Cavanagh v Gollschewski & Anor [2023] QCATA 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cavanagh v Gollschewski and anor (No 2) [2023] QCATA 36 PARTIES: ISAAC CAVANAGH (applicant/appellant) v STEPHEN GOLLSCHEWSKI (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) APPLICATION NO/S: APL133-21 ORIGINATING APPLICATION NO/S: OCR159-20 MATTER TYPE: Appeals DELIVERED ON: 12 April 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: The decision of the Tribunal of 28 April 2021 is set aside. The decision of the first respondent of 5 May 2020, that the appellant be dismissed from the Queensland Police Service, is set aside. In place of that decision, the Tribunal decides that the appellant be suspended from duty without pay for twelve months, pursuant to s 7.34(b) of the Police Service Administration Act 1990 (Qld), the suspension to take effect from the date on which the decision of the first respondent took effect. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL – QUEENSLAND – determination of sanction – driving while intoxicated – driving police vehicle without authorisation – vehicle ran off road and damaged – subsequent inappropriate behaviour while intoxicated – consideration of mitigating factors including psychiatric condition – sanction imposed Police Service Administration Act 1990 (Qld) s 7.34 -- 1 of 9 -- 2 Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151 Crime and Corruption Commission v McCarthy [2022] QCATA 106 O’Brien v Gollschewski [2014] QCATA 148 Price v Gee [2019] QCAT 179 Queensland Police Service v Compton (No 2) [2011] QCATA 246 Scott v Martin [2015] QCAT 423 Tolsher v Stewart (No 2) [2013] QCAT 590 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) (“the QCAT Act”) Applicant: C Gnech solicitor of Gnech and Associates Respondents: M Nicolson instructed by the Queensland Police Service Solicitors Office for the first respondent J Rodriguez legal officer for the second respondent REASONS FOR DECISION [1] In this matter on 1 December 2022 I allowed an appeal on a question of law against the confirmation of a disciplinary decision by the Tribunal, and granted leave to appeal so that the appeal could be conducted by way of rehearing: [2022] QCATA 166. The sanction imposed by the first respondent and confirmed by the Tribunal was to dismiss the appellant from the Queensland Police Service. I held that the Tribunal had made errors of law in rejecting the appellant’s psychiatric condition at the time as a mitigating factor. The effect of the grant of leave to appeal is that I exercise the discretion to impose a sanction afresh. After my decision was delivered the parties made further submissions in writing, which I have considered. The relevant conduct [2] There was no contest as to the facts involved in the matter, or that the conduct of the appellant amounted to misconduct. The following is taken from the reasons of the first respondent dated 5 May 2020, the reasons of the Member, and the submissions for the first respondent. On 30 March 3017 the appellant had been on duty at a criminal investigation branch until about 1 pm. About half an hour later, he began to consume alcohol. At about 7.45 pm he attended a police station where he obtained entry, took the keys to an unmarked police vehicle, and drove it away from the station, although he had no official police purpose in doing so, and was affected by alcohol at the time. [3] Shortly afterwards, while driving on a motorway, he was involved in a single vehicle accident, when the vehicle left the roadway, struck a road sign and an emergency telephone, and ended up in a roadside drain, in the process suffering extensive damage. Other police attended, a roadside breath test produced a reading of 0.177%, and later a blood alcohol concentration certificate was issued for a reading of 0.165%, a high range drink driving charge. He was charged, and subsequently pleaded guilty to, driving under the influence of liquor, being fined and disqualified from driving for -- 2 of 9 -- 3 six months. He also pleaded guilty to taking a vehicle without consent, and to driving without due care and attention. Repairs to the vehicle cost some $23,000. He was suspended from duty. [4] On 5 December 2018, while off duty, he attended a police social function at a restaurant on the first floor of a building adjacent to a marina. While there from about 12.15 pm he consumed alcohol, and at about 5.40 pm he went onto a balcony of the building and urinated over the side. I have seen a video recording showing him go to the edge of the balcony. Initially there was no one else visible from the video on the balcony, although another person joined him there, went to him, saw what he was doing and appeared to speak to him. So far as I could tell from the video, the balcony was over a walkway beside the marina. There was no evidence about just what was below, and whether anyone was directly affected by this. Aspects of the conduct [5] The respondents referred to a number of aspects of the conduct which they submitted had the