Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2025] QCATA 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: APPLICATION NO/S: ORIGINATING APPLICATION NO/S: MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: DECISION OF: Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2025] QCATA 33 CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER ALLAN MCCARTHY (first respondent) PSB (second respondent) APL370-20 OCR246-18; OCR321-18 Appeals 24 April 2025 On the papers Brisbane Judicial Member Rinaudo AM ORDERS: Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and any information that may tend to identify PSB and any third parties other than the original decision-maker and investigating officers for the disciplinary matters in the proceeding APL370-20 is prohibited. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where applicant is a service police officer – where applicant suffers from PTSD – where non-publication order has been in place for five years – whether there are ‘special circumstances’ – whether final non-publication order should be made Police Service Administration Act 1990, s 7.1 Queensland Civil and Administrative Tribunal Act 2009, s 3, s 66, s 90 Crime and Corruption Commission v Acting Deputy Commissioner Wright (No. 2) [2021] QCAT 304 -- 1 of 7 -- 2 Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106 Legal Services Commissioner v XBN [2016] QCAT 471 Re Bowen [1996] 2 Qd R 8 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The issue for determination is whether a final non-publication order should be made in the terms imposed by the Appeal Tribunal. The Appeal Tribunal noted that the Tribunal had:1 prohibited publication of any information identifying PSB (the second respondent), and all third parties. Pursuant to s 66 of the QCAT Act, on my initiative, I make an order, unless otherwise ordered, in similar terms regarding the non-publication of any information identifying or tending to identify PSB or any third parties excluding officers who conducted the investigation and disciplinary process. [2] Having regard to the submissions of the applicant and the second respondent, as set out below, it is only necessary to determine if the second respondent should be included in the final non-publication order. History [3] The second respondent is a serving police officer, who was the subject of disciplinary proceedings. The findings of the Tribunal were appealed by the applicant to QCAT. [4] It is not necessary to revisit the second respondent’s conduct or the findings and sanction of the Appeal Tribunal, except as necessary, to address the issue for determination. It is sufficient to say that the Appeal Tribunal set aside the decision of the Tribunal and imposed a sanction of dismissal, suspended for two years. [5] On 8 July 2022, the Appeal Tribunal made orders allowing the appeal, and setting aside the Tribunal’s decision. The Appeal Tribunal Member made orders to the following effect: (a) An existing non-publication order made on 8 April 2019 is in effect, prohibiting the publication of identifying details of the second respondent and third parties until further order. (b) The Appeal Tribunal directed that parties may make written submissions about whether a final non-publication order should be made, or its terms, within 21 days of the decision, Otherwise, a final non-publication order will be made in the terms of the current interim order after 28 days.2 [6] The applicant provided written submissions dated 29 July 2022. 1 Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106, [127]. 2 Ibid [128]. -- 2 of 7 -- 3 [7] The first respondent provided written submissions dated “29 July 2021”. They are date stamped as being received by QCAT on 29 July 2022. [8] The second respondent provided written submissions dated 1 August 2022. [9] The matter has been given to me for determination as the original Appeal Tribunal member is no longer a member of QCAT. The Applicable Law and Jurisdiction [10] Section 66 of the Queensland Civil and Administrative Act 2009 (QCAT Act) provides for non- publication orders: 66 Non-publication orders (1) The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order— … (2) The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary— (a) to avoid interfering with the proper administration of justice; or (b) to avoid endangering the physical or mental health or safety of a person; or (c) to avoid offending public decency or morality; or (d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or (e) for any other reason in the interests of justice. … (4) The tribunal’s power to act under subsection (1) is exercisable only by— (a) the tribunal as constituted for the proceeding; or (b) if the tribunal has not been constituted for the proceeding— a legally qualified member or an adjudicator. [11] I am satisfied that I have jurisdiction to hear and determine the matter. Although I did not constitute the original Tribunal for the proceeding, as per s 66(4)(a), as that Tribunal can no longer be constituted. I have been appointed by the President of QCAT to reconstitute the Appeals Tribunal for the sole purpose of determining the application for a final non-publication order, pursuant to the powers conferred on the President by Part 3 Division 2 of the QCAT Act. Submissions [12] The applicant submits that the following order should be made: Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and any information that may tend to identify any third parties other than the second respondent, original decision- -- 3 of 7 -- 4 maker and investigating officers for the disciplinary matters in the proceedings OCR 246-18, OCR 321-18, and APL 370-20 is prohibited. [13] In other words, the present order continues, but the second respondent be removed from the order’s effect. [14] The first respondent agrees with the applicant that non-publication orders should be made with respect to third parties. However, the first respondent has not made any substantive submissions with respect to the inclusion of the second respondent in the orders. Instead, they have provided submissions generally about whether the second respondent should be included. [15] The second respondent submits that he should be included in a non-publication order. He submits that his “name and other identifying evidence should not be removed from the coverage of the non-publication order.” [16] The second respondent submits that it is not in the interests of justice to remove him from the orders, given his long service as a police officer and that amending the order places his mental health and safety at risk. It was noted, on appeal, that he was not dismissed from the Queensland Police Service (QPS) but was found to be fit to remain a police officer. [17] It was submitted that, in making the decision, the Tribunal should have regard to the specific findings in paragraph [117] of the Appeal Tribunal’s decision and the finding that “the significant causal factor for [the second respondent’s] misconduct was his diagnosis and that his PTSD is untreated but treatable.” It was also submitted that the Tribunal have regard, generally, to the second respondent’s mental health status and his career with the QPS. [18] The purpose of the disciplinary proceeding framework, as set out in section 7.1 of the Police Service Administration Act 1990, is to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers to ensure the protection of the public, upholding of ethical standards within the service, and to promote and maintain public confidence and officers’ confidence in the service. [19] It is submitted that: “non-publication orders are the exception and not the rule and that an order will only be made in special circumstances where the Tribunal considers that such an order is necessary”.3 [20] The applicant submits that “proceedings before the Tribunal are intended to be public. Police perform a public role and are entrusted with important powers and the public has a legitimate interest in knowing when a police officer has failed to uphold standards”.4 [21] It was further submitted that the second respondent’s conduct was serious enough to warrant a suspended dismissal. [22] Ultimately, it was submitted that the mental health evidence given by the second respondent’s psychiatrist as to the psychiatric impact of identification did not flow “as 3 Legal Services Commissioner v XBN [2016] QCAT 471, [14]; First Respondent’s Written Submissions [11]. 