Anderson v Crime and Corruption Commission & Anor [2021] QCATA 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Anderson v Crime and Corruption Commission & Anor [2021] QCATA 68 PARTIES: PLAIN CLOTHES SENIOR CONSTABLE DAMIEN ANDERSEN (appellant) v CRIME AND CORRUPTION COMMISSION ACTING DEPUTY COMMISSIONER MAURICE CARLESS (respondent) APPLICATION NO: APL065-19 ORIGINATING APPLICATION NO: OCR082-18 MATTER TYPE: Appeals DELIVERED ON: 28 May 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Howard Member Browne ORDERS: The appeal is allowed. The Tribunal’s decision of 5 March 2019 in respect of sanction is set aside and the following decision is substituted: The decision made by Acting Deputy Commissioner Maurice Careless made on 19 March 2018 is set aside and the following decision is substituted: (a) Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 2.5 to Senior Constable paypoint 2.4 for a period of twelve (12) months effective from 19 March 2018; (b) Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would have been if the reduction had not occurred, subject to the usual industrial arrangements. -- 1 of 20 -- 2 CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where decision maker referred to evidence of financial impact – where decision maker was given evidence relating to base salary alone – whether decision maker entitled to rely on approximate evidence in reaching a discretionary decision – whether decision maker erred by placing undue weight on evidence of base salary alone – whether evidence of base salary alone was fundamental to decision – whether the decision maker erred by imposing an excessive or unreasonable sanction – where new restorative policy for disciplinary proceedings in place – whether decision maker erred by failing to implement new policy – whether decision maker was required to implement policy –– whether protective proceedings which prohibit imposition of a significant penalty – where unexplained and significant delay in disciplinary proceeding – – where decision maker placed significant weight on precedent– whether decision maker erred APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – where appeal from a disciplinary proceeding – where decision maker was found to have adopted impermissible findings of fact that went beyond the charges alleged – where appeal proceeds by way of rehearing – whether contextual findings relevant to sanction are open on the evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 147(3)(b) Aldrich v Ross [2001] Qd R 235 Andersen v the Crime and Corruption Commission & Anor [2020] QCATA 75 Crime and Corruption Commissioner v Deputy Commissioner Barnett [2017] QCA 320 Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 Flegg v CMC & Anor [2014] QCA 42 Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 Lee v Crime and Corruption Commission & Anor [2014] QCATA 326 Minister for Immigration and Citizenship v Li (2013) 297 ALR 255 O’Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12 Quilter v Mapleson (1882) 9 QBD 672 -- 2 of 20 -- 3 Scott v Assistant Commissioner Peter Martin [2015] QCAT 423 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 APPEARANCES & REPRESENTATION: Applicant: Black M, counsel instructed by Gnech, C of Gnech and Associates Lawyers Respondent: Gorry JL, counsel for the Crime and Corruption Commission Fraser I, senior legal officer for Acting Deputy Commissioner Maurice Carless This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] On 22 May 2020, the Appeal Tribunal granted leave (in the first appeal decision) to Mr Anderson to appeal the Tribunal’s decision below of 5 March 2019 which was made in its review jurisdiction. We published our reasons for decision.1 [2] The Appeal Tribunal found in the first appeal decision that the Tribunal below made impermissible findings that fall outside the allegations of the substantiated misconduct. Further to that, the Appeal Tribunal found that Mr Andersen was sanctioned by the Tribunal below for conduct that was more serious than the conduct for which he faced disciplinary charges. In granting leave to appeal on this basis, we dealt only with Ground 6 of the grounds of appeal advanced by Mr Anderson. [3] The Appeal Tribunal has now received further written submissions from each of the parties in relation to any issues that arise relating to the remaining grounds of appeal and the rehearing of the review that was before the Tribunal below.2 [4] Because of the success of Ground 6, the decision of the Tribunal must be set aside due to the Tribunal’s error in its 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. That said, it is convenient that we firstly address the remaining grounds of appeal before explaining why on a rehearing the appeal is allowed; the decision of the Tribunal set aside; and a different sanction is substituted. 