Crime and Corruption Commissions v Assistant Commissioner Maurice Carless & Anor [2022] QCATA 121

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commissions v Assistant Commissioner Maurice Carless & Anor [2022] QCATA 121 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant/appellant) v ASSISTANCE COMMISSIONER MAURICE CARLESS (first respondent) SENIOR CONSTABLE BKA (second respondent) APPLICATION NO/S: APL276-21 ORIGINATING APPLICATION NO/S: OCR207-20 MATTER TYPE: Appeals DELIVERED ON: 12 August 2022 HEARING DATE: 3 May 2022 HEARD AT: Brisbane DECISION OF: Senior Member Howard ORDERS: The appeal is allowed. The Tribunal’s decision dated 23 September 2021 is set aside. (i) The matter is returned to the Tribunal for reconsideration according to law. (ii) OCR207-21 is to be listed before the Tribunal for a Directions Hearing not before 14 September 2022. (i) Until further order, pursuant to s66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of: (a) the contents of a document or thing filed in or produced to the Tribunal; (b) evidence given before the Tribunal; and -- 1 of 19 -- 2 (c) any order made or reasons given by the Tribunal, is prohibited to that extent that it could identify or lead to the identification of the second respondent or any third party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings. (ii) Any party may file in the Appeal Tribunal two (2) copies and give to the other party one (1) copy of written submissions about whether a final non-publication order should be made and if so, the terms of such an order, by: 4:00pm on 31 August 2022. (iii) Unless otherwise ordered, the Appeal tribunal will determine the non-publication order on the papers, by written submissions from the parties and without an oral hearing, not before 4:00pm on 31 August 2022. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – where disciplinary sanction imposed – where sanction was probation of three years - whether probation greater than twelve months was available to the Tribunal – whether sanction was unreasonable Police Service Administration Act 1990 s 7.1, 7.36, 7.41, Division 10 (repeal and transitional provisions) Crime and Corruption Act 2001 s 219O, Schedule 1, Part 16 (savings provisions), s 219L, s 219Q(1), s 219Q(2), s 219Q(3), s 219S. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146 s 66 Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 Cavanagh v Deputy Commissioner Gollschewski [2021] QCAT 162 Crime and Corruption Commission v Assistant Commissioner Maurice Careless & Anor [2021] QCAT 323 Crime and Corruption Commission v Queensland Police Service and Anor [2015] QCATA 15 -- 2 of 19 -- 3 Flegg v CMC & Anor [2014] QCA 42 House v The King (1936) 55 CLR 499 Legal Services Commissioner v Yarwood [2015] QCAT 208 Lovell v Lovell (1950) 81 CLR 513 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 Minister for Immigration and Citizenship v Li [2013] HCA 18 Queensland Police Service v Compton (No 2) [2011] QCATA 246 Urquhart v Partington [2016] QCA 87 APPEARANCES & REPRESENTATION: Applicant: Z Valeska, in-house lawyer, Crime & Corruption Commission First Respondent: A Ireland, in-house lawyer, QPS Legal Unit Second Respondent: T Schmidt of Counsel, instructed by Gnech & Associates REASONS FOR DECISION [1] Senior Constable BKA (BKA) faced two disciplinary charges relating to his conduct between March 2016 and 6 June 2019. Matter 1 related to accessing official and confidential information in the QPS computer system without official purpose on some 40 or so occasions. Matter 2 related to driving a marked police vehicle, with his loaded firearm, and after taking prescription medication other than as prescribed by his doctor, when his body worn camera was activated and recorded BKA’s comments about his driving deteriorating and his sexual ideations regarding a child. [2] Assistant Commissioner Carless (the Assistant Commissioner) found both charges of misconduct substantiated. He imposed a sanction of 12 months’ probation on the condition that BKA may be asked to show cause why he should not be dismissed if he breached probation, or the Commissioner reasonably believes he is unsuitable to continue to be a police officer. He was also transferred to another station and required to perform duties, other than policing duties with any first year Constable, during the probation period, unless expressly otherwise authorised due to an emergent situation arising. BKA was also required to enter into a professional development strategy to manage risk and assist with rehabilitation for his mental health conditions. [3] The Crime and Corruption Commission (the CCC) applied in the Tribunal to review the sanction decision of the Assistant Commissioner. It sought orders that BKA be dismissed from the QPS. The Tribunal set aside the Assistant Commissioner’s sanction decision and substituted the following sanction: Senior Constable BKA be placed on probation for a period of three (3) years effective from 16 June 2020 on the following conditions: 1. Senior Constable BKA may be asked to show cause as to why he should not be dismissed if- (i) He breaches the probation; or -- 3 of 19 -- 4 (ii) The Commissioner reasonably believes he is unsuitable to continue to be a police officer. 2. Senior Constable BKA will not be able to perform policing duties with any First Year Constables until the period of his probation has come to an end unless authorised by a Commissioned Officer due to an emergent situation arising. 3. Senior Constable BKA will not commit misconduct. 