Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106 PARTIES: CRIME AND CORRUPTION COMMISSION (applicants) v ASSISTANT COMMISSIONER ALAN MCCARTHY PSB (respondents) APPLICATION NO/S: APL370-20 ORIGINATING APPLICATION NO/S: OCR246-18; OCR321-18 MATTER TYPE: Appeals DELIVERED ON: 8 July 2022 HEARING DATE: 15 November 2021 HEARD AT: Brisbane DECISION OF: Senior Member Howard ORDERS: 1. The appeal is allowed. 2. The decision of the Tribunal is set aside; 3. Matter 4 is substantiated; 4. (i) PSB is dismissed. (ii) The dismissal is suspended for the period of two years effective from 10 November 2020, on the condition that PSB does not commit any further act of misconduct similar to Matters 1, 2 or 3 during the period of suspension. 5. (i) Unless otherwise ordered, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and any information that may tend to identify PSB and any third parties other than the original decision-maker and investigating officers for the disciplinary matters in the proceeding APL 370-20 is prohibited; (ii) Any party may give to the Appeal Tribunal and each other party written submissions about whether a final non-publication order should be made or its terms within 21 days of this decision; -- 1 of 25 -- 2 (iii) Unless otherwise ordered, the Appeal Tribunal will make a final determination about whether to make a non-publication order, and if so the terms of any order, on the papers and without an oral hearing, not before 28 days from the date of this decision. CATCHWORDS: APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT – IN GENERAL - POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND - appeal of disciplinary order of demotion - whether the Tribunal erred in its application of Aldrich v Ross – whether the sanction imposed achieved the purposes of discipline – whether the Tribunal erred in mitigating the sanction based on a mental health diagnosis of PTSD – where the Appeal Tribunal gave the decision that ought have been given by the Tribunal below - where Appeal Tribunal imposed global sanction for all substantiated disciplinary matters Crime and Corruption Act 2001 (Qld) (‘CCC Act’) s 219A, s 219H Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1), s 20(2) Albrecht v Ainsworth & Ors [2015] QCA 220 Aldrich v Ross [2000] 2 Qd R 235 Allesch v Maunz (2000) 203 CLR 172 Austin v Deputy Commissioner Peter Martin [2018] QCAT 120 Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 Briginshaw v Briginshaw 1938 60 CLR 336 Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169 CMC v Deputy Commissioner Barnett [2013] QCAT 477 Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384 Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 Crime and Corruption Commission v McCarthy & Anor Crime and Misconduct Commission v Deputy Commissioner and Chapman [2010] QCAT 564 DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162 Ericson v QBSA [2013] QCA 391 Flegg v Crime and Misconduct Commission [2014] QCA 42 Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118 Gunter v Assistant Commissioner Wilkins [2021] QCA 274 -- 2 of 25 -- 3 Harrison v Meehan [2017] QCA 315 House v R (1936) 55 CLR 499 JXR v Deputy Commissioner Gollschewski [2018] QCATA 55 Lacey v AG (Qld) [2011] HCA 10, [57] LCK v Health Ombudsman [2020] QCAT 316 Lee v Crime and Corruption Commission & Anor [2014] QCATA 236 Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201 Legal Services Commissioner (LSC) v Yarwood [2015] QCAT 208 Lovell v Lovell (1950) 81 CLR 513 LSC v XBN [2016] QCAT 471 Maksymiuk v Savage [2015] QCA 177 McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 Minister for Immigration and Border Protection v SZVFS & Ors [2018] HCA 30 Officer GJB v Deputy Commissioner Gollschewski & Anor [2016] QCAT 348 OP v Gollschewski (No 2) [2021] QCATA 45 Police Service Board v Morris (1985) 156 CLR 397 Price v Deputy Commissioner Gee [2019] QCAT 179 PSB v McCarthy [2022] QCAT [26] R v Yarwood [2011] QCA 367 APPEARANCES & REPRESENTATION: Applicant: Mr BJ Caughlin, in-house legal officer, Crime and Corruption Commission First Respondent: Second Respondent: Ms EF Kennedy, in-house legal officer, Queensland Police Service Legal Unit Mr C R Gnech, Solicitor, Gnech & Associates REASONS FOR DECISION [1] PSB is a Sergeant of police. He faced four disciplinary matters of alleged misconduct. Three were in respect of inappropriate sexual conduct whilst on duty -- one charge in relation to each of three female police officers (Matters 1, 2 and 3). Matter 2 involved conduct towards BCS. The fourth matter alleged a failure to obey a direction not to contact any witnesses in relation to a disciplinary interview to be conducted regarding sexualised and inappropriate behaviour on duty (Matter 4). [2] Assistant Commissioner McCarthy (the Assistant Commissioner) decided that the first three charges of misconduct were substantiated and imposed a sanction reducing PSB in rank from Sergeant 3.6 to Senior Constable 2.10 for 12 months from 28 August 2018. He found Matter 4 was not substantiated. -- 3 of 25 -- 4 [3] Applications to review the Assistant Commissioner’s decision were brought in the Tribunal by PSB and the Crime and Corruption Commission (CCC). In deciding the review applications, the Tribunal confirmed the decisions of the Assistant Commissioner. [4] The CCC has appealed the decision of the Tribunal. For the reasons later explained, the appeal should succeed. The grounds of appeal [5] The CCC relies upon four grounds of appeal. In each case, the CCC contends that the ground of appeal reveals an error of law. [6] The first ground of appeal relates to Matter 4. The CCC contends that the Tribunal erred in reasoning that PSB’s failure to understand the conduct was inappropriate meant that he considered his sexual interaction with BCS was outside the scope of, and not covered by, the investigation. This is said to be an error of law in determining whether the facts as found substantiated the disciplinary allegations in Matter 4 as properly construed. [7] Three grounds of appeal are advanced in respect of the sanction decision, as follows: (i) The Tribunal erred in its application of Aldrich v Ross1; (ii) The sanction imposed did not achieve the purposes of discipline; and (iii) The Tribunal erred in mitigating the sanction based on PSB’s diagnosed PTSD. [8] 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.2 It is not enough that the appeal body 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 as identified in House v R.3 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.4 [9] The CCC submits that if any error is found to be an error of mixed law and fact or fact, then leave should be granted on the basis that there is a reasonable argument that there is error and an appeal is necessary to correct a substantial injustice. If leave to appeal is required and granted, PSB seeks the opportunity to make application for leave to rely upon fresh evidence and to file an updated report from his psychiatrist. [10] A letter authored by DC Tracey Linford dated 19 April 2018 was tendered by the Assistant Commissioner in the appeal hearing. The letter revoked PBS’ suspension from the police service that had taken effect on 5 September 2017. A copy of the document should properly have been included in the bundle of documents filed by the 1 [2000] QCA 501 (‘Aldrich v Ross’). 2 Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627 (Kitto J). 3 (1936) 55 CLR 499. 4 Lovell v Lovell (1950) 81 CLR 513; Minister for Immigration and Citizenship v Li [2013] HVA 18; Flegg v CMC & Anor [2014] QCA 42, esp [13]- [17]. -- 4 of 25 -- 5 Assistant Commissioner pursuant to s 21(2) in the review proceedings: it is a document the Assistant Commissioner had that may be relevant in the review. Accordingly, in my view, leave is not required to rely upon it and it was received as an exhibit. Procedure on appeal [11] If an appeal is allowed on a question or questions of law alone, the appeal must be decided pursuant to s146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Leave to appeal is not required. It is an appeal in the strict sense.5 The appeal tribunal in such a case must give the decision that should have been given in the first instance based on the evidence that was before the tribunal and on the law as it then stood.6 [12] Otherwise, leave to appeal is required. If an appeal is decided on a question or questions of mixed law and fact, or a question of fact, the appeal must proceed pursuant to s 147 of the QCAT Act, by way of rehearing. The Appeal Tribunal may give leave for additional evidence to be relied upon rehearing on appeal. The appeal concerning Matter 4 [13] Matter 4 was in the following terms: That on 4 September 2017 your conduct was improper in that you disobeyed a direction of a Senior Officer. Further and better particulars: In relation to matter four: Investigations have identified Detective Senior Sergeant Sean Dugger informed you that he was intending to interview you regarding sexualised and inappropriate on duty behaviours and provided you with a direction not to contact any witnesses you believed would or could be a witness in the matter. It is alleged you disobeyed this direction, namely: 1. At 8:28am on 4 September 2017, Detective Senior Sergeant Sean Dugger spoke to you in the conference room on the 7th floor of Police Headquarters; 2. Detective Senior Sergeant Sean Dugger outlines his intention to interview you later that day regarding sexualised and inappropriate on duty behaviour; 3. At about 10am on 4 September 2016, you contacted BCS on her mobile phone inquiring about photographs that she took [redacted], you did not discuss the investigation; 5 Ericson v QBSA [2013] QCA 391, [12]-[13]; Albrecht v Ainsworth & Ors [2015] QCA 220, [94]; Harrison v Meehan [2017] QCA 315, [18]-[19]. 