4 Applicant’s Written Submissions [6]. -- 4 of 7 -- 5 a logical consequence from what … [was stated] … about the effect of … [the]… proceedings”. [23] It was acknowledged that, given the sexualized nature of three of the substantiated matters, identification of the second respondent may cause embarrassment and stress to the second respondent and his family. The applicant noted the decision of Crime and Corruption Commission v Acting Deputy Commissioner Wright (No. 2):5 Police perform a public role and are entrusted with important powers. The public has a legitimate interest in knowing when a police officer has failed to uphold standards… The CCC is entitled by law to seek review of police disciplinary decisions. It is a risk for any officer who engages in misconduct that the matter will end up in a public forum, with the embarrassment which that can entail. Some protection might arguably be justified if a review proceeding was brought capriciously or on flimsy grounds, or merely with the intent of embarrassing an officer. However, that is not the situation here. [24] By contrast the first respondent further noted the decision of Legal Services Commissioner v XBN at paragraph [24]: As to public accountability and transparency, the object is not to punish the practitioner, but to protect the public. An aspect of this object is deterrence of other practitioners. This can, in circumstances contemplated by s 66(2) of the QCAT Act be achieved by publishing the sanction and outlining the findings in relation to the particular conduct which leads to the sanction. In circumstances where one of the requirements of section 66(2) is met as a pre-condition to the non-publication order, the broad objectives can be achieved without including the practitioner’s name. [25] The first respondent noted the decision of Re Bowen,6 where Demack J observed that disciplinary proceedings within the police service are analogous to disciplinary proceedings taken against a barrister. [26] The second respondent noted that the non-publication has been in place for three years (five years now). He submitted that it would be uncontroversial that the orders were properly made at the time to avoid endangering his mental health and safety. Since the Appeal Tribunal’s decision did not displace the finding that he is suffering from PTSD, and that the diagnosis was the significant causal factor for the out of character conduct, the non-disclosure order dated 8 April 2019 should remain in place. [27] It is submitted that it is in the interests of justice to protect him, and that a final non- publication order be made. Discussion and Decision [28] As noted above, the only issue for determination is whether the existing order, which has been in place for some five years should be made final, or whether the proposed order should remove the second respondent from the final non-publication order. 5 [2021] QCAT 304, [86]-[87]. 6 [1996] 2 Qd R 8. -- 5 of 7 -- 6 [29] Section 66 of the QCAT Act allows for non-publication orders to be made subject to the matters set out in subsection (2). For present purposes the second respondent relies on s 66(2)(d). That is, publication would be contrary to the public interest. [30] This is based on the matters set out in paragraphs [16] to [17] above. [31] Clearly, publication of information is usual. Section 3(e) of the QCAT Act sets out that the objects of the Act include the enhancement of the openness and accountability of public administration. Further, s 90(1) of the QCAT Act provides that proceedings in the Tribunal and reasons for decision are open to the public unless subject to a non- publication order or some statutory restraint. A non-publication order is the exception not the rule and will be made in special circumstances where the Tribunal considers that such an order is necessary [32] It is necessary to consider the matters set out in s 66(2), such that the Tribunal must determine that special circumstances exist requiring that such an order is necessary. [33] It is accepted that general deterrence will be an important factor to consider when making such an order. But, as noted in the decision of Legal Services Commissioner v XBN (see above), the broad objectives can be achieved without including the practitioner’s name. [34] I have taken into account the reference of the Appeal Tribunal to the cause and significance of the second respondent’s PTSD.7 [35] I also note that the Appeal Tribunal noted in paragraph [119] that: … there is no suggestion that PSB’s conduct in carrying out his operational police duties generally is compromised. PSB had not engaged in similar conduct despite the unresolved condition. PSB has developed some greater insight than he had through psychotherapy than he had at the time of the conduct, even though his PTSD is not fully resolved. [36] There is no evidence before me that there has been any significant change in the second respondent’s PTSD condition in the intervening period. I, therefore, accept that this issue, which was of concern to the Appeal Tribunal, is still applicable. [37] I accept that the diagnosis of PTSD is still applicable and was a substantial cause of the second respondent’s conduct. I accept that the second respondent has had a significant length of service with the QPS. I also note the current order has now been in place for some five years. I accept that publication would cause a significant risk to the second respondent’s mental health, together with embarrassment and stress to him and his family. [38] I am satisfied that these factors amount to special circumstances such that the usual rule of publication should not apply in this case. [39] Accordingly, having regard to the factors set out in s 66(2)(b) and (c) of the QCAT Act, I am satisfied that the order is necessary to avoid endangering the physical or mental health or safety of the second respondent and that publication would not be in the public interest. 7 Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106, [117]. -- 6 of 7 -- 7 [40] In my view these factors outweigh the usual rule of publication of the second respondent’s name. I make a final non-publication order in the same terms as the current order. Orders Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and any information that may tend to identify PSB and any third parties other than the original decision-maker and investigating officers for the disciplinary matters in the proceeding APL 370-20 is prohibited. -- 7 of 7 --