Crime and Corruption Commission v Andersen & Anor [2021] QCA 222

SUPREME COURT OF QUEENSLAND CITATION: Crime and Corruption Commission v Andersen & Anor [2021] QCA 222 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v PLAIN CLOTHES SENIOR CONSTABLE DAMIEN ANDERSEN (first respondent) ACTING DEPUTY COMMISSIONER MAURICE CARLESS (second respondent) FILE NO/S: Appeal No 7235 of 2021 QCATA No 65 of 2019 DIVISION: Court of Appeal PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act ORIGINATING COURT: Queensland Civil and Administrative Tribunal at Brisbane – [2021] QCATA 68 (Senior Member Howard and Member Browne) DELIVERED ON: Date of Orders: 14 September 2021 Date of Publication of Reasons: 15 October 2021 DELIVERED AT: Brisbane HEARING DATE: 14 September 2021 JUDGES: Sofronoff P and Mullins and Bond JJA ORDERS: Date of Orders: 14 September 2021 1. Leave to appeal is refused. 2. Applicant to pay first respondent’s costs on the standard basis. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the second respondent found the first respondent liable for misconduct which occurred while off-duty and imposed a sanction of two penalty units – where the applicant filed an application with the Queensland Civil and Administrative Tribunal (QCAT) which sought to have QCAT set aside that sanction decision and impose what the applicant contended was the correct and preferable decision – where QCAT allowed the application and substituted a sanction which reduced the first respondent’s pay by 4 paypoints – where the first respondent subsequently filed -- 1 of 18 -- 2 an application for leave to appeal to the QCAT Appeal Tribunal – where the Appeal Tribunal ultimately allowed the appeal and reduced the extent of the pay reduction from 4 paypoints to 1 paypoint – where the applicant seeks leave to appeal from the Appeal Tribunal’s decision and, if granted, set aside the Appeal Tribunal’s orders and reinstate the sanction imposed by QCAT at first instance – whether the alleged errors are necessary to correct a substantial injustice or an important point of principle sufficient to warrant the grant of leave Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150 Bown v Lee [2018] QCA 13, cited Chopra v Department of Education and Training (2020) 60 VR 505; [2019] VSCA 298, cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456, cited Commissioner of State Revenue v Harrison [2019] QCA 50, cited Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82, considered Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, followed Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55, considered R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, considered Rintoul v State of Queensland [2018] QCA 20, cited Seirlis v Queensland Building and Construction Commission [2020] QCA 283, cited COUNSEL: E J Longbottom QC, with S E Harburg, for the applicant M Black for the first respondent S A McLeod QC for the second respondent SOLICITORS: Official Solicitor of the Crime and Corruption Commission for the applicant Gnech Lawyers for the first respondent QPS Legal for the second respondent [1] THE COURT: On 30 August 2016, the first respondent (the Senior Constable) embarked on a regrettable course of excessive alcohol consumption whilst off-duty, which resulted in his eviction from a Townsville tavern for disorderly conduct and in his subsequent arrest by police for public nuisance. [2] On 18 December 2017, the second respondent (the Deputy Commissioner) notified the Senior Constable that, following an investigation, he considered the Senior Constable may be liable for disciplinary action pursuant to s 7.4 of the Police Service Administration Act 1990 (Qld) and s 5 of the Police Service (Discipline) Regulations 1990 (Qld) in relation to a particularised matter of alleged misconduct and directed the Senior Constable to attend a disciplinary hearing. [3] The Deputy Commissioner’s notice provided the Senior Constable with details of the alleged misconduct; the particulars thereof; copies of the investigatory report into his -- 2 of 18 -- 3 conduct including the relevant evidence obtained during the course of the investigation; and invited him to respond. The Senior Constable presented detailed written submissions in response, together with references attesting to his previously unblemished record. [4] By agreement, the disciplinary hearing then proceeded on the papers. [5] On 19 March 2018, the Deputy Commissioner found the alleged misconduct to be established and imposed a sanction of two penalty units (about $261.10) and directed the Senior Constable to complete a managerial strategy which required him to perform particular duties under supervision for a set period of time. [6] On 3 April 2018, the applicant (the CCC) filed an application with the Queensland Civil and Administrative Tribunal (QCAT) which sought to have QCAT review the sanction decision and impose what the CCC contended was the correct and preferable decision. The CCC contended that the appropriate sanction was that the Senior Constable’s pay be reduced by 5 paypoints and that he be reduced in rank to Constable. [7] A hearing before Member Paratz took place on 10 October 2018 and involved the Member receiving, without objection, all the material which had been placed before the Deputy Commissioner and with which the Senior Constable was well familiar. Written submissions were delivered, first, by the CCC and then by the Senior Constable, and argument then proceeded at an oral hearing. [8] On 5 March 2019, Member Paratz set aside the sanction imposed by the Deputy Commissioner and substituted a sanction which reduced the Senior Constable’s pay for 12 months by 4 paypoints. Member Paratz had found that the financial effect of a 4 paypoint reduction was about $7,169.1 Member Paratz otherwise confirmed the requirement that the Senior Constable complete the managerial strategy set by the Deputy Commissioner. [9] On 20 March 2019, the Senior Constable filed an application for leave to appeal to the QCAT Appeal Tribunal. The ultimately successful resolution of that appeal involved: (a) argument on the question of leave on 28 November 2019 and 4 December 2019; (b) by a decision published on 22 May 2020, leave to appeal being given, the appeal being allowed in respect of one ground of the appeal, and directions made to allow the remaining grounds to be dealt with by way of rehearing (the first decision);2 (c) further submissions having been delivered by the parties in June 2020, the hearing on the appeal in relation to the remaining grounds of appeal being conducted on the papers; and (d) a final decision being published on 28 May 2021 (the final decision).3 [10] By the final decision, the Appeal Tribunal allowed the appeal and reduced the extent of the 12 month pay reduction from 4 paypoints to 1 paypoint. The financial effect 1 See Crime and Corruption Commission v Carless [2019] QCAT 50 at [67]. 