplinary action against the second respondent for misconduct. [2] The CCC submits the sanction imposed on the second respondent was not the correct or preferable decision because it was inadequate. The CCC submits that:1 The decision pays insufficient attention to the fact that the core of the first respondent's conduct is not inexperience, but an integrity issue; the misconduct occurred over a two-year period and is what can be described as years-long deception; the protracted deception raises serious integrity concerns; and the first respondent has demonstrated a lack of insight into the seriousness of the misconduct. The decision does not achieve the main purposes of police discipline because it fails (1) in protecting the public; (2) to uphold ethical standards within the police service; (3) to promote and maintain public confidence in the public sector; and (4) to meet the need for general or personal deterrence. 1 Application to review a decision, filed in the Tribunal 25 July 2022, 5 (‘Review application’). Crime and Corruption Act 2001 (Qld) Police Service Administration Act 1990 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Aldrich v Ross [2001] 2 QD R 235 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Crime and Corruption Commission v Queensland Police Service and Francis [2015] QCATA 15 House v The King [1936] HCA 40 Police Service Board v Morris [1985] HCA 9 R v Australian Broadcasting Tribunal; ex Parte Hardiman (1980) 144 CLR 13 Shi v Migration Agents Registration Authority [2008] HCA 31 Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375 Willmott v Carless [2024] QCA 115 APPEARANCES & REPRESENTATION: Applicant: PJ Cardiff instructed by the Crime & Corruption Commission First respondent: AC Marszalek, Senior Legal Officer of QPS Legal Services Second respondent: C Gnech, solicitor of Gnech and Associates -- 2 of 11 -- 3 [3] The CCC submits that the correct and preferable decision is one which includes a sanction that:2 (a) reflects the seriousness of the misconduct; (b) expresses disapproval of the second respondent's conduct; and (c) is one of at least local, lateral transfer and probation. The original decision [4] The second respondent commenced duty as an intelligence officer in August 2009 and in June 2013 was transferred into the Intelligence, Counterterrorism and Major Events Command. The two disciplinary matters alleged against the second respondent are as follows:3 MATTER ONE Between 10 January 2017 and 12 February 2019 at Brisbane your conduct was improper in that you accessed official and confidential information contained within the Queensland Police Service [(‘QPS’)] computer systems without an official purpose related to the performance of your duties as a member of the [QPS]. … MATTER TWO Between 10 January 2017 and 12 February 2019 at Brisbane your conduct was improper in that you performed duties as an intelligence officer on Operation [TOV] and failed to declare a conflict of interest, nor declare your criminal associations. [5] The decision-maker found both matters were proven to have met the requisite standard for misconduct.4 In her submissions to the decision-maker, the second respondent accepted the misconduct was substantiated.5 [6] In respect of the first matter, the second respondent accessed information from the QPS’ Q-Prime system. This information pertained to her sister and other persons subsequently charged in relation to drug offences, including trafficking, which was the focus of Operation TOV – a QPS open covert drug trafficking operation. [7] In respect of the second matter, during her role as an intelligence officer, the second respondent became aware of the connection between her sister and entities connected with operation TOV, but did not disclose a conflict of interest to her superiors or other police officers. She also did not submit a declarable association report in relation to the connection with her sister and her sister’s association with entities connected with Operation TOV. [8] The second respondent made submissions to the decision-maker that:6 2 Supplementary submissions of the applicant, filed in the Tribunal 26 August 2024, [37] (‘Applicant’s submissions’). 3 Review application (n 1) 8. 4 Section 21(2)(b) Bundle, filed in the Tribunal 14 September 2022, 333-334. 5 Ibid 365. 