6 Allesch v Maunz (2000) 203 CLR 172, [22]; Lacey v AG (Qld) [2011] HCA 10, [57]; Minister for Immigration and Border Protection v SZVFS & Ors [2018] HCA 30, [31] per Gageler J; Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118, [173]; Harrison v Meehan [2017] QCA 315, [18]-[19]. -- 5 of 25 -- 6 4. You acknowledged in your discipline interview you engage in sexual conduct within the work unit with BCS, making her a witness in this matter. [14] The Tribunal found that it was not in dispute that PSB was informed that he was to be interviewed regarding ‘sexualised and inappropriate behaviour on duty’ and he was directed ‘not to contact any witnesses you believe could or would be a witness in the matter.’7 Further, the Tribunal found it was not disputed that shortly afterwards PSB contacted BCS by telephone regarding a work-related matter that did not relate to the investigation. [15] When interviewed, PSB acknowledged engaging in sexual conduct with BCS in the workplace. However, he said he didn’t realise BCS was involved in the investigation. The learned Member found that PSB’s contention was supported ‘to an extent’ by his lack of insight into his behaviour; 8 and his psychiatrist, Dr Dodds’ evidence that at the time PSB saw the behaviour as consensual and private.9 While accepting the direction was not to have contact, the learned Member considered the ‘content’ relevant.10 The ‘contact’ consisted of a discussion between PSB and BCS about an unrelated matter, (rather than the investigation).11 The Tribunal found Matter 4 unsubstantiated. 12 [16] The CCC contends that the Tribunal erred in its reasoning in finding Matter 4 was unsubstantiated. In particular, the CCC submits that the Tribunal erred in reasoning that PSB’s failure to understand the conduct was inappropriate meant that he considered his sexual interaction with BCS was outside the scope of, and not covered by, the investigation.13 [17] The CCC says that the Tribunal’s error was in considering PSB’s mental health condition relevant to whether the disciplinary charge was substantiated and in considering it relevant that the content of the conversation with BCS was about a work-related matter rather than the investigation. Further, it submits that the Tribunal’s later finding made in determining sanction for the substantiated matters of misconduct, to the effect that the learned Member did not accept that PSB could think it appropriate to behave as he did while on duty and in his workplace,14 contradicts the basis upon which Matter 4 was found not to be substantiated. [18] PSB says that the direction was vague and imprecise and the misconduct should not be substantiated on the basis of inexact proofs in accordance with Briginshaw v Briginshaw.15 [19] I accept that the Tribunal below did consider PSB’s lack of insight into his sexualised conduct relevant to whether Matter 4 was substantiated.16 Thereby, in effect, the 7 Crime and Corruption Commission v McCarthy & Anor; PSB v McCarthy [2022] QCAT [26] (‘RFD’). 8 RFD [30], [33]. 9 RFD [32]. 10 RFD [34]. 11 RFD [34]. 12 RFD [35]. 13 RFD [33]. 14 RFD [73]. 15 1938 60 CLR 336. 16 RFD [29-33]. -- 6 of 25 -- 7 learned Member concluded that whether or not the conduct was misconduct was to be determined having regard to PSB’s mental health condition. [20] Further, the learned Member said he considered ‘the content has some relevance....’17 In particular, he considered it was relevant that the matters discussed were work matters and unrelated to the investigation. The learned Member found that if PSB had attempted to engage BCS directly or indirectly about the investigation, that ‘would inevitably lead to a conclusion that he regarded BCS as a potential witness.’18 [21] The direction made was as set out by the Tribunal and discussed earlier. As the Tribunal found, shortly after being given the direction, PSB contacted BCS. PSB acknowledged he engaged in sexual conduct with BCS in the workplace and on duty (and that conduct was later the subject of Matter 2). [22] BCS was a person whom PSB had engaged in sexual behaviour while on duty and was therefore not to contact pursuant to the direction given. Neither the content of the discussion with BCS, nor PSB’s lack of insight into his conduct was or could be relevant to whether the allegations in Matter 4 were established. [23] In my view, it was not relevant that the direction could have been more specific and could have named the persons who were not to be contacted. In context, the witnesses covered by the direction, whom PSB was directed not to contact, were any persons with whom PSB had engaged in sexual behaviour while on duty. BCS was one such person. There is no material lack of clarity. [24] In my view, the Tribunal’s error is analogous to whether facts as found fall within a statute properly construed.19 Here, the error was in determining whether the facts as found established the particulars specified in Matter 4, as properly construed. The relevant facts were established. Whereas a mental health condition may be relevant as a mitigating factor in determining the appropriate sanction to be imposed,20 it is not relevant in determining whether alleged misconduct is substantiated. 21 [25] The next question is then whether the conduct in disobeying a direction of a Senior Officer was misconduct. This was not considered by the Tribunal given its conclusions. That said, no submission is advanced that such conduct could be viewed as meeting the standard of conduct the community reasonably expects of a police officer. I accept that it is misconduct: it is conduct that does not meet the standard the community reasonably expects of a police officer. [26] In my view, this is the decision that the Tribunal ought to have reached on the evidence before it and according to law. [27] As the CCC submits, having regard to the overall circumstances, sanction for Matter 4 should properly be subsumed in the global sanction for the more serious misconduct established in Matters 1, 2 and 3. The appeal on sanction 17 RFD [34]. 18 RFD [34]. 19 Maksymiuk v Savage [2015] QCA 177, [7] (North J). 20 DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162, [40]; JXR v Deputy Commissioner Gollschewski [2018] QCATA 55, [106]. 21 Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169. -- 7 of 25 -- 8 [28] I consider each of the three grounds of appeal separately. However, there is some inevitable overlap in discussing them. [29] By way of background, I note that between 5 September 2017 and 19 April 2018, PSB was suspended from duty. For 49 days of that period, he was suspended without remuneration, but for the rest he was remunerated. The Tribunal’s reasons for its decision about sanction [30] Before turning to consider the grounds of appeal, it is useful to summarise key aspects of the Tribunal’s decision about sanction. [31] The learned Member found the misconduct involved an ongoing course of conduct over some two years with three junior female officers, invariably initiated and often pre-planned by PSB.22 It considered, but rejected, it says because of the protective purpose of disciplinary proceedings,23 PSB’s argument that the sanction imposed should be discounted as a consequence of the ‘unreasonable and unexplained delays’24 [32] The Tribunal found that PSB’s mental health condition was a major mitigating factor, which significantly reduced the sanction that would have been imposed ‘both in the decision under review and this decision.’25 The learned Member considered that the stress of the proceedings was taken into account in this way but considered it did not represent a separate quantifiable additional mitigating factor.26 [33] In discussing the CCC’s submissions that dismissal, or alternatively, suspended dismissal with supervised conditions is the only appropriate remedy,27 the Tribunal referred to the additional evidence received by the Tribunal in the review, namely a further written report and oral evidence given in the review proceeding by Dr Dodds, psychiatrist, (which supplemented his earlier written report prepared after one single consultation that had been before the Assistant Commissioner).28 The learned Member discussed the overall evidence of Dr Dodds,29 referring to submissions from the CCC as to whether the evidence was sufficient to allow the Tribunal to conclude that PTSD was the sole or dominant causal factor for the behaviour.30 (Although it is not apparent from the Tribunal’s reasons, the CCC’s submissions referred to were written submissions provided prior to the hearing.) [34] In particular, the learned Member discussed the evidence of Dr Dodds to the effect that PSB developed PTSD in around 2000, when his marriage was breaking down and he was a first responder to an incident in which several other officers were shot by an assailant.31 The Tribunal says the additional evidence was that PSB’s condition persisted without effective treatment and was exacerbated by further trauma at work and an unhappy second marriage which ended in 2015.32 22 RFD [40]. 