2 See Andersen v the Crime and Corruption Commission [2020] QCATA 75. 3 See Anderson v Crime and Corruption Commission [2021] QCATA 68. -- 3 of 18 -- 4 of a 1 paypoint reduction was not precisely identified by the decision, but must have been less than $3,663, that being the financial effect of a 2 paypoint reduction.4 [11] By application filed in this Court on 24 June 2021, the CCC sought leave to appeal from the final decision of the Appeal Tribunal to this Court, with a view, if leave was granted, to seeking orders setting aside the orders made by the Appeal Tribunal and reinstating the sanction imposed by Member Paratz, thereby increasing the pecuniary sanction from a figure less than $3,663, back up to $7,169. [12] At the conclusion of oral argument, the Court ordered that the application for leave to appeal be dismissed and that the CCC pay the Senior Constable’s costs. These are our reasons for making those orders. Principles governing leave to appeal from the Appeal Tribunal [13] The CCC’s application was governed by s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), which, in the present circumstances, permitted the CCC to appeal from the final decision of the appeal tribunal: (a) only on a question of law; and (b) only if the CCC has obtained the Court’s leave to appeal. [14] The identification that the proposed appeal raises a question of law is not sufficient to warrant a grant of leave. An exercise of judicial discretion is involved. The matters which authority has identified as relevant to the exercise of that discretion include:5 (a) whether there is a reasonable argument that there is an error of law to be corrected; and (b) whether leave is necessary to correct a substantial injustice, or an important point of principle sufficient to warrant the grant of leave has been identified. The principal problem facing the CCC’s application [15] The CCC sought to prosecute an appeal to this Court to achieve the reinstatement of the decision of Member Paratz. As has been mentioned, reinstatement would involve increasing the pecuniary sanction imposed on the Senior Constable by a few thousands of dollars at best, against the background of more than five years of litigation involving two levels of appeal from Member Paratz’s decision. [16] There could be no suggestion that the grant of leave was necessary in order to correct a substantial injustice. But more importantly, to grant leave five years after the misconduct occurred, and to postpone again a final resolution of the disciplinary proceeding for such a small outcome, would arguably involve real injustice to the Senior Constable. [17] The point of principle raised by the proposed appeal would have to be significant indeed to warrant a grant of leave. 4 See Crime and Corruption Commission v Carless [2019] QCAT 50 at [60]. 5 See Bown v Lee [2018] QCA 13 per Sofronoff P (with whom Gotterson and McMurdo JJA agreed); Rintoul v State of Queensland [2018] QCA 20 at [10] per Applegarth J (with whom Morrison and Philippides JJA agreed); Commissioner of State Revenue v Harrison [2019] QCA 50 at [15] per Morrison JA, at [30] per Philippides JA and at [66] per Davis J; Seirlis v Queensland Building and Construction Commission [2020] QCA 283 at [6] per Mullins JA (with whom Philippides JA and Henry J agreed). -- 4 of 18 -- 5 [18] As will appear, the principal problem for the CCC’s application was that, although it raised a reasonable argument that the Appeal Tribunal had erred in the first decision, the alleged error involved, at worst, only a mistaken application of correctly identified and stated legal principles to the particular facts, to reach a conclusion that Member Paratz should not have had regard to some parts of the evidence before him. Such an arguable error was insufficient to warrant a grant of leave in this case, especially when, in the final decision, the Appeal Tribunal in fact had regard to the most significant parts of that very evidence. [19] In order to explain the conclusion just expressed, it is necessary to go through the course of the litigation in a little more detail than was expressed in the opening paragraphs of these reasons, so that the nature of the alleged errors and their relative insignificance to the ultimate outcome may be appreciated. The course of the litigation [20] As has been mentioned, the Deputy Commissioner’s direction to the Senior Constable requiring him to attend a disciplinary hearing concerned a particularised matter of alleged misconduct. The notice recorded the matter and the particulars in this way: “Matter 1 That on or about the 31 st day of August 2016 at Townsville your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you, whilst off duty: a) behaved in a disorderly manner; b) resisted police officers who were lawfully arresting you for a public nuisance offence; c) attempted to strike a police officer. [Section 1.4 of the Police Service Administration Act 1990, section 9 (1) (f) of the Police Service (Discipline) Regulations 1990 and section 16 of the 2012/33 Standard of Practice]. Further and better particulars Investigations have identified that: In relation to Matter 1(a) • On 