6 Ibid. -- 3 of 11 -- 4 Whilst [she] anguished over her sister's associations, her goal was to turn a negative into a positive by facilitating the recruitment of her sister as a Human Source. [9] The second respondent further submitted that there is no evidence to support she had any other sinister intent.7 As stated, ultimately, the second respondent accepted all the particulars outlined in the decision-maker's decision and acknowledged the findings of misconduct.8 The following sanctions were imposed on the second respondent by the decision-maker:9 (a) immediate local transfer out of State Intelligence Group, Crime and Intelligence Command to a general duties policing role in Brisbane Region, South Brisbane District, Upper Mount Gravatt Division…; and (b) a fine of 8 Penalty Units. [10] The decision-maker relied upon the submissions made by the second respondent in relation to the proposed sanction and noted the following in her reasoning:10 (a) you accept the conduct as particularised in Matter One and Matter Two has been substantiated; (b) you concede your actions were improper and feel remorse for your poor decision making; (c) you submit your access within the [QPS] computer systems was to facilitate the recruitment of your sister as a human source; (d) you submit that there is a difficulty for even experienced officers to manage the overlap of their personal and professional lives; (e) you submit the seriousness is lessened as you did not release nor disclose the information you became privy to; (f) you submit that there is no evidence of a lack of integrity but rather that your failures were of a procedural nature; (g) you submit that the Horan Report is not relevant or reliable and does not reach any definitive conclusions; (h) you submit the proposed sanction of a local transfer out of the intelligence section is manifestly excessive in the circumstances nor is it the correct and preferable decision required by law; (i) your submissions regarding the embarrassment and shame of being subject to criminal proceedings which were ultimately abandoned; (j) your submission regarding being stood down since December 2019; and (k) your personal circumstances, prior service history and references. [11] The decision-maker determined the sanction imposed was in line with all mitigating circumstances raised by the second respondent, as well as community expectations.11 7 Ibid. 8 Ibid 372. 9 Ibid 320. 10 Ibid. 11 Ibid 323. -- 4 of 11 -- 5 [12] The decision-maker considered aggravating circumstances, including that:12 (a) the conduct occurred on multiple occasions and over a protracted two-year period which exacerbated its seriousness; (b) there is a clear and unequivocal obligation on the second respondent to perform her duties both ethically and with integrity; (c) there is a high level of trust expected of officers when exchanging information and intelligence within QPS and other external agencies; (d) the second respondent had put her personal interests in conflict with those of QPS by accessing information during and after the closure of a covert investigation; and (e) the second respondent's conduct undermined the reputation of QPS, particularly with external agencies, as an impartial and trustworthy organisation. [13] The decision-maker also considered issues relating to the timely progress of the matter as well as the second respondent’s:13 (a) previous good work; (b) exemplary service; (c) service training history; (d) completion of further integrity online packages; (e) length of service and experience; (f) current rank and position; and (g) education regarding professional development strategies which she had undertaken since December 2019. [14] The decision-maker also considered the second respondent's submissions with respect to liability.14 Applicable law [15] The decision of Willmott v Carless (‘Willmott’)15 confirms the nature of a review hearing before the Tribunal as being a rehearing on the evidence before the original decision-maker. [16] Pursuant to section 219P of the Crime and Corruption Act 2001 (Qld) (‘CCC Act’), the applicant may seek a review of a reviewable decision to this Tribunal. Section 219O(1) defines ‘reviewable decision’ as being: … a decision made under the Police Service Administration Act 1990 [(Qld) ‘PSA Act’)] that is mentioned in schedule 1, column 1. [17] Section 219Q(1) of the CCC Act provides: 12 Ibid. 13 Ibid 323-324. 14 Ibid 325. 15 [2024] QCA 115 (‘Willmott’). -- 5 of 11 -- 6 A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding). [18] The Court of Appeal in the decision of Willmott answered the question referred to it from the Tribunal in the following way:16 The Tribunal's review power under section 219Q(1) of the [CCC Act] is predicated on there being first shown legal, factual or discretionary error in the decision below. [19] The Court of Appeal also said:17 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 [Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)]. Section 219Q therefore prevails over s 20 of the QCAT Act. [20] This decision, which is material to this review, was handed down before the review proceeded to hearing. As such, on 26 August 2024, the parties were