23 RFD [45]. 24 RFD [42]. 25 RFD [46]. 26 Ibid. 27 RFD [49-50]. 28 Appeal Book Vol 1 p 83-84; Transcript 8 April 2019, I-13 to I-23. 29 RFD [48], [50]-[65]. 30 RFD [57]. 31 RFD [53]. 32 RFD [54]. -- 8 of 25 -- 9 [35] The ending of that marriage was considered by Dr Dodds to bring about a ‘drastic change in mental state, best explained in terms of disinhibition as a result of the effects of’ PTSD.33 He described it as a ‘perfect storm’.34 The Tribunal found that Dr Dodds’ answers to questions under cross-examination of assistance.35 The Tribunal concluded that Dr Dodds ‘additional evidence’ overcomes the shortcomings raised by the CCC based on his initial report,36 and that recurrence of the conduct was unlikely.37 [36] The Tribunal recites the CCC’s submission that the sanction must make it clear that such conduct is unacceptable in QPS, undermines confidence and the morale of other officers. [37] It refers to PSB’s arguments to the effect that his moral culpability was reduced and specific and general deterrence were not relevant in the circumstances of PSB’s mental illness and service history.38 It accepted that his culpability was reduced, but not eliminated. The learned Member said he did not accept that the public and fellow officers would demand dismissal in the circumstances of PSB’s PTSD and its effects.39 Although the Tribunal accepted Dr Dodds’ evidence that PSB did not view ‘his sexualised behaviour as inappropriate,’ and ‘was oblivious to its effects on others’, it did not accept that PSB considered it acceptable to behave as he did ‘while on duty and in his workplace’.40 Further, it did not accept his behaviour was undetected over the period of the misconduct, ‘without some degree of premeditation, planning and concealment.’41 [38] The Tribunal then discusses the purpose of the review and the Tribunal’s function on review. In paragraph [78] in referring to Aldrich v Ross, the learned Member states that it requires due consideration be given to the original decision-maker’s views unless there is some reason to depart from it and that this is particularly so when the parties are unable to provide any comparable decisons.42 It then accepts, without further explanation, the Deputy Commissioner’s submission to the effect that the sanction imposed by the original decision-maker reflected the circumstances of the misconduct, adding that in the learned Member’s view, it also reflected ‘the objective of the disciplinary process.’43 It then goes on to find that demotion causes humiliation and financial loss, but that is not disproportionate to the to the misconduct in the circumstances.44 [39] The Tribunal then rejects suspension of the sanction. Here it refers to the possibility of suspension of the demotion imposed by the Deputy Commissioner, as an option. 45 It also rejects the imposition of conditions proposed by PSB’s lawyers on the basis they are not supported by the evidence, noting Dr Dodds’ evidence that only through 33 RFD [55]. 34 RFD [55]; Transcript 8 April 2019, line 8-9; Appeal Book Report of Dr Dodds dated 19 June 2018 at 45. 35 RFD [56]-[57]. 36 RFD [64]. 37 RFD [65]. 38 RFD [67]-[69], [70]-[71]. 39 RFD [72]. 40 RFD [73]. 41 RFD [74]. 42 RFD [78]. 43 RFD [80]. 44 RFD [81]. 45 RFD [83-84]. -- 9 of 25 -- 10 specific trauma focused treatment would PSB accept full responsibility for his actions.46 Ground 1: Did the Tribunal correctly apply Aldrich v Ross [40] The Tribunal said at paragraphs [77-80] of its reasons for decision as follows: [77] Were it not for PSB’s mental condition and ongoing treatment of the condition the original decision-maker would have demoted him outright. [78] Aldrich v Ross requires that having regard to the experience of the original decision-maker, due consideration should be given to his views unless there is some good reason to depart. That is particularly so in this case when none of the parties is able to provide any comparable decisions.47 [79] Neither respondent takes issue with the original decision-maker’s findings on characterisation of the misconduct although the CCC obviously takes issue with the sanction imposed. [80] I agree with Mr McLeod’s submission that the sanction is ‘plainly a reflection of the circumstances surrounding the misconduct’ and to that I would add the objective of the disciplinary process. [41] The CCC says that there is nothing in Aldrich v Ross 48 to support the Tribunal’s statement of principle that particular deference should be accorded the Assistant Commissioner’s views when no comparable decisions are available. It submits that the Tribunal’s statement is a clear error. The CCC argues that as was said in Aldrich v Ross,49 the Tribunal’s role in all cases is to bring an independent, public perspective to bear in disciplinary decisions. [42] Further, it submits that, as the Tribunal has previously found, the Tribunal must make its own decision about the appropriate sanction to be imposed and is entitled to form its own conclusions about what is required for public confidence. 50 It contends that in this proceeding, a central consideration is ‘what is necessary to maintain public confidence in the police service.’51 Accordingly, it argues the Tribunal erred in according some ‘elevated deference’ to the original decision in the circumstances that there were no comparable decisions. [43] PSB says that read in context, the Tribunal did not misapply Aldrich v Ross, rather that it made an observation as to how to proceed in the absence of comparable decisions. In particular, he argues that the Tribunal properly informed itself of its duty to make the correct and preferable decision52 having regard to the objectives of discipline.53 What does Aldrich v Ross say? [44] It was for the Tribunal below to form its own conclusions about what was required to meet the purposes of discipline, and to bring the public perspective to bear in doing 46 RFD [85]. 47 Emphasis added. 48 Aldrich v Ross 49 Ibid [43]. 50 CMC v Deputy Commissioner Barnett [2013] QCAT 477, [18]. 51 Submissions of CCC filed 16 March 2021, [22]- [23]. 52 RFD [75]. 53 RFD [39]. -- 10 of 25 -- 11 so. If the tribunal has the same view of the facts and inferences to be drawn, it may be appropriate in making up its own mind, to give considerable weight to the views of the decision-maker. However, in my view, Aldrich v Ross is not authority for the proposition that some greater deference should be accorded to the original decision- maker’s views when there are no comparable decisions. [45] In Aldrich v Ross, the Court of Appeal held in discussing the former Misconduct Tribunal: [41] In the end, although there are countervailing factors, I consider that the Misconduct Tribunal is required to make its own decision on the available evidence rather than merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense against the exercise of a discretion. [43] Some similarity is noticeable between the system of police discipline and the traditional disciplinary procedures in the armed forces. There are many merits in Orderly Room discipline but it has its limitations. Even in the armed forces, if a person is to be cashiered he or she is entitled to the benefit of a full court martial. The provision of a system which permits one external public review of the disciplinary decision is not only the protection against a wrong or unacceptable decision, it is also the provision of a source which can be expected to bring a perspective to bear from the public point of view. That is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decision-maker who might be thought to have particular expertise in the managerial requirements of the police force. To do so would be consistent with the observations of Gleeson C.J., Gummow, Kirby and Hayne JJ. in Corporation of the City of Enfield v. Development Assessment Commission[62] at least so far as non-jurisdictional questions are concerned, and particularly when the evidence upon which the appeal tribunals act is essentially the same as the evidence below.. [45] ….. If the Misconduct Tribunal has the same view of the facts and inferences as the original tribunal, it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the Misconduct Tribunal. [46] In summary, Thomas J as he then was (the other judges of the Court agreeing with his reasons for decision), after a comprehensive consideration of the possibilities, concluded that the statutorily prescribed ‘appeal by way of rehearing’ to be conducted by then Misconduct Tribunal, was an external public review in which the tribunal was required to make its own decision on the available evidence, and can be expected to bring the public perspective to bear.54 In doing so, it may be appropriate to pay considerable respect to the views of the decision-maker. [47] Hon Member JB Thomas, as he later then was, held in Compton v Deputy Commissioner Ian Stewart55 (‘Compton’) that the role of the QCAT upon review is as explained in Aldrich v Ross. He found there was no inconsistency between the enabling Act and the QCAT Act. Indeed, he considered s 20 Of the QCAT Act 54 Aldrich v Ross [41], [43], [45]. 