Cavanagh v Gollschewski & anor [2022] QCATA 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cavanagh v Gollschewski & anor [2022] QCATA 166 PARTIES: ISAAC CAVANAGH (applicant/appellant) v DEPUTY COMMISSIONER STEPHEN GOLLSCHEWSKI (first respondent) And CRIME AND CORRUPTION COMMISSION (second respondent) APPLICATION NO/S: APL133-21 ORIGINATING APPLICATION NO/S: OCR159-20 MATTER TYPE: Appeals DELIVERED ON: 1 December 2022 HEARING DATE: 25 October 2022 HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: The appeal from the decision of the Tribunal of 28 April 2021 is allowed under s 146. Leave granted to the appellant to appeal from the decision of 28 April 2021 under s 147. Any further submissions in writing by either respondent be sent to the associate to the Deputy President of the Tribunal and the other parties by email on or before 9 December 2022. Any submissions in writing in reply by the appellant be sent to the associate to the Deputy President of the Tribunal and the respondents by email on or before 16 December 2022. The appeal under s 147 will be decided on the papers after any submissions in writing are received. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL – QUEENSLAND – determination of sanction – psychiatric condition as mitigating factor – requirements for – whether error in -- 1 of 7 -- 2 disregarding – whether discretion as to sanction to be exercised afresh Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147 Police Service Administration Act 1990 (Qld) s 7.1 Compton v Stewart [2010] QCAT 384 Flanagan v Gee [2020] QCAT 36 LCK v Health Ombudsman [2020] QCAT 316 Lee v Crime and Corruption Commission [2020] QCA 201 Legal Services Commissioner v Yarwood [2015] QCAT 208 Queensland Police Service v Compton [2011] QCATA 246 Quinn v Law Institute of Victoria Ltd [2007] VSCA 122, (2007) 27 VAR 1 R v Goodger [2009] QCA 377 R v Verdins (2007) 16 VR 269 APPEARANCES & REPRESENTATION: Applicant: C Gnech solicitor. 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] The first respondent took disciplinary proceedings against the appellant, a police officer, which resulted in a finding of misconduct against him, and a decision that he be dismissed from the Queensland Police Service. The appellant applied to the Tribunal to review the decision to dismiss him from the Service, but on 28 April 2021 a Member confirmed the decision to dismiss him from the service. On 12 May 2021, the appellant filed an application for leave to appeal or appeal from the decision of the Tribunal. [2] The appellant is entitled to appeal to the Appeal Tribunal on a question of law, but requires the leave of the Appeal Tribunal to appeal on a question of fact, or of mixed fact and law.1 As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.2 An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling inferences.3 If leave to appeal is granted, the appeal is by way of 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142. 2 Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. 3 Craig v Mark Kelada Auto Sellers [2016] QCATA 48 at [13]. -- 2 of 7 -- 3 rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146. The grounds of appeal [3] In submissions in writing the appellant relied on the following grounds: (a) The Tribunal’s decision erred as the sanction imposed does not properly reflect the new police disciplinary system, Police Service Administration Act 1990 (Qld) s 7.1 (“the Act”), a question of law. (b) The Tribunal’s decision erred because it failed to apply the legal principles applicable when a person is suffering a mental health diagnosis, a question of law. (c) The Tribunal erred in law because the disciplinary sanction ordered by the Tribunal is legally unreasonable, because it lacks any evidence and intelligible justification when all relevant matters are considered, a question of law. (d) The Tribunal erred in ordering the disciplinary sanction that it did because the decision overlooked or gave insufficient weight to factors and evidence favouring the first respondent’s decision, and gave undue weight to other factors and evidence. The appellant conceded that he required leave in respect of this ground. Ground one [4] The discipline process for officers of the Police Service is covered by Part 7 of the Act. Section 7.1 in that Part provides: The main purposes of this part are— (a) to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and (b) to ensure appropriate standards of discipline are maintained within the service to— (i) protect the public; and (ii) uphold ethical standards within the service; and (iii) promote and maintain public confidence, and officers’ confidence, in the service. [5] The appellant submitted that the sanction imposed, and the history of suspension from duty prior to dismissal, overlooked any aspect of rehabilitation, guidance or correction. There was apparently no consideration given to those aspects of the system, and the approach of adopting the sanction which maximises the protection of the public4 meant that they were necessarily overlooked. The approach of the Tribunal was, in effect, that a sanction of dismissal was always required in such a case, which was an error of law.5 4 Reasons [25], [36]. 