30 August 2016 you consumed a number of alcoholic beverages at a work function before proceeding to the Flinders Street Safe Night Out Precinct where you consumed further alcoholic beverages in licensed premises; • You became intoxicated and your behaviour was of such a nature that you were evicted from the licensed premises by security officers; • You resisted security officers and then became abusive in a public place; • You were approached by police and continued to be abusive. In relation to Matter 1(b) • You were arrested for a public nuisance offence; -- 5 of 18 -- 6 • You resisted the police officers as you were being led towards a police van. In relation to Matter 1(c) • After being placed into a police van it was noticed you had possession of a mobile phone; • Sergeant Turner reached into the van to retrieve the phone and you attempted to kick and head-butt him.” [21] The direction also provided the Senior Constable with an electronic copy of all the documents relevant to the matter. The material so provided included the following material: (a) the investigation report into the matter; (b) videos in the form of CCTV footage from inside the tavern, from the Townsville City Council, police body camera footage, and police van footage; (c) copies of relevant police notebooks; (d) electronic records of interview of the police involved in the arrest and transcript thereof; and (e) electronic records of interview with the Senior Constable and the transcript thereof. [22] On 15 January 2018, the Senior Constable provided the Deputy Commissioner submissions which, amongst other things, acknowledged that: (a) he had been served with the direction to attend the disciplinary proceeding; (b) he had been served with the disciplinary investigation material; and (c) he had had sufficient time to consider the contents of that material. [23] By agreement between the Deputy Commissioner and the Senior Constable, the disciplinary hearing proceeded on the papers. [24] On 19 March 2018, the Deputy Commissioner delivered a decision in writing together with a document entitled “Findings and Reasons” to the first respondent. Amongst other things, the Deputy Commissioner made the following particular findings relevant to matter 1(a),6 concerning the nature of the Senior Constable’s behaviour that led to his eviction from the tavern by security officers and as to the manner by which he resisted the security officers: “From your own admissions, you acknowledged you attended a work function at the Crown Hotel, Palmer Street, Townsville on Tuesday 30 August 2016. At this location, you consumed approximately 10 alcoholic drinks prior to attending the Flinders Street Safe Night Out Precinct with other members of the Queensland Police Service. Upon attending the Cactus Jacks Nightclub, you consumed a couple more alcoholic drinks and at least one alcohol shot prior to attending the Mad Cow Tavern where you consumed a further 5 to 6 alcoholic drinks. I note you stated in your submission, due to your level of intoxication (.243%) you have a limited recollection of the events that led to your arrest (pg 5 of submissions). I have therefore considered 6 It is not necessary to identify the findings the Deputy Commissioner made in relation to Matters 1(b) and (c). As will appear, they were sufficiently summarised in the subsequent decision by Member Paratz. -- 6 of 18 -- 7 the hand-written statements contained in Constable Rachel Armstrong's police notebook K021535, her interview transcript and CCTV footage obtained from Mad Cow Tavern and Townsville City Council (Appendix 8, 15a, 1 & 2). I accept the evidence provided by Matthew Blanch, security officer of the Mad Cow Tavern in his recollection of the events leading up to your removal by security officers from the Tavern on that evening. Blanch stated during that evening he was approached by a female who advised him ‘this fucking cunt keeps touching me and my friends and if he keeps going I'm going to fucking sling him’. The female described the male person as an older fella with a grey shirt and strips and pointed you out to him. Blanch walked over to you on the dance floor and observed you grab on to the same female with your hands. At this time he observed the female to push you away. He walked over to you to speak you about your conduct and started walking you out towards the front door. Whilst you were walking you had a further verbal altercation with another person. He noted as two other security officers and himself walked you outside you started to struggle and called them ‘fuck heads’. As you continued to struggle, two other security officers placed you up against the pole. During this time the police arrived. I accept the evidence provided by the Mad Cow Tavern Manager Nathan Kemp in his observation of your conduct within the premises during the evening. In particular I note he observed you inside the premises near the front door to push a security guard and grab hold of a pole near the exit. Kemp advised he then walked inside the Tavern to provide assistance. He grabbed your right arm and removed it from the pole, placing you in a basic arm restraint and taking you outside the premises and placing you against a pole outside. Kemp stated ‘we had him up against the pole where he head-butted me. I put my arm up on his neck and shoulder area to stop him from head butting me again. The police arrived and took him away’. I accept the evidence of the security officer Benjamin Harvey. Harvey advised at the time of the incident he was standing at the front door and heard a flicker over the radio. He looked inside and saw you and another security guard Matt. He saw you push the security guard Matt. He observed you to grab a pole near the exit of the premises. As a result he went inside and removed you from the pole. He advised he placed you in a basic arm restraint and took you outside, placing you against a pole. He advised you struggled and tried to get away. The police arrived soon after. I have further considered the interview transcripts