55 [2010] QCAT 384, [6], [28]-[31] (‘Compton’). -- 11 of 25 -- 12 ‘fortified the interpretation of the nature, function and powers of the reviewing tribunal as expressed in Aldrich v Ross.’56 In respect of the issue of sanction, he said: [30] The remarks in Aldrich as to the approach to be taken when the issue is the penalty to be imposed upon a review are of assistance. Those remarks appear in paragraph 45 of the judgment in Aldrich, the last sentence of which reads: “If the misconduct tribunal has the same view of the facts and inferences as the original tribunal, it would again be appropriate to give considerable respect to the views of the original tribunal as to the appropriate disciplinary sanction, but the ultimate determination must be that of the misconduct tribunal.” [31] In short, the question of appropriate penalty is in the end one for this tribunal to determine. In doing so it may be appropriate to pay considerable respect to the view of the original decision maker, but it must be this tribunal’s decision. [48] I pause here to observe that, in its 2021 decision in Gunter v Assistant Commissioner Wilkins57 the Court of Appeal made obiter comments, although it appears without the benefit of submissions, that suggest the procedure upon review in QCAT may perhaps be more constrained than the tribunal has understood in accordance with Aldrich v Ross and Compton. 58 Sofranoff P, as he then was, suggests that in police disciplinary proceedings, the rehearing upon review is not a fresh hearing on the merits.59 Rather, by the reference to a ‘rehearing’ in s 219H of the Crime and Corruption Act 2001 (Qld) (‘CCC Act’), he considered that the reviewing tribunal is, for example, ‘constrained in its freedom to interfere with findings of fact which were based upon an assessment of the credit of the witness.’60 Further, in contrasting the difference between these reviews and ‘the standard that applies generally to reviews of executive action under the QCAT Act’,61 (in the latter case, a fresh hearing on the merits) he says that one reason for the difference is the nature of the police service and the maintenance of public confidence in the police service ‘of the integrity of its specialist internal disciplinary authority over its members.’62 [49] With respect, as the Court alluded to in Aldrich v Ross63, and as subsequently observed by the Tribunal,64 the process throughout police disciplinary matters is unusually limited. Following an internal investigation, the disciplinary grounds are formulated based on the investigative material. Although a hearing may occur, as it did here, there is no cross-examination of the various witnesses and the subject officer. Oral evidence that might be the subject of findings of credit is not given before the original decision- maker in police disciplinary matters. The review by way of rehearing at QCAT is generally then based on the same evidence, unless leave is given for additional 56 Ibid [29]. 57 [2021] QCA 274, [2-3] (‘Gunter’). 58 Ibid [3]. 59 Crime and Corruption Act 2001 (Qld) (‘CCC Act’) s 219H. 60 Gunter [2]. 61 Ibid. 62 Ibid, citing Police Service Board v Morris (1985) 156 CLR 397, [412]. 63 Aldrich v Ross at 257, [43]. 64 Lee v Crime and Corruption Commission & Anor [2014] QCATA 236, [75]; Crime and Misconduct Commission v Deputy Commissioner and Chapman [2010] QCAT 564 [16]-[19]; Officer GJB v Deputy Commissioner Gollschewski & Anor [2016] QCAT 348; Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510, [90]- [91]. -- 12 of 25 -- 13 evidence by the tribunal, in which case, cross-examination of (some) witnesses may occur. For example, in the review proceeding under appeal here, Dr Dodds was cross- examined at the Tribunal hearing. No other evidence was given orally. Accordingly, it appears there may have been some misunderstanding about the police disciplinary process in Gunter. Therefore, the original decision-maker is no better placed to make findings of credit than the Tribunal, having regard to the hearing procedures undertaken in each case. [50] Further, Parliament having concluded that external review was appropriate, is unlikely to have intended that it be ineffectual, as was explained in Aldrich v Ross.65 As Hon JB Thomas AM QC said in Lee v Crime and Corruption Commission & Anor, the review by QCAT ‘is the only public review capable of protecting the community (and police officers) from wrong or unacceptable decisions, and the Tribunal is expected to bring a perspective to bear from the public point of view.’66 [51] As referred to earlier, in any event, the observations made in Gunter are not part of the ratio of the Court of Appeal’s decision and are not binding. In any event, given that this is an appeal in the strict sense, even if they were, they would not apply here, having been made after the decision under appeal,. [52] In my view, the position is as explained in Aldrich v Ross, as adopted in QCAT in Compton. The Tribunal must in all cases perform its statutory function to hear and decide the rehearing on review by way of a fresh hearing on the merits67 and make the correct and preferable decision,68 bringing the public perspective to bear in doing so. In that process, it may be appropriate to accord significant weight to the views of the original decision-maker where the Tribunal forms the same view of the facts and inferences to be drawn. [53] Having regard to the nature of the review, and function and powers of the tribunal, it is not the case that an absence of comparable decisions somehow elevates the status of the original decision-maker’s views. The Tribunal was called upon to make its own independent decision, bringing the public perspective to bear in the process. In doing so, it was open for the Tribunal to pay considerable respect to the view of the original decision-maker, as long as the decision was its own. [54] If the Tribunal’s impugned statement is intended to be a statement of law, it is in error. On a fair reading, I would accept that it is made as a statement of principle and that the Tribunal’s exercise of discretion was infected by error of law. Did the Tribunal’s err in making its decision? [55] In case I am wrong, I make the following observations. [56] As discussed, PSB submits that in making the impugned statement that the Tribunal did no more than make an observation, as opposed to expressing a statement of principle, about the process which the learned Member adopted. Even if that’s correct, in my view, in proceeding in accordance with the statement, the Tribunal erred. [57] On a fair reading, it is clear from the reasons for decision that the Tribunal did attach some greater weight to the original decision-maker’s views about sanction in the 65 Aldrich v Ross [40]-[43]. 66 [2014] QCATA 236, [76]. 67 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2) (‘QCAT Act’). 68 QCAT Act s 20(1). -- 13 of 25 -- 14 absence of comparable decisions. In agreeing with the Assistant Commissioner that the demotion is plainly a reflection of the circumstances surrounding the misconduct at paragraph [80], it appears to reject the CCCs submissions that dismissal, or alternatively, suspended dismissal was the appropriate sanction, but without explaining the basis of that conclusion having regard to relevant factors. [58] Having regard to the passages set out earlier in these reasons from Aldrich v Ross, and the QCAT decisions adopting it, the Tribunal has adopted a limited view of its own role in making an independent decision in deciding the review. It did not independently consider the seriousness of the misconduct; the range of sanctions that it had the power to impose; PSB’s fitness to continue be a police officer; or, on a fair reading, in discounting the CCC’s submissions, whether maintaining public confidence was served by the sanction of the already served demotion. [59] Although it mentions that the sanction imposed should serve the objects of discipline;69 and states that the demotion is a reflection of the objective of the disciplinary process,70 it does not discuss those objects or explain how the sanction meets the objectives. It is not apparent that the Tribunal brought the public perspective to bear in doing so, other than perhaps in discussing punishment,71 which for the reasons later explained, was not a relevant consideration in imposing a disciplinary sanction. [60] In my view, on a fair overall reading of its reasons for decision, it proceeds from the basis that it should confirm the original decision-maker’s decision, rather than from the basis that it is to make the decision independently bringing the public perspective to bear in imposing a sanction that achieves the purposes of discipline. [61] On this basis, in my view, the Tribunal proceeded in such a manner that it misapplied Aldrich v Ross. That is, it acted on a wrong principle, with the result that the exercise of its discretion miscarried. Ground 3: Did the tribunal err in mitigation of the sanction based on PSB’s diagnosed PTSD? [62] It is convenient to consider ground 3 before turning to Ground 2. [63] It is not in issue that the Tribunal was entitled to treat PSB’s PTSD as a mitigating factor. [64] The Tribunal said as follows: [69] That is also the case in these proceedings. As the court observed in R v Yarwood: But if fellow practitioners and the public were aware of the extent of his illness they would not require condign punishment to be imposed, rather the punishment should be ameliorated. [65] The CCC submits the Tribunal’s error was in applying considerations relevant in criminal sentencing, in making a disciplinary decision. It submits that although the considerations may overlap, they are not coextensive because criminal proceedings 69 RFD [39]. 