4. Senior Constable BKA will enter into a Professional Development Strategy (PDSD) in writing designed to manage risk and to help with his rehabilitation and assist in his development of mechanisms to cope with any anxiety, depression and stresses identified in any report supplied by an accredited mental health specialist or worker. The strategies include: (i) Senior Constable BKA will contact the Southern Region Senior Psychologist within 14 days and prepare a treatment plan (in writing) as recommended by the Senior Psychologist (at QPS expense); and (ii) Review the treatment plan with the Senior Psychologist every six (6) months. [4] In essence, the Tribunal’s decision is in the same terms as the sanction imposed by the Assistant Commissioner except that the period of probation imposed was three years, rather than one year. [5] The CCC filed an application for leave to appeal and appeal in respect of the Tribunal’s decision. The grounds of appeal and the appeal process [6] The CCC’s grounds of appeal are as follows: (a) The Tribunal erred in imposing a sanction which was not lawfully open to it, being probation for a period of more than 12 months; (b) The Tribunal erred in imposing a sanction other than dismissal, which did not reflect the gravity of the misconduct as accepted by the Tribunal. [7] The determination of disciplinary sanction is made in the exercise of the tribunal’s discretion. There is a presumption in favour of the correctness of discretionary decisions.1 It is not enough that the appeal tribunal may have exercised the discretion differently had it decided the matter at first instance. It must be satisfied that an error has been made in the exercise of the discretion of the type identified in House v R.2 That is, it must be shown that the tribunal acted upon a wrong principle; took into account irrelevant considerations; failed to take into account relevant considerations; or, more rarely, if it amounts to a failure to exercise the discretion it was required to exercise, inadequate weight was given to relevant considerations such that the result is unreasonable or plainly unjust on the facts.3 The High Court of Australia held in 1 Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627 (Kitto J). 2 (1936) 55 CLR 499. 3 Lovell v Lovell (1950) 81 CLR 513; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 [41]-[42]; Minister for Immigration and Citizenship v Li [2013] HCA 18, [64]- [76]; Flegg v CMC & Anor [2014] QCA 42, [13]- [17]. -- 4 of 19 -- 5 Minister for Immigration and Citizenship v Li4 that a conclusion of unreasonableness may be objectively drawn even where a particular error in the reasoning is not able to be identified, in effect where a decision lacks ‘an evident and intelligible justification.’5 [8] In my view, both grounds of appeal are errors of law. Therefore, I must proceed to decide the appeal pursuant to s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [9] For the reasons explained below, the appeal must succeed. [10] If I am wrong and ground 2 involves a question of mixed law and fact,6 I would give leave to appeal in respect of it because there is a reasonable argument of error and a substantial injustice to be corrected, having regard to the matters later discussed in these reasons for decision. The Tribunal’s reasons for decision [11] It is useful to summarise the Tribunal’s reasons for decision before considering the grounds of appeal. [12] The Tribunal set out the particulars of the conduct it says BKA accepted. I observe here that it is common ground between the parties that the particulars of Matter 2 as set out by the Tribunal are incomplete: Particulars 5 to 11 are missing.7 Similarly, those particulars were missing from the Assistant Commissioner’s decision.8 Matter 2 is set out in full later. (It is also common ground that a particular was missing from Matter 1 from the Tribunal’s and Assistant Commissioner’s decisions. However, that particular related only to BKA’s acknowledgment of the conduct during a directed interview). [13] The learned Member summarised the Tribunal’s role in the review.9 The Tribunal observed that the misconduct is serious and calls into question whether BKA is fit to continue to serve as a police officer.10 It summarises the Assistant Commissioner’s findings as to the misconduct11 and sanction.12 At [30], the Tribunal says: [30] The prescribed officer acknowledges that BKA was at the time of the conduct affected by a substance but goes on to say that he (BKA) has ‘clearly stated [his] sexual desire for a child and as such there remains a question as to the risk [BKA poses to children]’. The prescribed officer says that the risk to children may be managed though the Working with Children ‘vetting regime’ and the expectation is police officers will be held to a higher standard of scrutiny and accountability 4 [2013] HCA 18; (2013) 297 ALR 225. 5 Minister for Immigration and Citizenship v Li [2013] HCA 18 [76]. 6 The Court of Appeal left the question open in Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201. 7 Transcript Appeal Tribunal hearing on 3 May 2022; I-14; Transcript Tribunal hearing on 5 May 2021, I-68 to I- 69. See also Appeal Book filed 15 December 2021, pp 104-108, Disciplinary Proceeding Notice dated 27 March 2020 which sets out the full particulars.. 8 Appeal Book, pp145-146. 9 Crime and Corruption Commission v Assistant Commissioner Maurice Careless & Anor [2021] QCAT 323 (or Reasons for decision) (‘RFD’), [10]-[12]. 10 RFD [21]. 11 RFD [23]-[32]. 12 RFD [33]-[37]. -- 5 of 19 -- 6 and dealt with more severely, should they fail to meet the high standards required for safely working with children. The prescribed officer describes the conduct as a serious example of misconduct: …For an officer to state so clearly and emphatically how he would sexually exploit a young child is unbecoming, and it is hard to imagine a more serious example of misconduct. Footnotes omitted. [14] The Tribunal then summarised the submissions of the CCC13 and BKA.14 It then set out what it considers the relevant legislative provisions of the police disciplinary regime,15 referring to the Tribunal’s power under the Police Service Administration Act 1990 (PSA Act) and the Crime and Corruption Act 2001 (CC Act) to impose sanctions, for example, dismissal and probation.16 In particular, it referred to s 7.34 PSA Act. It considered that the Tribunal may on review, suspend a dismissal under s 219L