given directions to file and serve supplementary submissions, having regard to addressing the decision in Willmott. [21] In a proceeding for a review of a reviewable decision, the Tribunal may:18 (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 original decision-maker for the decision, with the directions the Tribunal considers appropriate. Parties’ submissions regarding Willmott [22] The applicant submits that Willmott was concerned with s 20(2) of the QCAT Act, rather than s 20(1). That being so, it remains that the purpose of the review of a reviewable decision is to produce the correct and preferable decision.19 [23] The first respondent submits that the Tribunal is not bound by s 20(1) because Willmott refers to s 20 as a whole. That is so. However, I note that the issue in Willmott, as identified by the Court, was:20 whether there is any inconsistency between s 219Q of the CCC Act and s 20 of the QCAT Act that results in s 219Q prevailing over s 20 of the QCAT Act to the extent of the inconsistency between them (as provided for by s 7(2) of the QCAT Act). (emphasis added) [24] It is a long-standing principle of administrative law that the purpose of a review jurisdiction is to produce the correct and preferable decision (or the correct or 16 Ibid 14 [43]. 17 Ibid 14 [40]. 18 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24(1) (‘QCAT Act’). 19 Ibid s 20(1). 20 Willmott (n 16) 8 [22]. -- 6 of 11 -- 7 preferable decision).21 It seems plain, then, that the suggestion that s 219Q of the CCC Act attempts to displace s 20(1) of the QCAT Act should be rejected as the inconsistency between the Acts is confined to the nature of the hearing in the strict sense – namely, whether the evidence before the review Tribunal should be confined to that before the original decision-maker (i.e., a rehearing) or not (i.e., a fresh hearing on the merits). [25] As this matter involves a rehearing, if this Tribunal is satisfied that an error of the type referred to in Willmott is apparent, then the Tribunal must make a decision that is the correct and preferable decision.22 Parties’ submissions regarding the correct and preferable decision Applicant’s [26] The applicant submits the decision was not the correct and preferable decision because the sanction: (a) was inadequate to achieve the purpose of discipline; and (b) demonstrated Wednesbury23 unreasonableness. [27] The applicant refers to inadequacy being an error of the kind described in House v The King:24 It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. [28] The applicant submits that the sanction was inadequate to achieve the purpose of discipline, including: (a) personal and general deterrence; (b) the protection of the public, maintenance of proper standards and public confidence in the police service; or (c) to reflect appropriate disapproval of the second respondent’s serious conduct. [29] In respect of deterrence, the applicant submits that any sanction must be sufficient to deter the second respondent from conducting herself in a similar way when tested by stress, adversity or temptation in the future and, crucially, to deter other officers from similar conduct. [30] The applicant noted the decision in Police Service Board v Morris25 to emphasise the point that the purpose of police discipline is the maintenance of: (a) public confidence in the police force; (b) the self-esteem of police officers; and 21 See, eg, Shi v Migration Agents Registration Authority [2008] HCA 31. 22 QCAT Act (n 19) s 20(1). 23 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680, 681 (‘Wednesbury’). 24 [1936] HCA 40. 25 [1985] HCA 9. -- 7 of 11 -- 8 (c) efficiency. [31] The applicant submits that the sanction imposed in the case does not meet that standard. The applicant notes that: Critically, the second respondent was also not required to undergo any period of mentoring, training or supervision to address the lack of integrity and insight underpinning the misconduct. [32] The applicant draws the conclusion that, because the sanction imposed was less than a sanction imposed in a matter of Spencer v Assistant Commissioner McCarthy & Anor (‘Spencer’),26 the sanction cannot be said to be adequate to reflect disapproval of the second respondent’s serious misconduct. [33] The applicant further submits that the sanction demonstrates Wednesbury unreasonableness, which involves a discretionary decision by a decision-maker that is ‘so unreasonable that no reasonable authority could ever have come to it.’27 Unreasonableness can be established where a decision lacks ‘evident and intelligible justification’.28 [34] The applicant noted that the decision-maker had made ‘intelligible and justifiable findings as to the seriousness of the misconduct’.29 Notwithstanding