70 RFD [80]. 71 RFD [69] and [72]. -- 14 of 25 -- 15 and disciplinary proceedings have different purposes. In particular, disciplinary sanctions are protective in nature, in difference to punitive criminal sentences. [66] The CCC submits that, rather than R v Yarwood72, the Tribunal ought to have considered the principles identified by the Tribunal in the disciplinary decision of Legal Services Commissioner (LSC) v Yarwood.73 In the criminal proceedings, owing to his mental illness, the Court of Appeal considered ‘condign punishment’ was not warranted. However, in the disciplinary proceedings, the Tribunal said that a psychiatric disorder which causes misconduct may be relevant in considering the person’s fitness to continue in the 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.74 In LSC v Yarwood, the Tribunal found the misconduct was not caused by the mental health issues, and the practitioner’s name was removed from the roll of legal practitioners. [67] The CCC raises a number of issues in relation to this issue. The CCC says that in PSB’s case, the evidence was clear that the ‘cause’ of the misconduct had not been removed. It argues that PSB’s conduct occurred over a significant period of time, in relation to several more junior female officers, in diverse locations, and involved, as the Tribunal found, a degree of premeditation. Further, it submits that there was no evidence the cause had been removed, rather that it had not. Dr Dodds evidence, which the Tribunal below accepted, was to the effect that PSB required further treatment by way of specific trauma focussed therapy which was ‘very hard, if not impossible’ to do during the stress of disciplinary proceedings.75 [68] Therefore, the CCC says the Tribunal could not have accepted the cause of the conduct, namely, the PTSD, had been removed and that the Tribunal erred ‘in not concluding that the protective nature of disciplinary proceedings required’ PSB’s removal from the police service.76 It argues that it was not enough that the risk of a reoccurrence of PSB’s behaviour may have diminished. The CCC submits that public confidence and internal confidence was not promoted by the sanction imposed by the Tribunal, because PSB’s lack of insight into the behaviour causes at least potential practical problems for a sergeant who is a senior officer to whom complaints of sexual abuse by other officers might be made by more junior officers. [69] PSB submits that the Tribunal has explicitly adopted well-established criminal law sentencing principles in respect of mental health issues in disciplinary proceedings, consistently with the Tribunal’s reliance here on Court of Appeal decision in R v Yarwood.77 In particular, PSB relies upon the approach taken in Austin v Deputy Commissioner Peter Martin;78 Price v Deputy Commissioner Gee;79 OP v Gollschewski (No 2);80 and LCK v Health Ombudsman (‘LCK’). 81 PSB submits that the earlier decisions relied upon by the CCC prior to the Tribunal adopting the 72 [2011] QCA 367 73 [2015] QCAT 208 (‘LSC v Yarwood’). 74 LSC v Yarwood [79]. 75 RFD [84]-[86]; Transcript I-20, lines 35-38. 76 Submissions of CCC filed 16 March 2021, 42. 77 R v Yarwood [2011] QCA 367, [34]. 78 [2018] QCAT 120 (‘Austin’). 79 [2019] QCAT 179. 80 [2021] QCATA 45 (‘OP v Gollschewski’). 81 [2020] QCAT 316, [36]-[40]. -- 15 of 25 -- 16 approach in the criminal sentencing decision of R v Yarwood in police discipline are no longer relevant. [70] Further, PSB submits that the CCC misstates the third step expressed in LSC v Yarwood. He says that the Tribunal was not required to be satisfied that the mental health condition was resolved, rather it was required to consider risk of recurrence. As there had been no recurrence of the behaviour and PSB had engaged with health professionals, a degree of insight could be inferred. He relies upon statements from referees that refer to his embarrassment and remorse.82 [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 Martin83, 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.84 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.85 [73] Later in time again, in LCK, 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.86 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),87 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.88 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 [74] I turn to consider the Tribunal’s reasoning about PSB’s PTSD and its effects in mitigation, as well as the relevant evidence before the Tribunal. [75] The Tribunal accepted Dr Dodds evidence, which the learned Member said was that PSB’s PTSD was the ‘sole or dominate (sic) cause’ and is a ‘significant causal factor’ of the misconduct.90 Dr Dodds written evidence had gone further than the Tribunal records: he opined that all of PSB’s behaviour was attributable to his PTSD,91 and that 82 Appeal Book, Statement of Joseph Cranitch, p 79. 83 Austin (n 80). 84 Austin (n 80) [36-37]. 85 [2019] QCAT 179, [26-27]. 86 LCK v health Ombudsman [2020] QCAT 316, [38]-[40]; LSC v XBN [2016] QCAT 471, [76-82]. 87 OP v Gollschewski (n 85). 88 Ibid [14]. 89 Ibid [24]. 90 RFD [64], [65]. 91 Transcript I-17, lines 32- 46 and I-18, lines 2-3. -- 16 of 25 -- 17 it was the significant causal factor.92 The Tribunal accepted that PSB’s ‘culpability’ was reduced by his condition, but that was not to say that he was not culpable at all.93 [76] As the CCC submits, Dr Dodds made some concessions in cross-examination. In particular, he conceded when asked about PSB’s ability to conceal his behaviours from some officers and manipulate circumstances to facilitate the behaviour that: ‘indicated that at some level, he was aware that…. To behave in that kind of way was – was inappropriate, but it seems like… when the moments were there where he wasn’t likely to get caught… he would switch into this different state and I mean, it is surprising that he never got caught by anyone else. I would have to wonder about that, but I don’t know that that’s necessarily a consciously driven thing or just a – an opportunistic thing…’ 94 and ‘… the mental urge – the- the internal distress would … seek some kind of outlet and -- and I think that under those circumstances he would sometimes plan something like that in order to have the opportunity to exhibit himself and relieve himself of whatever that tension was…’95 [77] The learned Member says he was unable to accept that PSB could have behaved as he did ‘without some degree of premeditation, planning and concealment.96 Further, the Tribunal did not accept, despite accepting Dr Dodds evidence, that PSB did not see his conduct as inappropriate and was oblivious to its effects on others, that ‘PSB could think it appropriate to behave in this manner while on duty and in his workplace.’97 [78] The CCC submits that in finding PSB had some appreciation of the inappropriateness of his conduct, it had therefore rejected Dr Dodds’ evidence. Having regard to the passage set out above, I do not accept this is the case. Based on Dr Dodds’ evidence, it was open for the Tribunal to reasonably infer that in Dr Dodds opinion on some level, consciously or unconsciously, PSB must have known the conduct was inappropriate in the workplace and he’d therefore make plans to manipulate workplace circumstances such as to give him the opportunity to relieve himself of the internal distress when unlikely to be caught. Although the Tribunal could have more clearly explained the basis for its findings, the findings it made were open. [79] The Tribunal below accepts Dr Dodds’ evidence that the behaviour was out of character for PSB – it not having occurred previously or since the misconduct.98 The Tribunal was cognisant of the period over which it occurred, referring to it as occurring over some two years99 and a long period of time.100 [80] In relation to the PSB’s condition, in his report dated 24 March 2019, Dr Dodds opined that PSB ‘now has more insight’, as a result of treatment. Dr Dodds oral evidence was to the effect that PSB had, developed only limited insight into his behaviour.101 Dr Dodds said that further treatment for his PTSD, namely specific trauma focused therapy could not realistically occur until the stressor of proceedings no longer 92 Appeal Book, p 85. 