of the CC Act,17 and impose probation, in accordance with s 7.36 of the PSA Act, to enable the Commissioner to assess suitability to be a police officer during the probationary period.18 [15] The Tribunal held that the discretionary power to impose sanction required balancing of a number of factors to achieve the purpose of discipline, including the seriousness of the conduct and any relevant mitigating circumstances, with the purpose of ensuring standards within the police service and public confidence.19 It considered that each case must turn on its own facts as no two cases are identical.20 The cases referred to by the parties were found not to assist, as none were considered to be similar.21 [16] It found BKA’s misconduct was very serious, falling far short of the conduct reasonably expected of a police officer, and represented a ‘serious breach of trust and undermines the reputation of the QPS.’22 Further, it characterised the conduct as ‘disgraceful’ and ‘undermines public confidence in the QPS.’23 The sexualised comments BKA made concerning a child were considered an aggravating feature,24 for which there was no justification under any circumstances, and raised concerns about whether BKA was a risk to children.25 The Tribunal said the misconduct called into question BKA’s suitability to remain an officer.26 [17] The learned Member accepted that BKA was experiencing personal difficulties due to loss of his grandmother and mother within 5 months of each other and was affected 13 RFD [38]-[42]. 14 RFD [43]-[51]. 15 RFD [52]-[59]. 16 RFD [55]. 17 RFD [56]-[57]. 18 RFD [58]-[59]. 19 RFD [62]. 20 RFD [78]. 21 RFD [87]-[ 94]. 22 RFD [60]. 23 RFD [61], [68]. 24 RFD [61]. 25 RFD [68]. 26 RFD [64]. -- 6 of 19 -- 7 by prescription medication.27 However, it did not consider that the use of medication diminished the seriousness of the misconduct because of his family members unheeded warnings to him about the effects on him.28 [18] The Tribunal accepted BKA had taken steps to address his use of medication and personal stressors, and it accepted the evidence that BKA had engaged positively in counselling and appeared committed to addressing his mental health issues. 29 As submitted by BKA, the Tribunal further accepted that he had been working to the required standard since the sanction decision and that the conduct was out of character.30 [19] It said that a sanction of dismissal should not be arrived at lightly, 31 and the relevant considerations are to be balanced at the time of sanction, not when the misconduct took place.32 The Tribunal said that the question before it is whether BKA is presently fit for continued service in the QPS.33 [20] The Tribunal said as follows: [80] Here, the public interest weighs heavily against BKA’s fitness to continue as a police officer without a period of supervision and support. In my view the seriousness of the conduct including the sexualised comments made about a child during a time when BKA was taking prescription medication and experiencing personal stressors is not to be ignored. On the other hand, BKA accepts the conduct, is remorseful, has taken steps to address his behaviour, has many years of good service and a QPS medal of honour and awards in recognition of his years of service. In my view, there is considerable investment in BKA’s years of service and training that should not be ignored. These are considerations that also weigh heavily against a sanction of dismissal. [21] It then went on to say: [82] That said, the decision to impose a period of probation for only 12 months is in my view not a sufficient period of time to ameliorate concerns about BKA’s fitness to continue as a senior constable of police that at the expiration of 12 months allows him to supervise junior officers without supervision and support, given the mental health issues that BKA continues to address through counselling sessions. [83] A period of probation for a period of 3 years subject to conditions that continue to monitor BKA’s ongoing rehabilitation and continued fitness to serve as a police officer is in my view appropriate in all of the circumstances of this matter. [22] The Tribunal noted BKA’s otherwise unblemished record and early acceptance of the conduct, and willingness to participate in treatment for his mental health issues.34 It concluded that dismissal was not the correct and preferable decision in all of the circumstances, particularly referring to his demonstrated good conduct since the 27 RFD [70]. 28 RFD [71]. 29 RFD [72]. 30 RFD [75], [76]. 31 RFD [78]. 32 RFD [79]. 33 RFD [79]. 34 RFD [84]. -- 7 of 19 -- 8 commencement of the disciplinary proceedings and his engagement in rehabilitation to address his personal issues. 35 [23] The learned Member found that public confidence and protection of the public weighed heavily in the matter, repeating that a period of 3 years’ probation, with conditions permitting QPS to monitor his ‘suitability to continue to be a police officer,’ was appropriate to ‘ameliorate any concerns’ about ongoing treatment of BKA’s mental health issues and personal stressors that were present when the misconduct occurred.36 The Tribunal considered this appropriate in balancing the seriousness of the conduct; the personal issues BKA was experiencing at the time of the conduct; his length of service; senior position, and it seems, the investment in his training’ stating that it considered 3 years’ probation with conditions sufficient to achieve the purpose of discipline.37 [24] The Tribunal then turns to consider the conditions to be imposed. The conditions imposed were set out earlier. [25] Matter 2 [26] It is useful, noting that the Tribunal set it out in part only, to here set out Matter 2 in full. It is as follows: Matter 2: On 4 April 2017 at Stanthorpe your conduct was improper in that you whilst on duty behaved in a manner unbecoming of a police officer. Further and better particulars: 1. On 4 April 2017 you accidentally recorded yourself on a body worn camera while you were driving a marked police vehicle; 2. At the time of making the recording you made comments where you insinuated you had removed another person’s prescription medication without consent, including: a. You discussed, with yourself, that you did a search and ‘the last one had no good stuff that I want’. b. You discussed, with yourself, that you went to Tanya’s with Jimmy and ‘took a bit of stuff’. c. You referred to numbers 5’s, 10’s and 20’s when talking about ‘the good stuff’ d. You discussed, with yourself, that you could identify your driving was getting worse and having trouble staying on the road. e. You discussed, with yourself, that the potheads only had pot and normally there are scraps lying around. 