of Sergeant Turner (Appendix 14a), Constable Fierer (Appendex 7) and Constable Armstrong (Appendex 8). I accept the version of events provided by Sergeant Turner who advised on 30 August 2016 he performed duty from 2200hrs to 0600hrs at Flinders Street East in the Safe Night Precinct. Sergeant Turner advised at about 0125hrs on 31 August 2016 he was working in company with Constable Armstrong and Constable Flerer. At that time the police van was located across the road from the night clubs on the strip. He stated he ‘observed some -- 7 of 18 -- 8 sort of commotion going on at the front of the Mad Cow with the bouncers there and a male person’. He observed this commotion from about 50 to 60 metres away from where they were standing. As a result all members walked across the road towards the Mad Cow Tavern. Upon arrival Sergeant Turner advised ‘he saw Mad Cow security staff had a male person up against a post, well they were trying to get his hands behind his back and had mainly succeeded in that but he had hold of one of their shirts and was struggling against them’ (pg 3 Appendix 14a). I accept the version of events provided by Constable Flerer (Appendex 16a) who stated on 30 August 2016 he performed duty from 2200hrs to 0600hrs. He stated at around 0125hrs on 31 August 2016 ‘we were made aware of a disturbance at the Mad Cow’. He stated as a result Sergeant Turner, Constable Armstrong and he walked over to the Mad Cow. He stated he activated his body cam and when they got there he could see two security officers holding a male person against the police (pg 3 Appendex 16a) I further accept the version of events provided by Constable Armstrong (Appendex 15a) who stated that on the morning of 31 August 2016 she was working in company with Sergeant Turner and Constable Fierer in the safe night precinct. She advised during that morning whilst sitting in their police van she looked down the street towards the Mad Cow and saw security. She recalled seeing 3 security officers outside, trying to pull someone out of the club and they had someone in their arms. As a result, Sergeant Turner, Constable Fierer and herself walked over to the Mad Cow. At this time she saw a taller security guard and a second security guard holding a male against a pole. She observed Sergeant Turner and Constable Fierer go in and take custody of the male. At this time she stated she looked forward to see the males face and saw that it was you a person she knew to be Detective Senior Constable Damien Andersen.” [25] Ultimately, the Deputy Commissioner found each of the matters 1(a), 1(b) and 1(c) to have been proven to the required standard and found that the matters proved amounted to misconduct. The pecuniary sanction imposed was that the Senior Constable would have two penalty units deducted from his salary. The value of a penalty unit at the relevant time was $130.55. It follows that the value of the financial sanction imposed was $261.10. [26] On 3 April 2018, the CCC applied to QCAT to review the sanction imposed by the Deputy Commissioner in accordance with ss 219G and 219H of the Crime and Corruption Act 2001 (Qld) (CC Act) and ss 17 to 20 of the QCAT Act. The review was by way of rehearing on the evidence: see s 219H of the CC Act. No attempt was made by any party to place new or fresh evidence before QCAT. [27] In written submissions to QCAT dated 13 August 2018, the CCC summarised the facts referable to matters 1(a), 1(b) and 1(c) in this way (footnotes omitted): “On 30 August 2016, the [Senior Constable] attended a work function at the Crown Hotel in Townsville where he consumed approximately 10 alcoholic beverages. After the [Senior Constable] left this function he attended the Flinders Street Night Safe Out Precinct where he attended Cactus Jacks. At this location he consumed more alcoholic -- 8 of 18 -- 9 drinks including at least one alcoholic shot. After leaving Cactus Jack’s the [Senior Constable] attended the Mad Cow Tavern. At this location the [Senior Constable]: a. Consumed a further five to six alcoholic beverages; b. A security officer, Matthew Blanch (“Mr Blanch”), was approached by female patron who advised him “this fucking cunt keeps touching me and my friends and if he keeps going I’m going to fucking sling him”; c. Mr Blanch approached the [Senior Constable] and observed the [Senior Constable] grab the same female patron with his hands who had just approached him. The female patron was observed to push the [Senior Constable] away; d. Mr Blanch escorted the [Senior Constable] out of the venue. As as he was doing this the [Senior Constable] had a verbal altercation with another person and pushed a security guard; e. Mr Blanch and two other security officers walked the [Senior Constable] outside when the [Senior Constable] began to struggle and called them “fuck heads”; f. The [Senior Constable] continued to struggle and was placed against a pole by the security officers. Police arrived at approximately 1:25am on 31 August 2016. One of the security officers, Nathan Kemp, advised he was head-butted at this point by the [Senior Constable] and that the [Senior Constable] was observed to be grabbing the shirt of one of the security officers; g. The [Senior Constable] was then placed under arrest. Whilst being escorted to the police van, the [Senior Constable] grabbed the fingers of Sergeant Turner, attempted to break free and resisted police officers to such an extent that one of the police officers, Constable Fierer, considered placing handcuffs on the [Senior Constable]; h. Upon arrival at the police van, the [Senior Constable] refused to enter the van stating “I’m not going in there”; i. The body worn camera shows the [Senior Constable] resisting police officers despite multiple warnings to stop resisting. The [Senior Constable] can also be heard calling the police officers “fuck heads” and telling them “they are kidding themselves”; j. Whilst in the police van, the [Senior Constable] was observed to be using his mobile telephone. Sergeant Turner took the mobile telephone