93 RFD [71]. 94 Transcript I-19, lines 7-13. 95 Ibid, lines 22- 25. 96 RFD [74]. 97 RFD [73]. 98 RFD [59]. 99 RFD [40]. 100 RFD [74]. 101 Transcript I- 16, lines 34-40; I-17, lines 9-24. -- 17 of 25 -- 18 affected his ability to do it. However, he had received supportive psychotherapy, which Dr Dodds considered had assisted him to gain some insight. [81] Dr Dodds opined that a diagnosis of PTSD affected understanding of wrongdoing, insight and remorse depending ‘on the level of disconnection and dissociation somebody has from – from their actions’ and that ‘impulse control ability to filter and modulate emotions - - all of those things are – are affected by post-traumatic stress disorder. It affects pre-frontal cortex functioning, which is where most of our social control and impulse control …. filters the appropriate social behaviour….. PTSD directly has a negative effect on those parts of the brain.’102 [82] Under cross-examination, Dr Dodds explained that PSB ‘has much more awareness that his behaviour was bizarre and inappropriate. But he still has not fully grasped that….’ and ‘So he has some way to go.’103 However, he said, “I just think that he’s not been able to reflect fully on- on how bizarre his behaviour was…. He’s now beginning to see that it – that it wasn’t’ normal.104 Later, in response to questions about whether PSB lacked empathy for the female officers, Dr Dodd’s said, ‘my impression has been that not really a lack of empathy, but an obliviousness by just not – just not getting it …’ and ‘an obliviousness that it would have an effect on anybody’.105 The Tribunal accepted this evidence.106 [83] Dr Dodds was ‘not quite sure where he (PSB) currently stands…’ in appreciating the position that he placed the female officers in,107 although he had more of a realisation that he’d done something wrong. Dr Dodds considered that as the circumstances following his second marriage breakdown was a major trigger, the likelihood of future similar conduct was ‘extremely low, because the circumstances are now different for him.’108 [84] As discussed earlier, the Tribunal found that a recurrence of the behaviour was unlikely.109 The CCC contends that was insufficient because the ‘cause’ had not been removed, as contemplated in the ‘test’ identified in LSC v Yarwood. In other words, the PTSD was not fully resolved. Therefore, the CCC argues that a finding that a recurrence of the misconduct was unlikely was not enough. It submits in effect that the Tribunal was obliged, because PSB’s mental health condition was not fully resolved, to find PSB not fit to continue to serve as a police officer, absent complete resolution of PSB’s PTSD, and the consequent gaining of complete insight. [85] The approach discussed in LSC v Yarwood, in taking a mental health condition into account is not couched in mandatory terms. Nor could it be. The discretion afforded to a tribunal in imposing sanction is a broad one. Exercising the discretion requires of weighing all of the relevant factors in the particular circumstances of the person to be sanctioned. 110 102 Transcript I-21, lines 40-47 and I-22, lines 2-4. 103 Transcript I- 14, lines 18-21. 104 Transcript I-14, lines 26-30. 105 Transcript I-16, lines 38-41. 106 RFD [60]. 107 Transcript I-17 line 10. 108 Transcript, I-17 Lines 19-24. 109 RFD [65]. 110 Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201. -- 18 of 25 -- 19 [86] The Tribunal referred to Dr Dodds’ evidence that while insight was necessary at some level to reduce risk of recurrence of similar conduct, it was not critical, and it accepted that a recurrence of the misconduct was unlikely, despite his lack of insight.111 However, it did not consider in the broader sense PSB’s fitness to remain a police officer having regard to the condition and his misconduct and the purposes of discipline. Rather, it considered only whether ‘the public or his fellow officers would demand dismissal if aware of his work-related’ PTSD ‘or the effect it had on his actions’.112 This error appears to me to arise directly from the Tribunal’s reliance in error on the quoted passage from R v Yarwood. As these are disciplinary proceedings, whether ‘condign punishment’ should be imposed was not relevant. Punishment was not a relevant consideration. The protective purpose of discipline was relevant. In proceeding in the manner it did, the Tribunal fell into error. [87] Although it was relevant to consider whether a recurrence of the behaviour was likely, that was not of itself sufficient. Recurrence will very often be unlikely because the mental health condition has been fully treated and resolved with the consequence that complete insight has been gained. That is not so here. PSB’s insight is limited. The evidence attests to an ongoing ‘obliviousness’ as the inappropriateness of the conduct, despite some gains through psychotherapy. [88] Accepting as the Tribunal did, that his PTSD was a significant cause of PSB’s uncharacteristic misconduct, the Tribunal was obliged in determining the appropriate sanction to consider relevant matters. That the PTSD remained an active and essentially untreated condition was undoubtedly relevant to that consideration. Although the Tribunal acknowledges that the condition was unresolved, in observing that treatment could not progress until the proceedings were finalised113 and in referring to the specific trauma focused therapy proposed by Dr Dodds to treat the PTSD in order for PSB to fully accept responsibility for his actions,114 it does so in the limited context of discounting the utility of imposing supervisory conditions related to the proposed treatment. [89] The Tribunal ought to have considered whether, and if so how, PSB’s unresolved and untreated PTSD was to be taken into account when determining a sanction that fulfilled the protective purposes of discipline. As the CCC contends, the Tribunal failed to make a relevant finding of fact that the condition was unresolved and untreated. Given the protective purpose of disciplinary proceedings, this was a relevant consideration in determining the appropriate sanction. Although in my view, LSC v Yarwood did not oblige the Tribunal to take a particular course, based on the evidence before it the Tribunal was obliged to find that the PTSD was unresolved and untreated and to consider how that was relevant in determining the appropriate sanction. [90] In failing to consider these relevant matters, it I accept that the Tribunal erred in exercising its discretion. Ground 2: Did the sanction imposed fail to achieve the purposes of discipline? 111 RFD [63]. 112 RFD [72]. 113 RFD [84]. 114 RFD [86]. -- 19 of 25 -- 20 [91] The purposes of discipline include protecting the public; upholding ethical standards within the police service; and promoting public confidence in the police service.115 [92] A variety of arguments are made in support of the CCC’s contention that the sanction imposed by the Tribunal below failed to meet the purposes of discipline. It argues the conduct was so egrarious as to make dismissal the only appropriate sanction in order to ensure protection of the public, uphold ethical standards in the police service and maintain public confidence in the service. [93] It refers to Caesar v Deputy Commissioner Pointing,116 where the Tribunal said ‘….. the question is whether the fact that he had a workplace related mental condition which affected his moral compass can be sufficient to outweigh the expectation within the police service and the general public that he would always act with integrity.’117 However, in Caesar, the officer accepted that if his actions were found to be misconduct, dismissal was warranted. The officer’s mental health condition was not considered in determining the appropriate sanction. In that case, in difference to here, it was argued that the conduct was not misconduct by reason of the mental illness. That argument was rejected. [94] The CCC submits, as it did before the Tribunal below, that PSB’s misconduct is an established pattern of predatory sexual conduct, such that morale will likely be significantly undermined even taking PSB’s mental illness into account. However, Dr Dodds was asked in re-examination whether PSB was a sexual predator. Dr Dodds opinion was that predatory behaviour is instilled in a person’s personality, not something that occurs during a bout of illness.118 [95] The Tribunal did not refer to this evidence of Dr Dodds , nor make a finding that the misconduct was not predatory sexual behaviour. However, the evidence before the Tribunal was clear on this point: a finding that it was predatory sexual conduct was not open. In my view, the Tribunal was entitled to reject the argument advanced before it by the CCC. Although the Tribunal does not specifically say it did reject it, it does not follow that an error was made. It is not incumbent upon a tribunal to traverse every argument made, no matter how unmeritorious. In my view, the argument was plainly unmeritorious: the evidence did not support it. [96] Further, the CCC argues that because the misconduct is so unacceptable and inappropriate that PSB should be dismissed in order to achieve the purposes of discipline. As discussed earlier, it also argues that in his role of Sergeant, more junior officers may make complaints to him about behaviours of other persons which as a result of his limited insight he cannot respond to appropriately. [97] The CCC also argues that Austin119 is not authority for the proposition that when misconduct is attributable to mental illness, specific and general deterrence have no part to play. Rather, it argues that there ‘will always be a question of the nature and degree of the mental illness, and the extent to which it contributed to the conduct.’120 115 CCC Act s 219A. 116 [2017] QCAT 169. 