35 RFD [85]. 36 RFD [95]. 37 RFD [84], [96]. -- 8 of 19 -- 9 3. You then disclosed some sexual ideations regarding wanting to have sex and commit sexual acts with ‘Little [redacted]’ and identified sexually explicit acts you would like to perform. 4. On 16 August 2019 you were interviewed by Detective Acting Sergeant Flanagan and Detective Inspector Prestidge of Ethical Standards Command. 5. During the interview you admitted that on the day in question you were working 8am to 4pm, driving a marked police vehicle and carrying your accoutrements. 6. You admitted to having some physical injuries that required you to take some prescription pain medication, namely Lyrica and Targin. 7. You admitted that the only [redacted] you know, was a young female [redacted], 8. You admitted that at the time of the directed interview, [redacted] was 15 or 16. ([redacted] was 12 years old at the time of the recording in 2017). 9. You admitted that at the time of the recording you were under the influence of prescription medication and that you would not have been in a good position to attend to your duties. 10. You admitted that you did not take you prescription medication ‘Lyrica’ as directed by your Doctor. 11. After initially denied (sic) taking any medication from properties where you were conducting searches, you admitted to becoming worried, that after listening to the recording, that you make have taken some prescription medication and cannot remember it. Ground 1: Did the Tribunal impose a sanction that was not lawfully open? [27] As set out earlier, the Tribunal made a decision to place BKA on probation for a period of 3 years with conditions. [28] Relevantly, Chapter 5 Part 3 of the CC Act provides for review of particular police disciplinary decisions (reviewable decisions) made under the PSA Act and mentioned in Schedule 1 column 1 of the CC Act.38 The particular reviewable decisions include decisions under the PSA Act Part 7 Division 4 to impose or not to impose a disciplinary sanction on an officer. [29] A review under Chapter 5 Part 3 is by way of rehearing on the evidence before the original decision-maker,39 subject to QCAT’s discretion to give leave for additional evidence in prescribed circumstances.40 If leave is given, the review is by way of rehearing on the original evidence and on the new evidence adduced.41 If the tribunal on review sets aside the reviewable decision and substitutes another decision, it has the same powers as the Commissioner of Police under the PSA Act Part 7 Division 5 in imposing disciplinary sanction.42 In effect, it may impose any sanction provided 38 Crime and Corruption Act 2001 s 219O and Schedule 1 (‘CC Act’). 39 CC Act s 219Q(1). 40 CC Act s 219Q(2). 41 CC Act s 219Q(3). 42 CC Act s 219S. -- 9 of 19 -- 10 for in the PSA Act Part 7 Division 5, whether or not the original decision maker’s power to impose sanction was more limited. [30] The PSA Act defines misconduct to mean conduct that is ‘disgraceful, improper or unbecoming an officer’; or ‘shows unfitness to be or continue as an officer’; or ‘does not meet the standard of conduct the community reasonably expects of a police officer’.43 [31] Part 7 of the PSA Act provides for discipline of officers. Part 7 Division 1 sets out the main purposes as follows: 7.1 Main purposes of part 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. [32] Broadly, Part 7 Division 4 provides for the internal process of starting and hearing disciplinary proceedings against an officer. Misconduct is a ground for disciplinary action.44 [33] Part 7 Division 5 provides for the disciplinary sanctions that may be imposed on an officer under, relevantly, Division 4.45 Section 7.34 of the PSA Act in Part 7 Division 5 sets out the disciplinary sanctions as follows: 7.34 Disciplinary sanctions (1) Each of the following sanctions is a disciplinary sanction— (a) dismissal; (b) suspension from duty without pay for not longer than 12 months; (c) probation for not longer than 12 months; Note— See also section 7.36 in relation to probation. (d) demotion, whether permanently or for a stated period; (e) comprehensive transfer; (f) local transfer; (g) performance of up to 100 hours of community service; 43 PSA Act s 1.4, ‘misconduct’. 44 PSA Act s 7.4(1)(a). 45 PSA Act s 7.33. -- 10 of 19 -- 11 Note— See also section 7.39 in relation to community service. (h) a fine of up to 50 penalty units; Note— See also section 7.40 in relation to fines. (i) a reprimand. [34] In particular, as set out, s 7.34(1)(c) provides that probation may be imposed ‘for not longer than 12 months.’ [35] Section 7.36 of the PSA Act applies if probation is imposed. It provides, among other things, for the purpose of probation (namely, to enable the commissioner to assess the officer’s suitability to continue as an officer and for show cause proceedings46) and for conditions to be imposed on the probation.47 [36] The CCC submits, both the Assistant Commissioner and BKA acknowledge, and I accept, that the Tribunal had no power to impose a term of probation of more than 12 months, namely here, 3 years. The learned member materially erred in law by imposing a sanction that the enabling legislation did not provide for it to impose. For the reasons explained in relation to this ground of appeal, the appeal must succeed. [37] However, and in case I am wrong in my conclusions about this ground of appeal, I must in any event consider each of the grounds of appeal.48 [38] Before turning to consider ground of appeal 2, I make the following observations because, for reasons explained in the paragraphs that follow, I intend to remit the matter back to the Tribunal for reconsideration. Although it did not suspend the sanction, the Tribunal referred to s 219L of the CC Act as permitting the Tribunal to suspend the sanction imposed if it considered it appropriate to do so. However, s 219L applies only to reviews under Chapter 5 Part 2 of the CC Act, not Chapter 5 Part 3 as was applicable here. Counsel for BKA concedes that he led the Tribunal into error in relation to the applicability of s 219L in the review proceeding. [39] For completeness, I observe that prior to amendments to the police disciplinary regime effective as of 30 October 2019, the Tribunal in a disciplinary review concerning a serving officer, had power to suspend a sanction under s 219L. The current s 7.41 of the PSA Act provides for suspension of sanctions, but it specifically does not apply if the sanction imposed is dismissal or probation.49 Ground 2: Was imposing a sanction other than dismissal in error because it did not reflect the gravity of the misconduct? The parties’ submissions [40] The CCC submits in essence that the Tribunal’s reasoning, and characterisation of the misconduct, should have led it to conclude that dismissal was the only option open to 46 PSA Act s 7.36(4). 47 PSA Act s 7.36(2). 48 Urquhart v Partington [2016] QCA 87. 49 ` PSA Act s 7.41(1). -- 11 of 19 -- 12 it given the seriousness of the misconduct and the protective function of the police disciplinary regime. [41] In particular, it refers to the following paragraphs from the Tribunal’s reasons for decision: [1] On 4 April 2017, Senior Constable BKA took prescription medication and drove a marked police vehicle with his firearm. He was alone at the time and his body worn camera was activated. The camera recorded BKA’s comments about his driving getting worse and sexual ideations regarding a child. [2] On other occasions BKA accessed information on the Queensland Police Service (QPS) QPRIME system without an official purpose. [21] The conduct is serious and calls into question BKA’s fitness to continue in service as a police officer. [64] In the present case, BKA’s conduct is very serious and brings into question his suitability to remain a police officer. [68] The conduct on 14 April 2017 is disgraceful and it is difficult to understand and indeed there is no justification for making sexualised comments about a child under any circumstances. It is expected that members of the service will serve and protect the community particularly the most vulnerable such as children. BKA’s conduct undermines the public confidence in the QPS and raises concerns about whether he is a risk to children. [42] The CCC notes that the sentiment expressed by the Tribunal at paragraph [21] was repeated at [64]. Further, it observes that the Tribunal also described the conduct as ‘disgraceful and undermining the public confidence in QPS’; 50 ‘far short of the standard of conduct the community reasonably expects of a police officer’; 51 putting ‘himself and others at risk’ by deciding ‘to drive affected by prescription medication.’52 [43] The learned Member was not satisfied that the use of prescription medication for back pain, which BKA did not realise was impacting him as it did, diminished the seriousness of the conduct.53 It observed that family members had spoken to him about his behaviour while taking the medication and he had ignored the warnings.54 [44] The CCC relies upon the Appeal Tribunal’s decision in CCC v Francis,55 in which it was held that the circumstances of the misconduct there were so serious, and over a very extended period, such that they ‘overwhelm any mitigating factor and emphasis the unreasonableness of the suspension of the dismissal’.56 Further, the Appeal Tribunal there held as follows: 50 RFD [61] 51 RFD [60]. 52 RFD [60]. 53 RFD [70-71]. 54 RFD [71]. 55 [2015] QCATA 15. 56 Ibid, [52]. -- 12 of 19 -- 13 [15] …No Member, apprised of the detailed circumstances of Mr Francis’ misconduct and in the necessary context of the significant public confidence requirements in the proper administration of the QPS, could have suspended the dismissal. [45] The CCC argues that in the circumstances, the gravity of the misconduct, including sexual ideation of a minor, far outweighed the mitigating circumstances taken into account by the Tribunal. [46] Also, it submits that the lengthy 3 year probation which the Tribunal in error sought to impose indicates the concern held about BKA’s fitness to serve in the future. As a consequence, it argues that the only correct and preferable sanction is dismissal. It relies upon Cavanagh v Deputy Commissioner Gollschewski57 citing the Appeal Tribunal decision of QPS v Compton (No 2)58 in which the Tribunal held that personal factors, while relevant, do not prevail over the protective requirements.59 [47] The Assistant Commissioner submits that the Tribunal was alive to the availability of dismissal as a sanction. Further, he submits the Tribunal noted that dismissal was not to be arrived at lightly and the sanction to be imposed had to balance relevant considerations at the current time, not when the misconduct took place.60 He submits that the prescribed purposes of discipline are set out in the PSA Act,61 and that discipline is not punitive, but rather directed to maintaining public confidence, and other officers’ confidence, in the police force. It refers to the disciplinary sanctions available as set out in PSA Act in s 7.34, and factors to be considered in s 7.35(3) including sanction guidelines. [48] The Assistant Commissioner submits that the critical question is whether the finding of the Tribunal that dismissal was not the correct and preferable decision was available on the evidence before the Tribunal and did not fall outside the proper exercise of the Tribunal’s discretion and did not involve an error of law of the kind referred to in House v The King.62 [49] BKA submits that his fitness to remain a police officer was a live issue before the Tribunal below. He submits that the Tribunal correctly identified its role on review;63 correctly summarised the proven misconduct;64 and balanced the seriousness of the misconduct against the relevant mitigating factors.65 He argues that it also had regard to the public interest by way of the investment in BKA’s training and his otherwise good service history;66 as well as his personal difficulties after the loss of his grandmother and mother within 5 months of one another, and the impact his prescription medication had on him.67 57 [2021] QCAT 162. 