from the [Senior Constable]. As he was doing this, the [Senior Constable] attempted to head-butt Sergeant Turner by flinging his head forward with force. The head-butt did not connect however it was close enough for Sergeant Turner to feel the air on his face; k. Constable Fierer then jumped on the [Senior Constable] to try to control him. As Constable Fierer was attempting to remove himself from the police van, the [Senior Constable] attempted to -- 9 of 18 -- 10 kick out at police. During this time, Sergeant Turner has struck the [Senior Constable] in a preventative fashion in his face with a fist; and l. Whilst at the Townsville watch house, the [Senior Constable], having been there for over 47 minutes, refused the watch house officer’s request to hold up a name board for a banning notice photograph.” [28] It may be observed that the chapeau and subparagraphs (a) to (f) were a satisfactory summary of the Deputy Commissioner’s findings in relation to matter 1(a), quoted at [24] above. Subparagraphs (g) to (l) were satisfactory summaries of the findings which the Deputy Commissioner made in relation to matters 1(b) and 1(c). [29] In the course of developing its written submissions to QCAT on the facts, the CCC also noted that Constable Armstrong’s evidence before the Deputy Commissioner had shown: “Members of the public witnessed the manner in which the [Senior Constable] behaved both inside the Mad Cow Tavern and outside of the venue. At the time of his arrest, the [Senior Constable] was identified as a police officer by members of the public.” [30] That submission was accurate. Although in his findings and reasons the Deputy Commissioner had not specifically adverted to the fact recorded in the second sentence, he had stated that he accepted the version of events provided by Constable Armstrong, and in the transcript of her record of interview she had stated that she could hear people yelling “he’s a cop”. [31] The Senior Constable did not dispute any of the factual submissions advanced by the CCC in its written submissions. Indeed, written submissions to QCAT dated 21 September 2018 on behalf of the Senior Constable stated: “The particulars of the charge and factual findings by the [Deputy Commissioner] are not in dispute. The [Deputy Commissioner’s] Findings and Reasons in regard to the facts speak for themselves.” [32] As has been mentioned, on 5 March 2018 Member Paratz of QCAT set aside the sanction decision and substituted a sanction which reduced the Senior Constable’s pay for 12 months by 4 paypoints, the financial effect of which was to increase the previous $261.10 sanction to about $7,169. In reaching his conclusions, Member Paratz had accepted and acted on the summary of facts which had been presented to him by the CCC and which has been recorded at [27] and [29] above. [33] On 20 March 2019, the Senior Constable applied to the Appeal Tribunal for leave to appeal the decision of Member Paratz under s 142(3)(b) of the QCAT Act. The application was heard on 28 November 2019 and 4 December 2019. At the hearing, the Appeal Tribunal gave the Senior Constable leave to amend the application to add as a sixth ground of appeal the following: “Ground Six: When deciding what disciplinary action should be taken, the Tribunal impermissibly relied on or took into account facts that went beyond the ambit of the disciplinary allegations in matter 1(a), (b) and (c); namely: (i) That the appellant physically assaulted or harassed one or more female persons prior to being escorted out of the venue. -- 10 of 18 -- 11 (ii) That the appellant physically assaulted a security officer by head- butting the security officer. (iii) That members of the public identified the appellant as a police officer when he was being arrested.” [34] On 22 May 2020, the Appeal Tribunal granted leave to appeal, allowed ground 6 of the appeal, determined that it should proceed to deal with issues that arose from the remaining grounds of appeal at a later stage, and made directions to allow that to occur. The following observations may be made about the reasoning of the Appeal Tribunal in relation to ground 6: (a) The Appeal Tribunal concluded that ground 6 raised a question of mixed fact and law, for which leave to appeal from the Appeal Tribunal was required. It stated that the question whether leave to appeal should be granted was to be determined according to established principles, such as: was there a reasonably arguable case of error in the primary decision; was there a reasonable prospect that the applicant would obtain substantive relief; was leave necessary to correct a substantial injustice to the applicant caused by some error; and was there a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage. (b) The Appeal Tribunal concluded that leave to appeal should be granted in relation to ground 6 because it raised a question of general importance about permissible findings of QCAT in a disciplinary review proceeding, including any contextual findings in determining sanction. More importantly, ground 6 raised a question about whether it was open for QCAT on review to take into account facts or other relevant circumstances concerning the alleged misconduct that fell outside the particulars of the charge presented against the subject police officer. (c) The first identification of legal principle concerning the merits of the appeal in relation to ground 6 occurred when the Appeal Tribunal observed that the starting point for any disciplinary proceeding was the “allegation of misconduct” that was brought against the officer. It went on to say that, consistently with common law requirements reflected in the relevant Queensland Police Service policy for disciplinary proceedings, the subject officer was to be given written details of each allegation including the particulars relied upon to support the allegations, and guidance should be taken from the High Court decision of Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 557 [26] (footnote omitted): “The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge…” (d) The