1 See Andersen v the Crime and Corruption Commission & Anor [2020] QCATA 75 (‘Appeal Tribunal’s reasons’); and the application for leave to appeal or appeal filed 20 March 2019 2 Appeal Tribunal’s Reasons. -- 3 of 20 -- 4 Appeal Ground 1: The Tribunal erroneously concluded the correct amount of financial detriment suffered by Mr Anderson as a result of the sanction imposed by the Tribunal [5] This ground raises a question of mixed fact and law for which leave to appeal would be required. Leave has already been granted for other reasons. If it was necessary to do so, we would refuse leave in respect of this ground of appeal. [6] Mr Andersen contends that in paragraph [67] of the Tribunal’s reasons below the learned Member erroneously calculated the effect on remuneration after a paypoint reduction in the amount of $10,260. Mr Andersen says the calculation of $10,260 is fundamental to the Tribunal’s decision on sanction.3 [7] Mr Black, appearing for Mr Andersen, submitted that the learned Member’s ultimate sanction imposed is based upon his finding that the financial impact to Mr Andersen would be $10,260 based on base salary alone. Mr Black submitted that, although the learned Member has described the figure of $10,260 as approximate, the actual difference after calculating allowances and other add-ons is approximately $14,649.22. Mr Black submitted that the error in the calculation of remuneration is fundamental to the Tribunal’s decision to reduce Mr Andersen’s pay-points. [8] In our view, the pay-point deduction was, as submitted by the Commission, the determining factor relied on by the learned Member, rather than the precise financial detriment.4 The issue of financial impact to Mr Andersen’s salary was a live issue in the hearing below. In paragraphs [66] and [67] of the reasons, the learned Member refers to his calculation of remuneration as made ‘approximately’. The learned Member’s calculation is made in the context of his consideration of the broader submissions on sanction and the schedule handed up in the hearing below that sets out the annual salaries of a senior constable at different pay-points. [9] It was open for the learned Member to make findings based on the evidence including findings about pay-point reduction and the effect, if any, on Mr Andersen’s remuneration. On a fair reading of the Tribunal’s reasons as a whole, the learned Member considered a number of matters relevant to the task in determining sanction. The precise calculation of remuneration detriment was not critical to the Tribunal’s decision to reduce Mr Andersen’s pay-point. [10] Therefore, if it was necessary to do so, we would see no error in the learned Member’s approach. Ground 1 of the appeal is without merit. Grounds 2, 3, 4 and 5: Excessive sanction [11] In the oral hearing before this Appeal Tribunal, Mr Black appearing for Mr Andersen addressed Grounds 2, 3, 4 and 5 together. Mr Black referred us to the Court of Appeal decision in Flegg v CMC & Anor,5 and submitted that each of the grounds of appeal should be treated as a ground of unreasonableness as explained in Minister for 3 Appellant’s outline of submissions filed 12 August 2019, p 6. See Tribunal’s reasons, [67]. 4 Submissions on behalf of the first respondent filed 2 September 2019, [48]. 5 [2014] QCA 42 (‘Flegg’). -- 4 of 20 -- 5 Immigration and Citizenship v Li.6 Further to that, Mr Black submitted that the sanction imposed by the learned Member was excessive in all of the circumstances. [12] In Flegg, Gotterson JA with whom Margaret Wilson J agreed, helpfully explains the ground of unreasonableness and sets out the relevant passage from the High Court decision in Li:7 After referring to the close analogy between judicial review of administrative action and appellate review of a judicial discretion identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 41] in the context of unreasonableness and to the principles governing the review of judicial discretion articulated in House v The King [(1936) 55 CLR 499] concerning inference of unreasonableness, their Honours said: “…The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” In separate reasons in Li, French CJ reminded that the ground was not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision-maker. Gageler J described the test for unreasonableness as stringent, noting that judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. [13] Approached in the manner that Mr Black argues, the remaining grounds of appeal, properly framed, raise a question of law as to whether the exercise of the Tribunal’s discretion miscarried due to unreasonableness, in the terms discussed by the High Court. The grounds of appeal therefore raise a question of law for which leave to appeal is not required. [14] As discussed earlier, because of an error of mixed fact and law resulting in Mr Andersen being sanctioned for conduct more serious than the disciplinary charge, the Tribunal’s decision cannot stand and we must rehear the proceeding. To that extent, the outcome of the ground/s of appeal are of limited consequence because, in rehearing the matter, we determine it again. That said, the key issues addressed are in any event relevant in our determination of sanction upon rehearing. Ground 2: The sanction imposed does not properly reflect the principles of the new police discipline system which is focused upon a restorative rather than punitive approach Ground 3: The Tribunal erred by not placing sufficient weight upon the mitigating circumstances of the appellant including but not limited to the appellant’s exemplary service history before and after the conduct as well as the 6 [2013] HCA 18; (2013) 297 ALR 225 (‘Li’). 