58 [2011] QCATA 246, [26]. 59 RFD [34]. 60 RFD [79] 61 Police Service Administration Act 1990 s 7.1 (‘PSA Act’). 62 [1936] 55 CLR 499. 63 RFD [11]. 64 RFD [22]-[32]. 65 RFD [62], [76]. 66 RFD [77]. 67 RFD [70]. -- 13 of 19 -- 14 [50] He says the Tribunal accepted he had taken steps to address his use of medication and the stressors in his life, as well as, the opinion of his mental health worker that he engaged positively in counselling and appeared committed to addressing his mental health issues.68 BKA also submits that the Tribunal had the benefit of time having passed when assessing his suitability to remain an officer, noting it accepted that he was performing to the requisite standard with no further instances of misconduct.69 He argues it is apparent from the Tribunal’s orders that the learned Member accepted he remained fit to continue as an officer, expressly rejecting dismissal as the correct and preferable decision.70 Did the Tribunal err in imposing a sanction other than dismissal having regard to the gravity of the misconduct? [51] In case I am wrong in allowing the appeal on ground of appeal 1, I turn to consider and make observations about the other alleged errors raised in support of ground of appeal 2. [52] As the CCC submits, the Tribunal found BKA’s conduct on 4 April 2017 disgraceful, and that there was no justification for making sexualised comments about a child under any circumstances, and that it raised concerns about whether BKA was a risk to children.71 The Tribunal says that the question before it is whether BKA is currently fit for continued service as a police officer.72 It says public interest weighs against his fitness to continue as an officer without a period of supervision and support.73 The Tribunal considers other factors weigh in BKA’s favour: he is remorseful, has many years of good service, subsequent good conduct and an ongoing commitment to his rehabilitation.74 The Tribunal concluded that dismissal is not the correct and preferable decision.75 [53] The Tribunal’s finding that dismissal is not the correct and preferable decision was made in the context of its mistaken understanding that it could impose an extended period of probation of 3 years during which BKA may receive supervision and support. At one stage, the Tribunal discusses BKA’s fitness to be a senior constable and found that one year of probation was an inadequate period to ameliorate concerns about his fitness to be a senior constable, who would at the end of the 12 month period, be entitled to supervise junior officers without supervision, given the mental health issues he continues to address.76 Further, the learned Member subsequently concluded that for reasons of public confidence and protection, a period of 3 years’ probation is necessary during which BKA’s suitability to continue as a police officer is monitored by QPS, in order to ameliorate any concerns about his ongoing treatment for his mental health issues and personal stressors present at the time of the misconduct.77 The learned Member considered that was so, in circumstances that at the time of the 68 RFD [72]. 69 RFD [75]. 70 RFD [85]. 71 RFD [68]. 72 RFD [79]. 73 RFD [80]. 74 RFD [80]. 75 RFD [85]. 76 RFD [82]. 77 RFD [83], [95]. -- 14 of 19 -- 15 Tribunal’s hearing of the review application, some four years had passed since the events of 4 April 2017 in Matter 2. [54] Given the learned Member’s expressed concerns about the need for a lengthy period of supervision and support, it is not at all clear that the Tribunal would have concluded that dismissal was not the correct and preferable decision in all of the circumstances if it had been cognisant that probation could be imposed for not longer than 12 months. [55] It seems to me that there are difficulties with the argument made by BKA, that it is apparent the Tribunal accepted he is currently fit to continue to serve as a police officer. In my view it is not clear from its reasons for decision that the Tribunal considered BKA presently fit to be an officer given that it found that a further period of three years is required, in effect, to assess his ongoing fitness to continue to be a police officer. Further, despite the Tribunal saying the question for it was BKA’s current fitness to continue as an officer, on a fair reading, it is not clear that it decided that question. [56] That said, although I do not need to decide the issue (and it was not raised in the appeal proceeding, nor the subject of submissions), I observe that pursuant to the current police disciplinary regime, it may not be necessary to form a concluded view about current fitness if a sanction of probation is imposed: s 7.36 of the PSA Act provides for the imposition of probation for not longer than 12 months with the specific purpose of the commissioner assessing the officer’s suitability to continue as a police officer. [57] In my view, the Tribunal’s misapprehension about the period of probation it could impose was so fundamental to its reasoning that it infected its finding that dismissal was not the correct and preferable decision. If it was necessary to