5 Citing Lee v Crime and Corruption Commission [2020] QCA 201 at [46]. -- 3 of 7 -- 4 [6] The first respondent pointed out that Part 7 of the Act contains measures apart from disciplinary proceedings for providing guidance, correction and rehabilitation, but that the behaviour in this case was so serious that disciplinary proceedings was the only appropriate course. Before the Tribunal the appellant had conceded that dismissal was within range,6 and had not sought that any dismissal be suspended. The Tribunal had correctly stated the principles as to the purposes of disciplinary proceedings, and no error of law had been shown. [7] The second respondent submitted that the misconduct in this case was a serious breach of trust which undermined the reputation of the Police Service, so serious that it surpassed guidance, correction or rehabilitation, so that dismissal was the only appropriate sanction to maximise the protection of the public and to reflect current community expectations of the Police Service. There were no mitigating factors which could moderate or eliminate the nature and severity of the misconduct. The misconduct represented an overwhelmingly unacceptable series of decisions, where a sanction other than dismissal would not be appropriate. The mitigating factors cannot reduce the appellant’s culpability, nor the need for specific and general deterrence. It was submitted that no error of law had occurred. Consideration [8] I reject the submissions of the second respondent. They appear to be inconsistent with the reasoning in Lee v Crime and Corruption Commission [2020] QCA 201 and with the reasoning in Compton v Stewart [2010] QCAT 384. They also appear to disregard the effect of the appellant’s mental health issues on culpability and deterrence, a matter considered separately below. But I am not at all sure that those submissions reflected the reasons of the Tribunal. There is more force in the submissions for the first respondent. The reasons of the Tribunal should be considered against the background of what was actually in dispute in the matter. It was common ground that there had been serious misconduct, and that a disciplinary sanction was appropriate, the only issue being whether the ultimate sanction was appropriate, in the light of all the applicable mitigating circumstances. In those circumstances it is understandable that the reasons of the Member focused on the disciplinary sanction. [9] On the other hand, I am concerned with the stress given by the Member to the protection of the public, as if that were the dominant, or perhaps the only, consideration when determining an appropriate sanction. This is not the only matter mentioned in s 7.1(b), although it could be said that all of the matters mentioned could be advanced by imposing the most severe sanction possible for any misconduct. Despite occasional language which seems to support that approach,7 that has not in general been the approach adopted by courts and tribunals to disciplinary matters, in particular involving police officers. It has been one of balancing against the seriousness of the misconduct itself any relevant mitigating factors, to arrive at an appropriate sanction in the light of all relevant matters.8 6 Transcript p 1-14 line 9, p 1-9 lines 32-37. 7 It comes from the decision of Maxwell P in Quinn v Law Institute of Victoria Ltd [2007] VSCA 122, (2007) 27 VAR 1, at [31], a case involving disciplinary proceedings against a lawyer, where the Court of Appeal actually reduced the penalty imposed by the Tribunal. 8 See for example Queensland Police Service v Compton [2011] QCATA 246 at [29], [38]. -- 4 of 7 -- 5 [10] In the circumstances, in view of my conclusion about Ground two below, it is not necessary for me to come to a final conclusion as to whether this involved an error of law by the Member. Ground two [11] There was evidence before the Tribunal, which was apparently accepted, that at the time of the first incident the appellant was suffering from Post Traumatic Stress Disorder (PTSD) and Alcohol Use Disorder (AUD). The Member said that the existence of a “mental condition” at the time of the offending and hearing may be relevant to reduce culpability for the offending and its gravity, reduce the need for specific deterrence and remove general deterrence.9 The Member referred to the evidence, and said that because of the relapse, where the choices leading to it were similar to the original offending, the exculpatory effect of mental illness and the prognosis was reduced: [22]. [12] Then at [23] the Member said that the psychiatric evidence was not enough “to eliminate moral culpability or allow a return to work”, in four circumstances which were then listed. The first was: “Although PTSD and AUD were the significant causal factor, they were not an overpowering influence sufficient to militate a conscious awareness of the behaviour.” For this proposition, the Member cited Flanagan v Gee [2020] QCAT 36 at [102], [103]. In that matter, a different Member dealt with a submission, that the effect of the officer’s mental health condition reduced his moral culpability, by rejecting the proposition that culpability was removed, so as to exculpate him from culpability or show an inability to control his actions. That is not the relevant test; it is in effect the test for insanity in criminal law. If met, it removes all question of wrongdoing, but may demonstrate unfitness for other reasons. But the relevant test, as established now by a string of authorities, is that mental health issues not amounting to a defence of insanity are relevant as mitigating factors in criminal sentencing, and in relation to disciplinary proceedings.10 The passage cited from Flanagan applies the wrong test for the existence of a mitigating factor on the Verdins principle, and is not good law. It was an error of law by the Member to follow it. [13] The next circumstance given was that “No opinion was expressed on the weight to be attributed to each of the conditions