7 At 15 and 16. -- 5 of 20 -- 6 restorative steps already undertaken by the appellant to ensure such conduct did not occur again in the future [15] Mr Andersen submits that a significant sanction is not required in protective proceedings and imposing one is in direct conflict with the new police discipline philosophy of restoration, particularly when the conduct is not ongoing or so serious that a sanction is warranted and where an officer’s willingness to show insight and take part in a management strategy will alleviate the need to impose a more ‘arduous’ action to improve behaviour.8 In the present matter, it is submitted that Mr Andersen is clearly very remorseful and has displayed significant insight since the beginning. [16] Relevant to Grounds 2 and 3 are the Tribunal’s findings made in paragraphs [63] and [64] of the reasons about the current police disciplinary policy. Relevantly, the learned Member acknowledges in paragraph [63] that the QPS is moving to a restorative philosophy in police discipline, rather than a punitive approach. The learned Member accepts that Mr Andersen has experienced embarrassment as a result of his actions, has expressed remorse and has given assurance that the incident was an, as stated, ‘aberration that will not be repeated’.9 In paragraph [64] of the reasons, the learned Member states that a significant penalty is nevertheless required and refers to his earlier discussions about the mitigating factors of a prior exemplary record, remorse and the time that the proceedings have taken. [17] The Tribunal considered the matters contended for in Grounds 2 and 3 as relevant. The Tribunal on review is required to observe the objects of disciplinary proceedings and is not confined solely to considering the relevant policy for disciplinary proceedings. We agree with the Appeal Tribunal’s observations made in O’Brien v Assistant Commissioner Taylor & Anor10 about the restorative approach in the police disciplinary system: While there may be a greater focus on restorative approach in the current QPS policy, the former system was not different in not serving the purpose of punishing an officer for misconduct, as opposed to protecting the public. The sanction imposed must be an appropriate one in all of the circumstances of the misconduct.11 [18] The Tribunal on review, in exercising its discretion to arrive at the correct and preferable decision in imposing sanction, must consider all relevant matters including all mitigating and aggravating factors, including those factors referred to in Ground 3 of the appeal. They are not determinative of themselves, nor are they to be accorded any particular weight. They are part of the relevant factual matrix to be considered on review in determining sanction. The Tribunal considered them. These grounds are without merit. Ground 4: The Tribunal erred by not placing sufficient weight upon the unexplained and significant delay by the Queensland Police Service (‘the QPS’) to finalise the disciplinary matter and therefore failed to apply sufficient weight 8 Appellant’s outline of submissions filed 12 August 2019, p 9. 9 Tribunal’s reasons, [63]. 10 [2021] QCATA 12. 11 Ibid, [58]. -- 6 of 20 -- 7 to the fact the QPS had delayed the appellant’s detectives appointment until at least after the finalisation of this investigation and these proceedings [19] Mr Andersen contends that the Tribunal below gave no practical effect to the delay in the disciplinary process in imposing its sanction. Further, it is submitted that by not doing so the Tribunal below erred and Ground 4 is established.12 [20] We observe that in paragraph [23] of the Tribunal’s reasons, the learned Member refers to submissions made by Mr Andersen about delay, noting that the conduct occurred on 30 August 2016 yet disciplinary proceedings were not commenced until 18 December 2017, some 16 months later, and the decision was not handed down until 19 March 2018. Again in paragraphs [30], [56]-[58], [59], [64] and [69] of the Tribunal’s reasons, the learned Member observes the delay in finalising the disciplinary proceedings and the relevance of the delay in determining sanction. The Tribunal refers to the delay in progression to Detective.13 [21] Again, delay in finalising disciplinary proceedings, whilst regrettable, is not determinative of the sanction or to be