that, in addition to the applicant’s points of contention identified above (regarding deterrence and disapproval etc) the applicant argued that the sanction was one that no reasonable decision-maker could have concluded such a sanction was appropriate.30 To reinforce this point, the applicant relied on the decision of Crime and Corruption Commission v Queensland Police Service and Francis.31 [35] Ultimately, the applicant submits the Tribunal should set aside the decision and substitute its own, being one of at least local, lateral transfer and probation.32 First respondent’s [36] The decision-maker will abide the Tribunal’s decision.33 As submitted, this position is consistent with the principle articulated in R v Australian Broadcasting Tribunal; ex Parte Hardiman.34 The respondent says this principle is apt to apply because: (a) the relief sought by the applicant concerns her decision; (b) the respondent’s position avoids her becoming a protagonist during a review of her decision, so doing may endanger ‘the impartiality which [assistant commissioners are] expected to maintain in subsequent [disciplinary] proceedings which take place if and when relief is granted’;35 26 [2019] QCAT 375. 27 Wednesbury (n 26) 681. 28 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Applicant’s submissions (n 2) [30]. 29 Applicant’s submissions (n 2) [32]. 30 Ibid [33]. 31 [2015] QCATA 15. 32 Applicant’s submissions (n 2) [36]-[37]. 33 First respondent’s outline of submissions, filed in the Tribunal 16 March 2023 (‘First respondent’s submissions’). 34 (1980) 144 CLR 13. 35 Ibid 36. -- 8 of 11 -- 9 (c) the second respondent appears as the proper contradictor to the relief sought by the applicant. [37] The first respondent later referred to the following observations of Thomas JA in Aldrich v Ross:36 unless the Tribunal identifies a wrong principle of law, mistake of fact or failure to take into account relevant factors, it is appropriate ‘to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force’.37 Second respondent’s [38] The second respondent submits the Tribunal should find no error has been demonstrated and accordingly, dismiss the review. [39] The second respondent relies on the following factors:38 (a) The applicant’s concession that the decision-maker had regard to the purposes of discipline as outlined in s 7.1 of the PSA Act. (b) As an experienced intelligence officer, the imposition of the local, lateral transfer out of the intelligence section carried significant general and specific deterrence elements. The imposition of the $1,1128.80 fine further supports that deterrence was achieved. (c) Since the sanction was imposed, there has been no allegation of relapse in misconduct by the second respondent. (d) The second respondent’s training records (which she is unable to produce) will demonstrate the training she has undertaken as a result of being transitioned back into operational duties. (e) The second respondent had no prior discipline history (f) The conduct was not as serious as other examples. No information was released, nor was there any allegation of this kind. The present case is an example of suboptimal management of a conflict of interest rather than being planned and/or intended corrupt behaviour. Further, there are certain aspects of the conduct which support an intention to do the right thing. (g) There significant delay in these proceedings, initially caused by the failed criminal prosecution and legislation amendments and further delay whilst the Court of Appeal dealt with Willmott. [40] The second respondent submits these are significant factors for consideration by the Tribunal. Discussion [41] Since Willmott, it is necessary to show there was legal, factual or discretionary error in the decision below. [42] I am satisfied with the decision-maker’s findings of misconduct was justified and indeed this is not contested. 36 [2001] 2 QD R 235 (‘Aldrich’). 37 First respondent’s submission (n 43) 2 [4]; Aldrich (n 47) 257 [36]-[38]. 38 Submissions on behalf of the second respondent, filed in the Tribunal 10 September 2024. -- 9 of 11 -- 10 [43] It also appears that the applicant does not contest any factual error. It does submit that there has been a discretionary error in that the sanction imposed is inadequate. This could of course lead to a legal error if, for instance, wrong principles were applied. However, in this case the applicant submits the demonstrable error is one of exercise of discretion. [44] As above, the applicant relies on the following contentions in support of why the sanction is inadequate: (a) the respondent’s conduct amounted to an integrity issue; (b) the respondent’s conduct continued over a two-year period and thus amounted to protracted