effect of making this a serious matter. These were that drink driving was particularly serious for a police officer, because of his responsibility for upholding the law. This driving involved misuse of, and significant damage to, a police vehicle, and damage to other property. What happened showed that the appellant was in fact unable to drive safely, and had therefore been a threat to the lives and safety of other road users that night. [6] The second incident, although involving different conduct, was again an act disregarding proper behaviour and public welfare. It meant that the first could not be regarded as an isolated incident, and as both were associated with excessive consumption of alcohol, showed that the treatment the appellant had received in the interim had failed to prevent another occasion of misconduct as a result of excessive consumption of alcohol. In those circumstances, there could be no confidence that the appellant would not behave in a similar way in the future. This gives the second incident a more significant aspect than if it had stood alone. [7] The respondents submitted that the focus in fixing a sanction should be on the need to maintain appropriate standards of discipline with the Police Service, to protect the public, to uphold ethical standards and to promote and maintain public confidence. The relevant conduct, even if affected by psychiatric issues, showed that he was not a suitable person to be retained in the service. [8] Although the respondents were not able to identify a previous decision where similar conduct had resulted in dismissal from the service, it was submitted that all cases are different to some extent, and none presented the combination of serious features present in this case. The respondents advanced the submission that the appropriate sanction was dismissal from the service. Mitigating circumstances [9] For the appellant, it had been accepted previously that the relevant conduct was serious misconduct. The appellant relied on a number of mitigating features, summarised in the reasons of the Member at [2021] QCAT 162, [10] – [12]: [10] Delay may be relevant to mitigation. In particular, it gives the Tribunal the opportunity to assess the officer’s behaviour in the intervening period. Other mitigating factors include Senior Constable Cavanagh’s character, his acceptance of full responsibility for his conduct and co-operation with the -- 3 of 9 -- 4 disciplinary process, seeking intervention, an optimistic prognosis from his psychiatrist and his potential to continue to serve [11] References attested to Senior Constable Cavanagh’s good character and skilful career as a police officer, describing him as: (a) Of the utmost honesty, truthfulness and integrity; (b) Always going about his duties in a selfless and unassuming way; (c) Well-liked and respected by his colleagues and the community; (d) Showing a freshness and passion for the job; (e) Actively involved in the community; (f) Showing support, empathy and compassion to others; (g) A skilled, diligent and highly capable investigator; (h) Committed and dedicated to his work; (i) Professional, motivated and hard-working; (j) An exceptional role model to junior staff; (k) Of high moral and ethical standing; (l) A dedicated family man; (m) Performing selfless acts of kindness; and (n) Generous, reliable and encouraging. [12] Although these references predated Senior Constable Cavanagh’s relapse, the Tribunal is satisfied they show him as a good and capable police officer dedicated to serving his community. The Tribunal accepts that Senior Constable Cavanagh still has much to offer the community. [10] I accept all this as accurate. With regard to delay, the relevant period is from the second incident, on 5 December 2018, now a period of over four years. There had been no further evidence of inappropriate behaviour on the part of the appellant to the time of the hearing in the Tribunal, and to the time of the receipt of submissions in relation to sanction following the appeal. Although the appellant is no longer in the service, the absence of such evidence suggests that there has been no subsequent conduct of his which has come to the notice of police. [11] As well the appellant had a career of 20 years across two jurisdictions in police work, and had had no previous disciplinary matters. Also he has received two medals and six awards during his police service in Queensland. [12] There was also medical evidence that, at the time of the first incident, the appellant was suffering mental health problems, in the form of post traumatic stress disorder (“PTSD”) and alcohol abuse disorder. After the incident he sought professional case, and both were regarded as resolved, although in the latter case this proved too optimistic on the occasion of the second incident. A further report on 21 February 2019, after that incident, from the psychiatrist maintained the opinion that there was no risk of a relapse in the PTSD, but acknowledged that there was a risk of relapses -- 4 of 9 -- 5 with