or whether they were the “sole and dominant cause.” No authority was cited for this requirement as part of the test, although a decision was cited where apparently such a finding was made.11 In the criminal law context, there is no requirement that the relevant conditions be the sole or dominant cause of the offending, and mental health issues can be relevant to sentencing even if they were not a cause of the offending at all. In the context of disciplinary proceedings, in Legal Services Commissioner v Yarwood [2015] QCAT 208 at [79] the Hon J B Thomas QC proposed that one requirement for the application of the Verdins principle be that “the conduct would not have occurred had it not been for the” psychiatric disorder. Other decisions, including the decision in Quinn v Law Institute of Victoria (supra), have applied the Verdins approach without this 9 Reasons, citing Quinn (supra) at [36], [38]. This is referred to as the Verdins principle, from R v Verdins (2007) 16 VR 269 at [32]. 10 R v Goodger [2009] QCA 377 at [21]. See generally the decisions discussed in LCK v Health Ombudsman [2020] QCAT 316 at [36] – [40]. 11 The language is a tautology. A sole cause would necessarily be dominant; it would have to be. -- 5 of 7 -- 6 qualification. There is no justification for a more rigorous test. This was another error of law on the part of the Member. [14] The remaining two circumstances referred to a relapse which led to the further incident of misconduct. There was certainly a relapse of the alcohol use disorder; leading to further misconduct, but there was no evidence of a relapse in the PTSD. This however is incidental. The Member declined to treat the appellant’s mental health issues as a mitigating factor – [24] – and that was a consequence of the misapplication of the relevant law. [15] The first respondent submitted that the Member had correctly applied the relevant principles, referring in particular to the reasons at [15] and [16]. No particular justification was advanced in relation to the application of those principles at [23] and [24], where the errors of law were made. The second respondent submitted that the reasons at [23] served to outline deficiencies in the medical evidence, when in fact they exposed errors of law by the Member in the application of the Verdins principle. No attempt was made by either respondent to justify, by reference to authority, the way in which the test was applied by the Member in that paragraph. On my understanding of the authorities, such a justification would not have been possible. Conclusion [16] I consider that ground 2 has been made out. An error of law has been shown, and the appeal must be allowed. In those circumstances, it is not necessary to consider ground three. The position has been reached therefore where there are two courses open to me: I can allow the appeal and remit the matter to the Tribunal differently constituted for rehearing;12 or I can grant leave to appeal, so that the appeal becomes one by way of rehearing. In those circumstances, I can re-exercise the discretion as to sanction myself. [17] The errors of law made by the Member suggest that the medical evidence was not considered in the context required by the correct approach to the Verdins principle. That gives rise to concern about errors in the findings of fact. There is also concern about the way in which a particular passage from the judgment in Quinn (supra) was apparently applied out of context. I have mentioned this matter previously. Careful examination of that judgment shows that it is necessary to consider the approach of the Court as a whole, rather than attributing great significance to particular passages contained in it cited in isolation. When read as a whole, it is clear that the Court approached the question of sanction in the traditional way, as an exercise in taking into account all of the relevant factors, both protective and mitigating factors, when coming to a conclusion as to the appropriate sanction. [18] Another factor which is relevant to the question of leave is the issue of delay. The event which triggered the disciplinary proceeding occurred on 30 March 2017, the decision of the first respondent was made on 5 May 2020, and it has taken two and a half years for matters to get to this decision. If the matter is sent back for rehearing, there will be a further delay. That would be undesirable. [19] At the end of the oral hearing, both respondents indicated that they were content for me to conduct the rehearing, if the appeal was otherwise allowed, rather than send the matter back to the Tribunal. They did however indicate that they may wish to provide 12 Pivovarova v Michelsen (2019) 2 QR 508 at [9]. -- 6 of 7 -- 7 further written submissions. The appellant did not seek to rely on further submissions but should have a right of reply if the respondents do put on further submissions. [20] The decision of the Appeal is therefore as follows: (a) The appeal from the decision of the Tribunal of 28 April 2021 is allowed under s 146. (b) Leave granted to the appellant to appeal from the decision of 28 April 2021 under s 147. (c) Any further submissions in writing by either respondent be sent to the associate to the Deputy President of the Tribunal and the other parties by email on or before 9 December 2022. (d) Any submissions in writing in reply by the appellant be sent to the associate to the Deputy President of the Tribunal and the respondents by email on or before 16 December 2022. (e) The appeal under s 147 will be decided on the papers after any submissions in writing are received. -- 7 of 7 --