second identification of principle concerning the merits of the appeal in relation to ground 6 occurred in this passage (footnotes in original): “In making necessary findings in a disciplinary review proceeding, we rely on Officer JXR v Deputy Commissioner Gollschewski.7 In Officer JXR, the Appeal Tribunal cautions a Tribunal on review in a police disciplinary proceeding to not 7 Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55. -- 11 of 18 -- 12 stray beyond the particulars of the charge and the matters of misconduct, as found to be substantiated, so as to make the conduct more serious than the disciplinary charge.8 In Officer JXR, the Appeal Tribunal said: Contextual findings are permissible, although the disciplinary charge brought against an officer cannot be thereby reformulated by the Tribunal so as to make the conduct more serious than the charge…9 The approach taken in Officer JXR is consistent with established criminal law principles that an offender should not be punished for an offence of which he has not been convicted.10 In R v De Simoni, the High Court said: …a judge, in imposing sentence, is entitled to consider all of the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.11 That is not to say that the Tribunal on review, in making necessary findings, is constrained to only consider the particulars of the allegation of misconduct. The Tribunal on review is required to consider all of the relevant material afresh and it is open to the Tribunal to take into account what is commonly referred to as ‘contextual circumstances’ relevant to the substantiated misconduct which go to ‘both the gravity of the misconduct as found and in mitigation’.12” (e) The Appeal Tribunal proceeded to summarise the arguments before it and then sought to apply the general principles already summarised to each of the three aspects of alleged impermissible consideration of facts raised by ground 6. (f) As to the evidence of harassment referred to in the first of the matters raised by ground 6, the Appeal Tribunal: (i) accepted that Member Paratz was entitled to take into account all of the conduct which formed the “disorderly manner” as particularised in the misconduct allegation which was of such a nature that caused the Senior Constable to be evicted from the licensed premises by security officers; (ii) observed that such findings, however, that were open to Member Paratz, relevant to the sanction decision, could not stray outside the particulars of the misconduct charge and substantiated misconduct “so as to make the conduct more serious than the charge”; (iii) concluded that to the extent that Member Paratz below found the Senior Constable’s conduct with respect to “harassing women” as being of concern, this constituted an impermissible finding that went beyond the ambit of the disciplinary allegation and, more importantly, the Senior 8 Ibid, [117]. 9 Ibid. 10 See R v De Simoni 147 CLR 383 at 389 per Gibbs CJ. 11 Ibid. 12 O’Sullivan v Deputy Commissioner Brett Pointing [2016] QCAT 510, [41]. -- 12 of 18 -- 13 Constable was not given an opportunity to respond to the conduct that was considered by Member Paratz to be a matter of concern and, on a fair reading of his reasons, that has undoubtedly influenced the sanction imposed. (g) As to the evidence of harassment referred to in the second and third of the matters raised by ground 6, the Appeal Tribunal: (i) found that to the extent that Member Paratz made findings of “assault” in referring to the Senior Constable’s actions with respect to the incident as being relevant in determining sanction, he made an impermissible finding that went beyond the ambit of the disciplinary allegations and, further, the Senior Constable was not given an opportunity to respond to the conduct as found by Member Paratz; and (ii) to the extent that Member Paratz found that the Senior Constable had been identified as a police officer by members of the public as relevant in determining sanction, he made an impermissible finding that went beyond the ambit of the disciplinary charge, and, further, the Senior Constable was not given an opportunity to respond to the conduct as found by Member Paratz. (h) The Appeal Tribunal expressed its ultimate conclusion in this way: “We have found that the Tribunal below made findings about [the Senior Constable’s] conduct that fall outside the allegations of misconduct. We accept that as a consequence, [the Senior Constable] was sanctioned for conduct that was more serious than the conduct for which he faced disciplinary charges and substantiated against him by the Deputy Commissioner. We accept that there might be a substantial injustice to [the Senior Constable] if leave to appeal was not granted. Leave to appeal should be granted.” [35] On 28 May 2021 the Appeal Tribunal allowed the appeal, set aside the orders made by Member Paratz and imposed a sanction, the effect of which was to reduce the extent of the 12 month pay reduction from 4 paypoints to 1 paypoint. The following observations may be made about the relevant aspects of the reasoning of the Appeal Tribunal: (a) The Appeal Tribunal first recorded that by its first decision it had allowed ground 6 and it had found that Member Paratz had – (i) made impermissible findings that fell outside the allegations of the substantiated misconduct; and (ii) sanctioned the Senior Constable for conduct that was more serious than the conduct for which he faced disciplinary charges. (b) The Appeal Tribunal concluded that because of the success of ground 6, the decision below must be set aside due to error in the fact-finding process and the Appeal Tribunal must proceed pursuant to s 147 of the QCAT Act to determine the matter by way of rehearing. (c) The Appeal Tribunal considered the remaining grounds of appeal. Amongst other things, it noted that Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 was a relevant comparative -- 13 of 18 -- 14 disciplinary decision, but concluded that Member Paratz had failed to identify