117 Ibid [48]. 118 Transcript I-22, lines 39-47. 119 Austin (n 80). 120 Submissions of CCC filed 16 March 2021 at para 48. -- 20 of 25 -- 21 [98] PSB submits that Lee v CCC; CCC v Lee 121 (Lee) is very clear, dismissal not always required for serious misconduct. The Court of Appeal in Lee specifically rejected the argument that dismissal is the only sanction which could satisfy the purposes of discipline in serious cases of, there, corrupt conduct because relevant mitigating factors must be taken into account. In particular, the Court of Appeal held that unless that was so, ‘…..the law would deny both the width of the discretionary power to make an order or sanction and the existence of the many relevant mitigating factors ….’122 Further, the Court held that in respect of the sanction of dismissal for serious conduct, ‘it is a bridge too far to say that it is an order that must be made in all cases..’123 PSB urged a restorative approach on the Tribunal below in light of PSB’s PTSD and otherwise meritorious service, in light of the new discipline system which commenced on 1 July 2018. [99] The Tribunal says it accepted PSB’s argument that Austin applied to make the case inappropriate as a vehicle for specific or general deterrence.124 That said, the Tribunal found in effect that, while PSB’s PTSD was a significant causal factor, it did not deprive him of the capacity to know that his acts of misconduct were inappropriate while on duty and in the workplace. Further, the Tribunal considered it evident (in that PSB concealed the behaviour from all but those few female colleagues with whom he engaged in the behaviour), that planning and premeditation was required to create the circumstances in which the misconduct could occur undetected.125 As discussed earlier, it found that PSB was ‘culpable’ for his conduct, although his culpability was reduced by his condition. 126 [100] The Tribunal said it accepted that the sanction imposed by the original decision-maker reflected the circumstances of the misconduct, and further that it, in context, reflected the ‘objective of the disciplinary process.’127 However, it does not in its reasons for decision explain what it considered the purpose of the disciplinary process to be in making that finding, and on a fair reading, nor can that be ascertained. The Tribunal confirmed the Assistant Commissioner’s decision. It rejected suspension of the sanction of demotion, it seems because PSB had already served the period of demotion imposed by the Assistant Commissioner.128 In doing so, it considered suspension only in terms of the Assistant Commissioner’s sanction without having regard to the range of other possibilities available to it. In rejecting PSB’s submissions that certain conditions (such as mentoring) might be imposed upon him, the Tribunal was mindful that the terms of the sanction should not impose conditions that were not supported by the evidence.129 Further, it said there was no suggestion as to how treatment might be supervised or monitored.130 [101] The evidence before the Tribunal demonstrated that by all accounts, apart from the period during which the Matters of misconduct occurred, PSB has served as a police officer with a significant degree of distinction and he had been decorated for 121 [2020] QCA 201, [44]-[46]. 122 Ibid, [45]. 123 Ibid [46]. 124 RFD [68]-[69]. 125 RFD [40], [73]-[74]. 126 RFD [72]. 127 RFD [80]. 128 RFD [82]-[83]. 129 RFD [85]-[87]. 130 RFD [87]. -- 21 of 25 -- 22 significant bravery.131 He had risen to the rank of Sergeant, and at the time of the misconduct was Acting Senior Sergeant. He had no prior disciplinary history, having commenced duty in the late 1980’s, until the matters the subject of these proceedings. The evidence before the Tribunal is that PSB had no disciplinary history since these Matters either. He has been decorated for bravery. He has received favourable comments and has filed copies of references attesting to his usual good work and character. This history is also a mitigating factor to be considered as part of the overall circumstances in determining sanction. [102] All of that said, the purpose of disciplinary proceedings is protective in nature. The Tribunal acknowledged that was so in very general terms.132 However, it concerned itself in error with concepts of punishment relevant to criminal sentencing proceedings. [103] The Tribunal observed that the original decision-maker would have demoted PSB outright if not for his PTSD.133 The Tribunal does not discuss its own views about the seriousness of the misconduct in determining sanction, likely because of the errors earlier identified. The misconduct is very serious. In my view, if PSB had behaved in this manner with full insight into his behaviour, it would be such a gross breach of the trust reposed in an officer by the public, and other police officers, and speak to a lack of integrity. Engaging in sexual conduct of the nature of the misconduct in Matters 1, 2 and 3 here in the workplace over a period of some 18 months and while on duty would not, in my view, be acceptable to the public or other serving officers. The Tribunal was required to grapple with PSB’s continued fitness to continue as a police officer having regard to the nature of the misconduct and the mitigating factors, including, of PSB’s untreated but treatable work-related PTSD. In my view, it did not do so. [104] There is no evidence that PSB’s reduced insight may potentially affect his ability to perform his usual operational duties as a police officer. Rather here, (and not in any way to diminish its significance) the issue raised by the CCC is that PSB’s reduced insight may, for the time being, affect his ability to appropriately respond to junior officers complaints about the sexualised conduct of another officer towards them. [105] Here, the Tribunal confirmed the decision of the Assistant Commissioner, reducing PSB in rank from Sergeant 3.6 to Senior Constable 2.10 for one year, effective from 28 August 2018. A sergeant, and indeed, a senior constable, has a supervisory role for more junior officers. Accordingly, PSB automatically returned to the rank of Sergeant irrespective whether he had developed insight into his behaviour, and in any event, even as a senior constable he had continued to have a supervisory role for more junior officers. [106] It is clear from the evidence before the Tribunal that in the intervening period between the Assistant Commissioner’s decision and the Tribunal’s decision on review, PSB’s insight had improved to some extent, but that his PTSD had not resolved and he had not gained complete insight. The evidence was that Dr Dodds expected the PTSD would resolve, and complete insight would be gained by PSB following the specific 131 RFD [70]. 132 RFD [45]. 