do so, I would conclude that the Tribunal’s the exercise of its discretion in imposing sanction miscarried as a result. [58] Further, it is clear that it is the seriousness of the misconduct in Matter 2 which led the Tribunal to conclude that a further lengthy period of ongoing monitoring and probation was required to assess BKA’s fitness to continue as an officer. As discussed, the Tribunal found that there is no justification for making sexualised comments about a child under any circumstances and that it raises concerns whether BKA is a risk to children.78 The learned Member accepted BKA had sought to address his use of prescription medication and personal stressors with the assistance of mental health social worker, Mr Kent Smith; 79 BKAs assertions that he was ‘deeply ashamed of’ his choices;80 and that the conduct was out of character.81 The learned Member says that the misconduct is serious, ‘including the sexualised comments made about a child’ when ‘taking prescription medication and experiencing personal stressors.’82 Accepting that BKA is committed to rehabilitation and his duties as a police officer, the Tribunal finds that probation of 3 years is necessary to continue to monitor his ongoing rehabilitation and continued fitness to serve as an officer.83 [59] However, despite saying there is no justification for making sexualised comments about a child; identifying that the making of the comments raised concerns whether 78 RFD [68]. 79 RFD [72-74]. 80 RFD [74]. 81 RFD [76]. 82 RFD [80] 83 RFD [83 and 95]. -- 15 of 19 -- 16 BKA is a risk to children; and, it appears, finding there was a need to address prescription medication use and personal stressors, I observe that the Tribunal did not consider whether BKA’s sexual ideations or sexualised comments concerning the child were causally related to either his mental health conditions or prescription medication use. In this regard, I observe that the evidence before the Tribunal from Mr Kent Smith was to the effect that BKA’s referral from his General Practitioner to Mr Smith states that BKA was diagnosed with ‘Anxiety/Depression.’ 84 [60] If the Tribunal was satisfied on the evidence that the sexual ideations about the child were a symptom of BKA’s mental health conditions or intoxication from misuse of prescription medication, although that would not excuse the conduct, it might provide an explanation for it. If causally related, I observe it would then be necessary to consider how it was relevant to BKA’s current fitness to be an officer, given that his mental health conditions have not yet resolved. I observe that in Legal Services Commissioner v Yarwood, 85 the Tribunal said that a psychiatric disorder which causes misconduct may be relevant in considering the person’s fitness to continue in their profession if the conduct would not have occurred if not for the disorder; the conduct was an aberration, and uncharacteristic of the person’s conduct; and the cause has since been removed.86 There, the Tribunal found the misconduct was not caused by the mental health issues, and the Tribunal decided that the practitioner’s name was to be removed from the roll of legal practitioners. [61] On the other hand, if on the evidence there was no relationship between the sexualised comments about the child and either BKAs mental health conditions or prescription medication use or misuse, in my view, it would then be necessary to consider how that fact impacted BKA’s fitness to be or continue as an officer. [62] I make the further observation that in response to my questions about expert evidence before the Tribunal explaining any link between the sexualised comments and either BKAs mental health conditions or prescription medication misuse, Counsel for BKA referred me to a report of Mr Kent Smith.87 Mr Smith records that BKA has no recollection of making the statements and became aware of them when he heard the recording. Mr Smith has said BKA consistently demonstrated horror and shame at the thought of making the statements. Mr Smith reports that BKA made the statements in the context of increasing the levels of his prescription anti-depressant/anxiety medication because he perceived he was not coping, without consulting anyone, including his general practitioner. Counsel submits that the comments are rambling and at their highest could be put down to BKA being highly intoxicated as a consequence of the medication.88 [63] While noting that BKA has expressed horror and shame, which might suggest insight, the Tribunal did not consider whether on the evidence the sexualised comments about 84 Appeal Book filed 15 July 2021, p 118. 85 [2015] QCAT 208. 86 Ibid [79]. 87 Appeal Book 117-120. 88 Transcript of appeal hearing on 3 May 2022, I-21 and I-22. -- 16 of 19 -- 17 the child are a symptom of BKA’s mental health conditions or prescription medication use and if so, how treatment has or is expected to overcome such ideations.89 [64] The Tribunal discussed many relevant matters in reaching its decision. However, in my view it did not address the relevant issues arising out of the Tribunal’s concern about the sexualised comments and any risk to children. These matters are directly relevant considerations in determining BKA’s current fitness to continue to serve as an officer. If it was necessary to do so, I would conclude that the Tribunal failed to take into account those relevant considerations. Although the discretion to impose sanction is broad, each case must turn on the relevant facts and the discipline imposed must ultimately meet the purposes of discipline in the relevant circumstances. [65] As to how sanction might be affected by these matters, I observe that at the review hearing before the Tribunal, it was submitted for BKA that in determining disciplinary sanctions, the tribunal had specifically applied the criminal sentencing principles with respect to mental health conditions explained in R v Yarwood.90 BKA relied, in particular, upon Austin v Deputy Commissioner