alcohol. There were features he identified1 which he considered contributed to the conduct on this occasion, and maintained the opinion that the appellant was fully fit and able to return to work. This expert opinion is uncontradicted. [13] The psychiatrist has attributed his behaviour on the first occasion to the effects of the PTSD. I accept that evidence, and consider that that behaviour was out of character and caused by that condition. That is relevant to the assessment of its significance. The behaviour on the second occasion involved inappropriate conduct following excessive intake of alcohol, but was of a completely different kind from the conduct on the first occasion. I do not regard the involvement of alcohol on both occasions as a factor of great importance, and expect that the appellant has learnt from this experience, and will be more circumspect in the future. [14] I have referred in my previous decision in this matter to the law in relation to the significance of psychiatric conditions in relation to disciplinary proceedings such as this, and do not need to repeat it. I consider that it is of some mitigating effect, certainly something to be regarded as a mitigating factor, along with the others, but not something which overwhelms the others, or the serious nature of, in particular, the first conduct. The fact that on the evidence the principal condition, the PTSD, has been successfully treated is significant to the fitness in the long term of the appellant as a member of the police service. Other decisions [15] The appellant referred to a number of decisions of the Tribunal where serious misconduct has nevertheless not resulted in dismissal from the service. In Austin v Martin [2018] QCAT 120 the officer had, at a social function while off duty, assaulted a woman, damaged her mobile phone, assaulted her husband, and offered beer to a person under age. The officer was heavily intoxicated, and had been in the service for five years at the time of the conduct. Before the Deputy Commissioner he admitted all the allegations and particulars, and was dismissed from the service. On review, the dismissal was suspended, on conditions operating for two years. Evidence of a previously undiagnosed psychiatric condition was admitted, and treated as a mitigating factor. One condition of the suspension was that the officer participate in an alcohol management programme. [16] In Price v Gee [2019] QCAT 179 the officer, who was said to have had a long and distinguished record, drank alcohol to excess on duty, and drove a police car at high speed, leading to a single vehicle accident where the car was written off. No-one was injured. On review a decision to dismiss him from the service was set aside, and in place he was dismissed, with the dismissal suspended for a period of three years, on conditions. In that matter there was again evidence of PTSD, which had subsequently been successfully treated, and which was regarded as a significant mitigating factor. [17] In Crime and Corruption Commission v McCarthy [2022] QCATA 106 the officer was sanctioned for three incidents of inappropriate sexual conduct while on duty, and disobeying a direction not to contact a witness in relation to disciplinary matters. The Appeal Tribunal imposed a period of suspended dismissal with an operational period of three years, on the basis that if there was further similar misconduct during that 1 Lack of tolerance from long abstinence; nervousness attending a function with people he knew but had not seen for some time; frustration about the delay in the decision; shame from having to tell his story a number of times to different groups of colleagues; absence of a convenient toilet in the restaurant. -- 5 of 9 -- 6 period he would be summarily dismissed. That officer had an excellent record otherwise, and suffered from PTSD from incidents while on duty, which was undiagnosed at the time, and which was not fully treated or resolved at the time of hearing. The Appeal Tribunal expressed strong disapproval of the conduct in that matter, although the conduct is described in such general terms that it is difficult assess the significance of this.2 [18] In that matter the Appeal Tribunal applied the general approach in Legal Services Commissioner v Yarwood [2015] QCAT 208, albeit in a non-binding way, although I note that that Tribunal did not consider the effect of the decision of the Victorian Court of Appeal in Quinn v Law Institute of Victoria Ltd (2007) 27 VAR 1, discussed in my earlier decision. Since in the present case the factors listed in Yarwood (supra) are met, it is unnecessary for me to consider the point further. [19] In Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151 an experienced officer had failed to undertake a proper investigation of an allegation of assault by another police officer, including misrepresenting the effect of video evidence, leading to an inappropriate recommendation that no charge be brought. This was corrupt conduct, although not engaged in for personal advantage or