treated in any particular manner. Delay is but one of the relevant factors to be considered by the Tribunal on review in determining sanction. The Tribunal considered it. Ground 4 is without merit. Ground 5: The Tribunal incorrectly placed significant and therefore excessive weight upon the precedent value of Hetherington v Assistant Commissioner of Queensland Police Service [22] Mr Andersen refers us to the learned Member’s discussion of Hetherington14 at paragraphs [46], [65] and [70] in the Tribunal’s reasons. Mr Andersen contends that the learned Member applied significant weight to the decision in concluding that a reduction from paypoint 2.5 to the bottom level paypoint 2.1 was required but demotion in rank was not.15 Mr Andersen submits that the learned Member generally discusses Hetherington in regards to his public nuisance type behaviour, but that he overlooks the significant feature of Mr Hetherington’s conduct that warranted such a heavy sanction.16 [23] Mr Andersen refers to the aggravating feature in Hetherington as being Mr Hetherington’s production of his police badge and submits that, had it not been for this, he (Mr Hetherington) would not have received a sanction near what he did. Mr Andersen says that his own conduct was never in a range of consideration of a demotion in rank and the learned Member erred by applying the Hetherington matter in the way he did.17 [24] The decision of Hetherington, as do other relevant comparative disciplinary decisions, provides guidance to the Tribunal on review in determining sanction. One of the Tribunal’s stated objectives as provided under s 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is to enhance the quality and consistency of decisions. 12 Appellant’s outline of submissions filed 12 August 2019, pp 9 to 10. 13 Reasons, [62]. 14 Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 (‘Hetherington’). 15 Appellant’s outline of submissions filed 12 August 2019, p 10. 16 Ibid. 17 Ibid. -- 7 of 20 -- 8 [25] However, the Tribunal on review is not constrained to impose the same or a similar sanction in a matter that is found to bear some similarities to another matter. Each case has its own particular facts and circumstances, and each case will turn on its own factual matrix. Any cases identified as involving other similar conduct or issues in determining a police disciplinary matter are but one of a number of relevant matters to be considered by the Tribunal on review. It is important that the purposes of discipline are met. However, any distinguishing features, including the mitigating and aggravating circumstances must be properly considered in imposing sanction. [26] We accept that the learned Member’s consideration of Hetherington influenced the Tribunal’s exercise of discretion in determining sanction. The learned Member identifies, what he describes in paragraph [47] of his reasons for decision as, many similarities between the two cases. He goes on to say in paragraph [47] that in Hetherington, the production of the officer’s police badge was an aggravating feature, as was his supervisory role as a sergeant, which was not so in Mr Anderson’s case. On a fair reading, despite the learned Member observing in paragraph [48] of the Tribunal’s reasons that Hetherington, as stated, ‘cannot be mechanically applied to this matter’, in paragraph [53] of the Tribunal’s reasons, the learned Member says that the matters (meaning in Mr Andersen’s case and Hetherington) have some commonality and goes on to note that in Hetherington the Tribunal rejected the suggestion of a fine of two penalty units. [27] Then in paragraph [70] of the Tribunal’s reasons, the learned Member says that he considers the matter (meaning Mr Andersen’s matter) to be similar to Hetherington and further in paragraph [71] says, amongst other things, that a four paypoint reduction for one year without demotion would represent a balance that ‘has regard to the decision in Hetherington.’ [28] The learned Member identifies the facts of the misconduct in Hetherington.18 However, and key to the error made in his treatment of it, the learned Member did not identify the allegations of substantiated misconduct for which sanction was imposed on Mr Hetherington. [29] The substantiated misconduct in Hetherington was in summary that the subject officer, who was a sergeant of police, sought to obtain a benefit by producing his police identification badge; and conducted himself in a manner that lead to his arrest and charging for the offence of obstruct police. Having been denied entry to licensed premises (after curfew for entry to such premises) by security personnel while off-duty, the officer produced his police badge and proceeded to enter, stepping over the queue rope. He proceeded to the public bar and attempted to purchase drinks. When asked for identification, he again produced his police badge to security staff, who then asked for photo identification and when it was not