133 RFD [77]. -- 22 of 25 -- 23 therapy necessary. The Tribunal on review was required to engage with these relevant issues in determining sanction. [107] Having regard to the relevant issues in achieving the purposes of discipline identified here which the Tribunal did not consider, in my view, the exercise of the Tribunal’s discretion miscarried. Disposition of the appeal [108] As discussed, the sanction for Matter 4 should be subsumed in the sanction for the more serious conduct in Matters 1, 2 and 3. [109] The errors made by the Tribunal in imposing sanction are errors of law. Accordingly, I must dispose of the appeal in accordance with s 146 of the QCAT Act. The Appeal Tribunal cannot rehear the proceeding, but it may give the decision that ought to have been given by the Tribunal at first instance, based on the evidence before the original tribunal and the law at the time of the decision appealed. Alternatively, the proceeding may be remitted to the Tribunal for reconsideration. There would of course be inevitable further delays in finalising the proceedings if that latter course was adopted. [110] I am aware that PSB wished to seek leave to rely upon additional evidence if the Appeal Tribunal found it was appropriate to proceed under s 147, and no doubt, if the proceeding was to be remitted to the Tribunal pursuant to s 146. However, in light of the sanction I consider appropriate, to avoid further delay in finalisation of the proceeding (having regard to the very regrettable delays that have already occurred following the hearing of the review, and subsequently, this appeal), I consider the appropriate course, which best accords with the interests of justice, is for me to give the decision that ought have been given by the Tribunal below. [111] Many of the Tribunal’s findings of fact are undisturbed by the errors of law made. In considering the appeal grounds, I have discussed at some length and expressed my views about the evidence and a number of relevant factors that the Tribunal ought to have considered. I do not need to now repeat all of those matters discussed. [112] PSB submits that demotion, carrying with it disgrace and a very serious financial penalty, is a severe sanction134 and that it is the appropriate sanction here, in the circumstances that PSB has already served his one-year demotion, and in all had a 33 year service record with no other adverse entries. PSB also served a period of suspension, some of it without pay prior to the disciplinary decision being made by the Assistant Commissioner. [113] I accept, as the CCC argues, that the extent to which sanction will be moderated due to a mental health condition depends upon the nature and severity of the symptoms and the effect it has on the person subject to discipline. Here, it submits that PSB was not so deprived of control by his PTSD that PSB’s actions can be excused. The latter submission is consistent with the Tribunal’s undisturbed findings of fact. At paragraphs [73-74] the Tribunal effectively found that PSB could not have thought the misconduct in Matters 1, 2 and 3 was appropriate on-duty behaviour despite the effects of his PTSD; and that he could not have behaved in this manner of the period of the misconduct undetected without ‘some degree of premeditation, planning and concealment.’ 134 McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309. -- 23 of 25 -- 24 [114] As discussed, the misconduct is very serious and represents a serious departure from conduct which is acceptable in the workplace, and breach of the trust reposed in PSB as an officer by the public. [115] The purposes of disciplinary proceedings are, as discussed, to protect the public; to uphold ethical standards within, relevantly, the police service; and to promote and maintain public confidence in the service. In my view, the maintenance of public confidence is particularly relevant here. The maintenance of confidence in the police service is not achieved, in all of the circumstances, by demotion for one year after which PSB returned to his prior rank and pay level. [116] As earlier discussed, absent PSB’s work-related PTSD, and irrespective of his otherwise lengthy and highly meritorious service or other mitigating circumstances, I would accept that the misconduct would warrant a sanction of outright dismissal. It is serious misconduct that is entirely unacceptable in any workplace irrespective that it is not misconduct involving dishonest or corrupt conduct. It is misconduct which should not be tolerated in the police service. However, in my view, PSB’s psychiatric condition mitigates the sanction to be imposed here, notwithstanding that he engaged in a degree of planning and concealment and despite the fact he had some level of awareness of the inappropriateness of the behaviour while on duty, having regard to the effects of his PTSD and his general level of lack of insight as a result of the condition. The purposes of discipline must be achieved in imposing sanction. [117] I make the observation here that PSB’s PTSD as a result of the most extraordinarily stressful workplace events wherein he acted selflessly and displayed the utmost commendable bravery. This background is apt to invoke the very human response of perhaps minimising the significance of other less laudable actions – he is, after all a hero, who in so many ways, deserves the admiration and grateful thanks of the police service and the public. Given the psychiatric burden he has carried as result of those events, it may seem incongruous that he faces disciplinary proceedings for conduct significantly attributable to that psychiatric condition. However, in imposing an appropriate sanction for PSB’s misconduct, a tribunal must focus on the task at hand in determining a sanction which achieves the protective purposes of discipline in all of the circumstances. Those purposes are for the overall benefit of the police service and society at large. Appropriate standards and confidence must be maintained for the benefit of all. [118] Having regard to the matters discussed in LSC v Yarwood, the decision about appropriate sanction would be more straightforward if PSB’s PTSD has been fully treated and resolved, as may often be the case in respect of a mental health condition by the time of hearing. However, at the time of the hearing, it was not controversial, that there had been no further misconduct in the intervening period, despite the unresolved condition. [119] A combination of factors is relevant. As earlier discussed, there is no suggestion that PSB’s conduct in carrying out his operational police duties generally is compromised. PSB had not engaged in similar conduct despite the unresolved condition. PSB has developed some greater insight than he had through psychotherapy than he had at the time of the conduct, even though his PTSD is not fully resolved. [120] The CCC has raised a concern about his ability to appropriately respond to a complaint from a junior officer of inappropriate sexual conduct towards them by another person. Without diminishing its significance, this is a limited and very specific issue of -- 24 of 25 -- 25 concern. In my view, should PSB not respond to such a complaint appropriately if one is made, there is a degree of protection afforded by the chain of command operating in the police service. Should PSB not respond appropriately to such a complaint pending resolution of his PTSD then the junior officer could complain to the next most senior officer in the chain of command. [121] It is reasonable to infer from this combination of factors that in the circumstances it is not inappropriate for PSB to continue to serve at his current rank while his treatment progresses and his PTSD resolves. In this regard, I observe that Dr Dodds evidence was to the effect that the treatment could not progress while the stressor of the proceedings remained in place. [122] In the circumstances, the sanction that ought to have been imposed by the Tribunal, is a period of suspended dismissal, such that if PSB engaged in further misconduct similar to the misconduct in Matters 1, 2 and 3 during the period of suspension, he would be automatically dismissed. [123] As I am making the decision that ought to have been made by the Tribunal, the order should be that the suspended dismissal take effect from the date on which the Tribunal’s decision was delivered, namely 10 November 2020, for the period of two years. The effect will be that less than five months of the suspended dismissal will remain to be served when this decision is delivered. [124] I make the observation that time has again passed and it may be that treatment has, in the meantime, progressed and the condition been resolved. During the remaining period of the suspended dismissal, if the condition has not already been fully treated, treatment can progress and the condition be resolved. I do not consider it appropriate to impose supervisory conditions, because I agree with the Tribunal that there is no evidence as to how any helpful monitoring or supervision might be achieved. [125] I make orders allowing the appeal, setting aside the Tribunal’s decision and substituting my decision in the terms explained. [126] In case I am wrong that the errors made are errors of law alone, I make the following observation. If it were necessary to do so I would grant leave to appeal and allow the appeal, and on rehearing in any event make the orders I have set out for the reasons explained. Non-publication order [127] Orders were made in the Tribunal below prohibiting publication of any information identifying PSB and all third parties. Pursuant to s 66 of the QCAT Act, on my own initiative, I make an order, unless otherwise ordered, in similar terms regarding the non-publication of any information identifying or tending to identify PSB or any third parties excluding officers who conducted the investigation and disciplinary process. [128] Should any party wish to make submissions about whether a non-publication order should be made, that it should be made in different terms, they may file submissions to that effect, within 21 days. Otherwise, a final non-publication order will be made in the terms of the current interim order after 28 days. -- 25 of 25 --