gain: [58]. It occurred at a time when the officer was facing a very heavy workload, and considerable personal stress from health issues in his family. In addition there had been good behaviour over an intervening period of ten years, a good record otherwise and many references from inside and outside the service, although he had shown no insight into or remorse for his conduct. The officer was placed on probation for twelve months. [20] In the present matter at first instance the Member referred in a footnote to a number of decisions of the Tribunal concerning drink driving cases.3 In Tolsher v Stewart (No 2) [2013] QCAT 590 a senior sergeant was driving with a reading of .15 when stopped by two constables, whom he tried to persuade not to test him, conduct the Tribunal regarded as worse than the drink driving offence itself. He otherwise had a good record of 20 years service, and produced references about his work after the relevant conduct. After reviewing a number of earlier decisions, the Tribunal imposed a demotion to sergeant, suspended for two years. [21] In Queensland Police Service v Compton (No 2) [2011] QCATA 246 the officer was stopped when driving erratically and had a reading of 0.235, for which he was later convicted. He had served for less than two years. He did not attempt to avoid the consequences when stopped, was off duty, in his own vehicle, had caused no damage or injury, and was under particular personal stress at the time. The Tribunal set aside a sanction of dismissal and substituted dismissal suspended for two years on stringent conditions,4 confirmed on appeal by the Appeal Tribunal. [22] In O’Brien v Gollschewski [2014] QCATA 148 an officer drove her own car after a function while off duty and on testing recorded a reading of 0.07. She had considered the amount of alcohol consumed, and thought she was under the limit, but had miscalculated. She had an excellent record during seventeen years of service, and there were no aggravating circumstances. On appeal her sanction became reduction in pay from 2.9 to 2.8 for six months, said to be consistent with the matrix for drink- 2 Some additional information is given in the decision under appeal at [2022] QCAT 529. 3 [2021] QCAT 162 at n 11. 4 [2010] QCAT 384. -- 6 of 9 -- 7 driving in the Commissioner’s Circular, and earlier decisions of the Tribunal, as to which the Judicial Member made some pertinent comments at [48]. [23] In Scott v Martin [2015] QCAT 423 the misconduct alleged and accepted was drink- driving, attending for duty affected by alcohol and lying to a superior about how she travelled there. She had initially returned a reading of 0.121, and was sent home, but when next reporting for work she admitted the conduct. The incident occurred at a time when she was under particular stress because of her family and work situation. She was reduced in rank to constable for six months, with conditions on her resuming her former rank, a sanction confirmed by the Tribunal. The Member noted that it was not just a drink-driving case, but was more serious because of her presenting for duty while affected, and her lying. [24] In Hume v Keating [2016] QCATA 67 the sanction imposed for drink driving with a reading of 0.14 was a one point reduction in pay for twelve months, suspended on condition of completing one hundred hours community service. There were mitigating circumstances including medical evidence of depression, then untreated, but no particular aggravating circumstances. The sanction was confirmed on review and an appeal was dismissed. [25] It was submitted for the respondents that the present case involved aggravating circumstances apart from the drink-driving, and that the “relapse” in December the same year showed that the appellant had a problem with alcohol that could not be controlled, making him unfit to remain in the service. Some of the cases referred to above do contain aggravating circumstances, such as Tolsher (supra) where the abuse of his position was regarded as more serious, and Price (supra) where a police car was damaged and written off, and is the prior decision closest to this. [26] The respondents have not referred me to any prior decisions of the Tribunal which are sufficiently similar to provide some guidance, and which resulted in the officer being dismissed from the service. I am aware of some cases where dismissal has been sustained by the Tribunal, but in circumstances not comparable to the present. My impression is that the respondents are seeking to sustain a sanction which is out of line with earlier decisions of the Tribunal. I also note that, although I was told that there is still a Commissioner’s Circular as discussed in earlier cases, the respondents have not sought to rely on it to support their submission seeking dismissal. Consideration [27] The essence of a disciplinary proceeding such as this is protective. The functions of the police disciplinary system include protecting the public, upholding ethical standards in the police service and promoting public confidence