Martin91 and LCK v Health Ombudsman.92 [66] I recently considered similar submissions in Crime v Corruption Commission v Assistant Commissioner McCarthy & PBS93 and said as follows: [ 71] I do not accept PSB’s broad submission to the effect that the Tribunal applies well-established criminal sentencing principles in disciplinary proceedings. [72] In Austin v Deputy Commissioner Peter Martin, a Member of the Tribunal did import criminal sentencing principles into a police disciplinary review decision, on the basis, that they had been held to apply in legal practitioner disciplinary proceedings by the Victorian Court of Appeal. However, subsequently in Price v Deputy Commissioner Gee, the Tribunal observed that arguments were made about ‘notions,’ including moral culpability, that are more readily applied in a criminal justice context, rather than in the disciplinary setting where protection of the public and the reputation of the QPS is more apposite. [73] Later in time again, in LCK,94 the Tribunal observed that the criminal sentencing approach has been applied ‘to some extent’ in disciplinary proceedings, however it applied the approach taken by the Tribunal in the disciplinary decisions in LSC v Yarwood and LSC v XBN. As observed in LSC v XBN, a mental health condition may provide an explanation for misconduct, even though it is does not excuse it, and it may be taken into account in mitigation in determining sanction. In OP v Gollschewski (No2), the Tribunal confirmed that a psychiatric condition can be a relevant mitigating circumstance in determining sanction when judgement and self-control is seriously impaired by the condition. Further, it considered the officer’s psychiatric condition reduced ‘the significance of general deterrence in particular’ and specific deterrence in the circumstances was not expected to be ‘of importance.’ 89 For completeness, I note that the Appeal Book filed 15 December 2021 contains an Affidavit of Ashley Phelan, Psychologist at pp 310-321. Mr Phelan reviewed the Body Worn Video Footage and expresses some opinions but has not examined and does not know BKA. 90 [2011] QCA 367. 91 [2018] QCAT 120. 92 [202] QCAT 316. 93 [2022] QCATA 114. 94 LCK v Health Ombudsman [2020] QCAT 316. -- 17 of 19 -- 18 Footnotes omitted. [67] Finally, while noting the Tribunal’s references to BKA’s prescription medication use, I observe that in my view it is not sufficiently clear that the Tribunal properly had in mind all of the particulars of Matter 2 in making its decision about the sanction to be imposed on BKA, noting that as above, particulars 5 to 11 were absent from the Tribunal’s statement setting out the misconduct to be disciplined. [68] The CCC’s argument is essentially that the Tribunal’s reasoning and characterisation of the misconduct, as well as the protective function of the police disciplinary regime should have led it to conclude dismissal was the correct and preferable decision. For the reasons explained, if it was necessary to do so, I would accept that the exercise of the Tribunal’s discretion in imposing sanction miscarried and allow the appeal (and as discussed earlier, if necessary, I would grant leave to appeal) because material error is demonstrated in the exercise of the Tribunal’s discretion. [69] Finally, for completeness and acknowledging that the matters referred to in the following paragraphs do not appear to have been material to the outcome, I observe that, the Tribunal’s reasons for decision recount comments from the Assistant Commissioner’s reasons for decision about the significant role of QPS in the child protection system and the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act’) to manage risk. Although it does not appear that the Tribunal considered the WWC Act relevant, or relied upon it, I observe that it is not applicable to police officers, and so it is irrelevant. [70] Further, I observe that at paragraph [66] of its reasons for decision, the Tribunal says BKA’s QPRIME access had the potential to compromise two separate criminal investigations. However, he was charged with accessing QPRIME only. This comment about potentially compromising investigations appears to go beyond the disciplinary charge, although it does not appear it led to error in determining sanction. Disposition of the appeal [71] I may set aside the Tribunal’s decision and substitute my own decision or remit the matter to the Tribunal. [72] In my view, the appropriate course is to remit the proceeding to the Tribunal for reconsideration according to law. The Tribunal imposed a sanction it was not able to impose and that affected not only the outcome but also some of the Tribunal’s underlying reasoning. Further, BKA should have the opportunity, should he wish, to seek leave to provide additional evidence having regard to the effluxion of time since the Tribunal’s decision and BKA’s ongoing treatment in the meantime. [73] I make orders accordingly. Non-publication order [74] A non-publication order was made in the review proceeding in the following terms: 1. Until further order, pursuant to s66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of: a. the contents of a document or thing filed in or produced to the Tribunal; b. evidence given before the Tribunal; and c. any order made or reasons given by the Tribunal, -- 18 of 19 -- 19 is prohibited to that extent that it could identify or lead to the identification of the second respondent or any third party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings. [75] On my own initiative, in view of BKA’s mental health issues and because Matter 2 involves comments regarding a child, I make an order until further order in similar terms in the appeal proceeding. Any party may provide written submissions by 31 August 2022 as to whether an order should be made on a final basis and if so, the terms of the order. If no submissions are received, I intend to make a final non- publication order in the terms of the interim order. -- 19 of 19 --