produced, they called police. Mr Hetherington was restrained pending police arrival. [30] When two officers arrived, they asked Mr Hetherington to step outside to discuss the matter, at which point a Constable placed his hand on him to direct him. Mr Hetherington refused, became aggressive and pushed the Constable’s hand away. The Constable then scuffled with him and arrested him. All three persons went to the ground in the attempt by police officers to handcuff him. He was escorted from the 18 Reasons [14]. -- 8 of 20 -- 9 premises and the struggle continued with Mr Hetherington on the ground. At the watch house, he was later charged with obstruct police. [31] The Tribunal in that case accepted that Mr Hetherington was remorseful. Further, he was found to suffer from anxiety disorder, depression and alcoholism at the time of the incident. His alcoholism was considered ‘two-edged’: it may explain his conduct, but the Tribunal held that it did not excuse it, and that he must accept some responsibility for it. Ultimately, it was accepted that his conduct was out of character.19 There were significant delays which had contributed to his distress.20 Many of the comparable decisions relied upon by Counsel were for largely for, variously, drink-driving and running around a vehicle in a state of complete undress, which the learned Member did not accept provided any real assistance for Mr Hetherington’s matter.21 [32] However, and importantly, The Hon. James Thomas AM QC found that whereas being off-duty was usually an important mitigating factor, in Mr Hetherington’s case this was counter-poised by presenting his police badge and seeking to gain advantage from it.22 The Tribunal there considered the essence of the misconduct was the ‘misuse of the prestige and power of his office,’23 which could not be downplayed and viewed as an ‘alcoholic aberration.’24 A demotion from sergeant to senior constable, to mark community disapproval of the abuse of office, and substantial reduction in pay-point from sergeant 3.5 to senior constable 2.9 was considered the appropriate sanction.25 [33] In Mr Anderson’s case, the substantiated misconduct involves no element of the misuse or abuse of his office, and nor are there counter-poising facts in relation to the off-duty nature of the conduct. These essential distinguishing features were not identified by the learned Member. Substantiated misconduct that amounts in essence to a misuse of office is more serious than the conduct for which Mr Anderson faces sanction. Further, the off-duty nature of Mr Anderson’s conduct was not counter-poised, as was the case in Hetherington. We would find that the learned Member’s treatment of and reliance upon Hetherington resulted in the imposition of a sanction which is unreasonable and excessive in the circumstances. [34] The appeal on Ground 5 would be allowed. However, for the reasons explained, the appeal must in any event proceed by way of rehearing. [35] We turn now to the rehearing of the matter pursuant to s 147 of the QCAT Act. What is the appropriate sanction? [36] First, it is convenient to again set out the one matter of misconduct and relevant particulars presented against Mr Andersen, that he accepts are proven: 19 Ibid, [16]-[19]. 20 Ibid, [24]. 21 Ibid, [27]-[31]. 22 Hetherington, [13]. 23 Ibid, [33]. 24 Ibid, [34]. 25 Ibid, [35] and [38]. -- 9 of 20 -- 10 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) [37] Particulars of the matter were provided as follows: 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; • 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; • Sgt Turner reached into the van to retrieve the phone and you attempted to kick and head-butt him. [38] In rehearing the matter, the Appeal Tribunal must make the decision that should have be made at first instance by the Tribunal in the review proceeding.26 This requires the Appeal Tribunal to bring the public perspective to bear if we reach a different view than the Deputy Commissioner held about sanction based on all of the relevant evidence as to the facts and the inferences to be drawn from them and to determine the correct and preferable decision. [39] As discussed in the first appeal decision, the Tribunal, in determining the review of the sanction decision (and here, the Appeal Tribunal in rehearing the matter), is entitled to make contextual findings about the substantiated misconduct, as well as the subject officer’s other conduct relevant to deciding the correct and preferable 26 In proceeding under s 147(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). See also Flegg v Crime and Misconduct Commission [2013] QCA 376, [15]. -- 10 of 20 -- 11 sanction.27 Any such contextual findings must not stray, however, beyond the ambit of the particulars of the charge and the substantiated matter/s of misconduct, so as to make the sanctioned conduct more serious than the disciplinary charge.28 [40] In the rehearing of this matter, the Appeal