in the police service. The established approach is to take into account the objective seriousness of the relevant conduct, and to balance it against the mitigating factors so as to determine an appropriate sanction which satisfies the requirements of the legislation, without being punitive. [28] The conduct on the first occasion was certainly quite serious, and it is fortunate that no member of the public was harmed by it. In relation to the conduct on the second occasion, it was inappropriate but there has been insufficient attention paid to the specific circumstances. Neither the first respondent nor the Member at first instance seems to have given any consideration to what I regard as the most important factor, what was underneath the appellant that he was urinating on. It was not a case where he was deliberately urinating on someone, or in the view of someone, and although it -- 7 of 9 -- 8 would have been possible for someone to have seen him, he appears from the video to have sought a relatively quiet, out of the way place to relieve himself. I also consider that this occasion is an insufficient basis to conclude that he just cannot be trusted in the future because of a continuing weakness for overindulging in alcohol. There was no evidence that any member of the public was in fact harmed by this conduct, although again, viewed prospectively, someone could have been. [29] Neither conduct involved any corruption or dishonesty, or any abuse of his authority as a police officer. [30] There is also the consideration that the appellant had otherwise a long and excellent record of police service, and was highly regarded by those who knew him. It appears to me that he has generally been a valuable asset to the service, and one who should not be too readily discarded, particularly when there is an explanation for this uncharacteristic behaviour, in the form of the PTSD, for which he has now, on the evidence, been successfully treated. I regard that as a mitigating factor of some significance. He also cooperated fully with both the criminal proceedings and the disciplinary investigation, has taken steps to obtain appropriate treatment, and has shown remorse for and insight into his conduct. He has also suffered a significant disruption to his career, which will be a continuing adverse effect on him as a result of this conduct. [31] Initially the appellant sought that the Tribunal substitute a sanction suspended for two years, on a number of conditions. In further submissions, the appellant sought an order that the appellant serve twelve months probation from his reinstatement, or in the alternative, that he be suspended for twelve months as from the date of the reviewable decision. The respondents, unhelpfully, confined their submissions to supporting dismissal. There appears to be some doubt as to whether the Tribunal still has the power to impose suspended dismissal,5 and in any case, I do not consider that it would be appropriate in the circumstances of this matter, particularly in view of the time that has passed since the reviewable decision. [32] The appellant has in fact been out of the police service since the reviewable decision, and was suspended from duty from March 2017. That is a long time, but given the length of his service, I expect he will be able to resume suitable duties, and if some re-training is required, no doubt it will be given.6 I do not think that a period of probation would be of any great benefit. It is obvious enough that what he needs to do is to avoid drinking to excess, which for him may mean to avoid drinking at all, but I am sure that he is well aware of that, and that, in view of these incidents on his record now, in a sense he will remain “on probation” for the rest of his career with the police service. That should be sufficient. [33] In all the circumstances, balancing the seriousness of the relevant conduct with the various mitigating factors, I consider that an appropriate sanction, to satisfy the requirements of the legislation, is to substitute a decision that the appellant be suspended from duty without pay for a period of twelve months. Pursuant to the QCAT Act s 24(2) this takes effect from the date on which the decision of the first respondent, that he be dismissed from the police service, took effect. That is what I intend. 5 This is mentioned in Lee (No 2) (supra) at [52]. 6 Some information about this from the respondents would have been helpful. -- 8 of 9 -- 9 [34] The further decision of the Appeal Tribunal is as follows: 1. The decision of the Tribunal of 28 April 2021 is set aside. 2. The decision of the first respondent of 5 May 2020, that the appellant be dismissed from the Queensland Police Service, is set aside. 3. In place of that decision, the Tribunal decides that the appellant be suspended from duty without pay for twelve months, pursuant to s 7.34(b) of the Police Service Administration Act 1990 (Qld), the suspension to take effect from the date on which the decision of the first respondent took effect. -- 9 of 9 --