the essential distinguishing features of that case and that the treatment and reliance on that decision led to a sanction that was unreasonable and excessive in the circumstances. (d) For present purposes, it suffices to observe that in its rehearing on the question of sanction, the Appeal Tribunal specifically acknowledged that it was in the same position as Member Paratz, in that it was entitled to make contextual findings about the substantiated misconduct, as well as the Senior Constable’s other conduct relevant to deciding the correct and preferable sanction, but any such contextual findings must not stray beyond the ambit of the particulars of the charge and the substantiated matters of misconduct, so as to make the sanctioned conduct more serious than the disciplinary charge. (e) However, notwithstanding those observations, and the conclusions it had made in relation to the reasoning of Member Paratz, in determining the relevant sanction the Appeal Tribunal expressly took into account the first two matters which had been raised by appeal ground 6 which it had allowed, namely: (i) that the Senior Constable had physically assaulted or harassed one or more female persons prior to being escorted out of the venue; and (ii) that the Senior Constable physically assaulted a security officer by head- butting the security officer. Identification and evaluation of the arguable errors of law made by the Appeal Tribunal [36] The CCC sought leave to advance three grounds of appeal: (a) that the Appeal Tribunal erred by excluding from its consideration relevant conduct of the Senior Constable on the basis that it was not part of the particulars constituting the disciplinary charge; (b) that the Appeal Tribunal erred in law in its application of R v De Simoni; and (c) that the Appeal Tribunal erred in finding that QCAT’s treatment and reliance on Hetherington v Assistant Commissioner of Queensland Police Service resulted in the imposition of a sanction which was unreasonable and excessive in the circumstances. The first alleged error [37] In characterising this as an alleged error of law, the CCC referred to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287–288. For a recent summation of the relevant principles see Chopra v Department of Education and Training (2020) 60 VR 505 at 527 [88] per Tate, Whelan and Kyrou JJA) where the Victorian Court of Appeal observed (footnotes in original): “The principles for distinguishing between questions of law, questions of fact and mixed questions of law and fact are well established.13 13 See Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287–8 (Pozzolanic Enterprises); Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394–8; S v Crimes Compensation Tribunal [1998] 1 VR 83, 88–92 (S); Industry Research and Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564, 576–8 [53]–[57]; Bell v Federal Commissioner of Taxation (2012) 88 ATR 923, 934–5 [36]–[41] (Bell). -- 14 of 18 -- 15 However, those principles are difficult to apply in practice. What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law.14 Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law.15 However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact.16” [38] The CCC argued that in reaching the conclusion that Member Paratz made findings about the Senior Constable’s conduct that fell outside the allegations of misconduct, the Appeal Tribunal must be taken to have compared the facts as found with the charge as particularised and reached a conclusion that the facts as found were not within the meaning of the words used to define the charge as particularised. The CCC argued that that conclusion was not reasonably open to the Appeal Tribunal and therefore constituted an error of law. [39] The particulars are set out at [20] above. The relevant aspects of the charge as particularised were: “Matter 1 That on or about the 31 st day of August 2016 at Townsville your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you, whilst off duty: (a) behaved in a disorderly manner; … Further and better particulars Investigations have identified that: In relation to Matter 1(a) • … • You became intoxicated and your behaviour was of such a nature that you were evicted from the licensed premises by security officers; • You resisted security officers and then became abusive in a public place; • …” [40] If the Appeal Tribunal should be taken to have proceeded by way of construing the meaning of the words used to formulate and then to particularise the charge, then error of law would arguably be demonstrated because: (a) the impugned aspects of the findings made by Member Paratz concerning the Senior Constable having physically assaulted or harassed one or more female persons prior to being escorted out of the venue are within the ambit of the generality of the allegation of behaviour being “of such a nature that [he was] evicted”; and (b) the impugned aspects of the findings made by Member Paratz concerning the Senior Constable head-butting security officers are within the ambit of the 14 S [1998] 1 VR 83, 88. 15 See Pozzolanic Enterprises (1993) 43 FCR 280, 287–8; Bell (2012) 88 ATR 923, 934–5 [37]–[39]. 