Tribunal in determining sanction, like the Tribunal below, must consider all of the material before the Tribunal, including the Deputy Commissioner’s reasons for decision in substantiating the disciplinary charges, and in making contextual findings about Mr Andersen’s conduct as may be relevant to sanction. [41] We have also considered the submissions made by the parties in the proceeding below, the further oral submissions made in the oral hearings before this Appeal Tribunal and further written submissions received.29 [42] In summary, on the rehearing in relation to sanction, we must consider sanction afresh after reviewing all of the evidence. We may make any contextual findings about the conduct in the one matter based on the evidence; and other findings as may be relevant to determining sanction in the circumstances, including in relation to mitigating and aggravating factors, as arise on the evidence. [43] It is convenient to refer here to the updated submissions filed by the parties since the first appeal decision. Mr Andersen makes a number of submissions relevant to the sanction to be imposed by the Appeal Tribunal on the rehearing. Mr Andersen seeks final orders that the Appeal Tribunal set aside the Tribunal’s decision below and substitute a decision that the Deputy Commissioner’s decision, imposed in the disciplinary hearing at first instance, is confirmed.30 Mr Andersen submits that the sanction imposed by the Tribunal below cannot now be supported because the Appeal Tribunal has found that the Crime and Corruption Commission (the Commission) and the Tribunal below proceeded by impermissibly having regard to facts that went beyond those properly relevant to the substantiated misconduct.31 [44] In the alternative, Mr Andersen submits that if the Appeal Tribunal forms the view that a rank or paypoint reduction is appropriate, then the Appeal Tribunal should fix the paypoint reduction for a period of no more than 12 months on and from 19 March 2018, making it clear that Mr Andersen resumes the rank and paypoint at which he would otherwise have been but for the sanction, and order that the sanction be suspended.32 [45] In response, the Commission identifies a number of issues about the particulars of the one matter of misconduct presented against Mr Andersen and relevant findings about Mr Andersen’s conduct that the Commission now contends should be made by the Appeal Tribunal in the rehearing.33 27 Appeal Tribunal’s reasons, [36]. 28 Ibid, [37]. 29 Appeal Tribunal decision and directions dated 22 May 2020. See submissions filed in APL065-19 and the Appeal Book. 30 Appellant’s submissions re: sanction filed 17 June 2020. The appellant also relies on his previous submissions filed in APL065-19. 31 Ibid. 32 Ibid. 33 Submissions on behalf of the first respondent filed 30 June 2020. -- 11 of 20 -- 12 [46] In relation to the final orders to be made in the disposition of the appeal, the Commission submits that a reduction in paypoint from Senior Constable paypoint 5 to Senior Constable paypoint 1 for a period of 12 months should be imposed and that Mr Andersen be then returned to the paypoint at which he would have been if the reduction had not occurred, subject to normal industrial arrangements. Further to that, the Commission submits that Mr Andersen should be ordered to complete the Managerial Strategy as set out in the Notice of Formal Finding dated 19 March 2018.34 [47] The second respondent, the Deputy Commissioner, does not raise any issues in response to the submissions filed by Mr Andersen and the Commission.35 The relevant conduct Matter 1 (a): behaved in a disorderly manner [48] Mr Anderson accepted the conduct alleged in Matter 1(a). The Deputy Commissioner considered the evidence substantiated it. [49] In relation to particular one of matter 1(a), the Deputy Commissioner accepted, as Mr Andersen had submitted, that due to his level of intoxication (.243%) he has a limited recollection of the events that led to his arrest.36 The Deputy Commissioner also accepted that on 30 August 2016, Mr Andersen consumed a number of alcoholic beverages at a work function before proceeding to a Safe Night Out Precinct where he consumed further alcoholic beverages. These matters and that Mr Anderson was intoxicated is relevant to particulars 1 and 2 of Matter 1(a). Particular two of matter 1(a) - …your behaviour was of such a nature that you were evicted from the licensed premises by security officers [50] It is convenient here to deal with an issue that arises on the Commission’s submissions. The Commission refers us to paragraphs [55] and [57] of the Appeal Tribunal’s earlier decision and the error we identified in the Tribunal’s findings below concerning Mr Andersen’s conduct and the reasons why he was evicted from the licensed premises. Relevantly, in paragraph [57] of our earlier reasons we said, amongst other things, to the extent that the Tribunal below found Mr Andersen’s conduct with respect to ‘harassing women’ as being of concern, this constitutes an impermissible finding that went beyond the ambit of the disciplinary allegation. [51] The Commission now submits that an unavoidable consequence of our ruling in paragraph [57] of our earlier reasons is the difficulty in determining what of Mr Andersen’s behaviour was of ‘such a nature’ that led to his eviction.37 The Commission submits that this difficulty is further compounded by the acceptance of the Appeal Tribunal that the ‘disorderly manner’, as found in paragraph [50] of our earlier reasons, includes a wide range of conduct.38 34 Ibid. 35 Second respondent’s outline of submissions filed 1 July 2020. 