deception; (c) the decision-maker lacks insight into the seriousness of the misconduct; (d) the sanction does not achieve the main purpose of police discipline because it fails to: protect the public; uphold ethical standards; promote and maintain public confidence in the public sector; and meet the needs for general and personal deterrence. [45] The applicant submits the second respondent should have been placed on probation rather than fined. The fine, the applicant says, does not send sufficient message for deterrence, both specific and general. [46] So the question for determination is refined to: did the original decision-maker fall into error by imposing a fine and not probation? [47] To support the submission that the original decision-maker did fall into error, the applicant relies on the decision in Spencer. Spencer involved an officer who was originally reduced in rank from sergeant pay-point 3.6 to senior constable pay-point 2.10 after accessing official information from the QPS computer system. On review, the Tribunal set aside the original decision and substituted it for a reduction to sergeant pay-point 3.1 for two years and from then on, reduced to sergeant pay-point 3.5. In particular, I note in paragraph [26], where the Tribunal said: I accept that the disciplinary proceeding has caused the applicant to review his understanding of confidential information and procedures and it is submitted, and I also accept, that he has completed online learning products in relation to information access and ethical decision making, which has refreshed and reinforced his understanding of QPS policies and procedures. [48] In the present case, I accept the second respondent’s submissions that the sanction imposed was a significant punishment ending her career as an intelligence officer in QPS. The decision-maker took into account the professional development strategies undertaken since 2019 and noted the effect on the second respondent of the embarrassment and shame felt by her as a result of the abandoned criminal proceeding. All of which in my view are appropriate factors to have regard to and similar in nature to the considerations in Spencer. [49] The applicant also relies on the decision meeting the Wednesbury unreasonableness standard, that is, the decision was ‘so unreasonable that no reasonable authority could ever have come to it’. I do not agree that the decision under review offends the Wednesbury unreasonableness test. The decision-maker clearly set out in her reasons the factors taken by her into account in arriving at the sanction and the applicant -- 10 of 11 -- 11 conceded the decision-maker had proper regard to the purpose of discipline in s 7.1 of the PSA Act. [50] I am satisfied the original decision is correct, particularly as it was in line with the mitigating circumstances raised by the second respondent, as well as community expectations and the purpose of discipline as outlined in s 7.1 of the PSA Act. The original decision is comprehensive and one where Wednesbury finds application. The factors taken into account by the decision-maker clearly, at the very least, make the sanction within the appropriate range. [51] It is difficult to imagine how probation would materially give effect to general deterrence factors. The real general deterrence factor was the immediate local transfer out of State Intelligence Group, Crime and Intelligence Command to a general duties policing role in the Brisbane region; and [52] Probation may have been relevant to specific deterrence issues, but the original decision-maker took into account the second respondent’s previous unblemished history. Since the sanction was imposed, the second respond has had a lengthy period without any disciplinary issues. [53] I am therefore of the view that error has not been shown in the decision and accordingly the original decision is confirmed. [54] I am satisfied there has in fact been significant delay in finalising this proceeding, as outlined by the second respondent. However, having regard to my decision, I do not consider it necessary to consider the impact of the delay. Decision [55] It is the decision of the Tribunal that: 1. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), other than to the parties to this proceeding, publication of any information that may identify the second respondent and all third parties named on pages 338 and 339 of the section 21 material provided by the first respondent to the Tribunal on 14 September 2022 and the name of Operation TOV and any information about the operation is prohibited. 2. The Tribunal is not satisfied that, in making her decision, the Assistant Commissioner made a legal, factual or discretionary error. Accordingly, the review is dismissed. -- 11 of 11 --