16 Pozzolanic Enterprises (1993) 43 FCR 280, 287–8; Bell (2012) 88 ATR 923, 935 [38]–[39]. -- 15 of 18 -- 16 generality of the allegation that the Senior Constable “resisted security officers”. [41] On the other hand, it may well be that the better way to characterise the approach of the Appeal Tribunal is that it observed, correctly, that those two aspects of the impugned conduct (and the third aspect of the findings made by Member Paratz concerning the Senior Constable having been identified by members of the public as a member of the police) were not mentioned in the particulars when they should have been if proper particulars were to have been given. They then should be understood to have concluded that to impose a sanction having regard to serious matters not particularised would be to sanction for conduct more serious than the particularised charge. [42] If that were the proper characterisation of the Appeal Tribunal’s approach there would still be a reasonable argument that the Appeal Tribunal erred, but it would not be the argument advanced by the CCC. In the first place, despite the absence of any mention of those matters in the particulars, it was obvious that the Senior Constable had been content to conduct the rehearing before Member Paratz on the broader basis that the particulars of the charge and the factual findings by the Deputy Commissioner were not in dispute: see the concession recorded at [31] above. But, second, in light of that concession and the fact that it was made in response to the CCC’s written submission which relied on all three aspects mentioned in ground 6, it is difficult to see how the Appeal Tribunal could conclude that the Senior Constable was not afforded an opportunity to be heard. And, finally, as the purpose of the requirements of particularity and an opportunity to be heard is to ensure fairness to an accused, it is difficult to see how the Appeal Tribunal could have reached the view that Member Paratz had treated the Senior Constable unfairly. But the identification of such errors would not have availed the CCC, because they would not be pure errors of law and could not be the subject of a grant of leave to this Court. [43] Assuming without deciding that the Appeal Tribunal’s decision should be analysed in the way the CCC contends, what is presently relevant is that the arguable errors of law identified by the CCC do not raise any important general principle. They are matters which turn on the specific facts of this case, the manner by which the charge was formulated and particularised, and how the proceeding was actually fought. [44] Further, if the alleged error was made, it was mostly remedied by the second decision where the Appeal Tribunal actually took into account the first and second matters raised by ground 6. Although the approach in the final decision does seem to be inconsistent with the approach to particularity and fairness set out in the first decision, it does nevertheless reduce still further the merits of the claim that this case warrants a grant of leave to appeal. The second alleged error [45] The Appeal Tribunal made the reference to R v De Simoni at 389 per Gibbs CJ, recorded in the quote from their reasons at [34](d) above. The full passage from the Chief Justice’s reasons is: “… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate -- 16 of 18 -- 17 the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.” [46] The CCC argued that error was involved in the application of R v De Simoni because in that case, the High Court held that De Simoni could not be sentenced for conduct that would amount to a more serious offence, that is, one involving a circumstance of aggravation, where that had not been charged. The CCC then argued that while “misconduct” under the Police Service Administration Act and the Police Service (Discipline) Regulations may be constituted by a range of acts, there is a single range of sanctions that may be imposed in respect of a substantiated charge and there was no uncharged circumstance of aggravation, or more serious charge, available that might expose an officer to a greater maximum punishment. The CCC contended that the principle in R v De Simoni was not to the point. [47] This argument did not reflect a proper understanding of the reasons of the Appeal Tribunal. The quote from the Appeal Tribunal’s reasons set out at [34](d) above demonstrates that the reference to R v De Simoni was a reference made to support the correctness of the articulation of the principle which the Appeal Tribunal actually applied, namely that recorded in the previous Appeal Tribunal decision of Officer JXR v Deputy Commissioner Gollschewski, that: “Contextual findings are permissible, although the disciplinary charge brought against an officer cannot be thereby reformulated by the Tribunal so as to make the conduct more serious than the charge …” [48] That statement from Officer JXR v Deputy Commissioner Gollschewski does not articulate any erroneous proposition of law. It simply identifies the unfairness which would normally be involved in permitting a process in which an officer could be sanctioned by reference to the seriousness of conduct revealed by contextual findings of fact if that conduct was more serious than the charge as particularised. The question whether any such unfairness was involved in the conduct of the rehearing before Member Paratz, given the way that it was run with the explicit consent of the Senior Constable is a different question, and has been discussed in relation to the first alleged error. The third alleged error [49] The Appeal Tribunal was critical of the way in which Member Paratz had relied on Hetherington v Assistant Commissioner of Queensland Police Service as a relevant comparable sentence, even though it accepted that it was relevant to have regard to that decision. [50] The alleged error was that the Appeal Tribunal misconstrued the findings made by Member Paratz as to the distinguishing features of Hetherington v Assistant Commissioner of Queensland Police Service, it being suggested that if the Appeal Tribunal had properly understood his findings it would have concluded that Member Paratz had made no error. [51] There is no merit in discussing this alleged error in any detail, because even if the suggested error could be established and even if, which is doubtful, it could be properly characterised as an error of law, it plainly would not involve any important issue of principle. Conclusion [52] The proper evaluation of the errors arguably made by the Appeal Tribunal leads to the conclusion that they were not errors which themselves raised an important point -- 17 of 18 -- 18 of principle. In the particular circumstances of this case, it was not appropriate to grant leave to appeal. We ordered accordingly, with costs to follow the event – the Deputy Commissioner not seeking any order as to his own costs. -- 18 of 18 --