36 Appeal Book, pp 6-14. 37 Submissions on behalf of the first respondent (the Commission) filed 30 June 2020, p 2. 38 Ibid; and see Appeal Tribunal reasons [50]. -- 12 of 20 -- 13 [52] We accept the Commission’s submission that contextual findings are only relevant after there has been, as submitted, a determination of the behaviour of Mr Anderson which led to his eviction.39 Further, it is trite to say, and we accept as submitted by the Commission, that in rehearing the review on sanction, we must consider what Mr Andersen’s behaviour was that constituted the particulars.40 [53] In exercising its review jurisdiction, the tribunal must make its decision afresh: it is a hearing de novo. In a sanction only review of a police disciplinary review proceeding, the starting point is the substantiated disciplinary charge/s. However, it is relevant to have regard to the findings of fact made and any inferences drawn by the decision--maker in substantiating the disciplinary charge. Sometimes they are brief, particularly where, as here, some or all of the particulars are admitted by the subject officer. Any challenges to the findings of fact made in substantiation of the charge for the purposes of the sanction review only must be considered and determined.41 This occurred in Scott,42 where the disciplinary charge was accepted as substantiated, but an inference drawn by the decision-maker was challenged in circumstances that the inference (of dishonesty) was made but was not an element of the disciplinary charge as brought. [54] As held in the decision of Aldrich v Ross,43 which concerned an appeal relating to a sanction only review decided by the former Misconduct Tribunal, if the Tribunal has the same view of the facts and the inferences to be drawn from those facts as the decisions-maker, it may be appropriate to give considerable respect to the decision-maker’s views as to the appropriate sanction, but the Tribunal must bring the public perspective to bear and make its own determination in the review.44 In the course of doing so, contextual findings may be made by the Tribunal as may be relevant to the substantiated misconduct. [55] The Tribunal must conduct a real review of the evidence in order to make its contextual findings relevant to sanction and to form its own views as to the seriousness of the conduct. The Tribunal must be satisfied as to the appropriate basis to impose the sanction for the misconduct. However, the Tribunal is not conducting a de facto review of the substantiation of the misconduct when determining a sanction only review. There may be a challenge to underlying facts found and inferences drawn (which are relevant to sanction rather than substantiation, and which do not underpin the substantiation decision by the decision-maker) for the purposes of sanction only review. However, the Tribunal in a sanction only review must consider them as part of the relevant material before it. [56] As O’Sullivan45 discusses, contextual findings of fact made in determining sanction, pertaining to the events which constitute the substantiated misconduct itself, may be made, but may not be such that they render the officer liable for sanction in respect of 39 Submissions on behalf of the first respondent (the Commission) filed 30 June 2020, p 2. 40 Ibid, p 3. 41 Scott, [17]-[19]. 42 Ibid. 43 Aldrich v Ross [2001] 2 Qd R 235, [45] (‘Aldrich v Ross’). 44 Ibid. 45 Crime & Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 (‘O’Sullivan’). -- 13 of 20 -- 14 conduct more serious than was charged. The findings must be open on the evidence and relevant to the charge as framed since the Tribunal has no role in reformulating disciplinary charges.46 More broadly, in determining the sanction, relevant findings must also be made by the Tribunal as to the seriousness of the conduct having regard to the charge substantiated and other matters relevant to imposing sanction in the particular case, commonly referred to as aggravating or mitigating circumstances. [57] We observe here that, although the Tribunal set out matter one and the relevant particulars of the disciplinary charge in its decision on the review, it did not in its reasons for decision consider the Deputy Commissioner’s reasons for finding the conduct substantiated as misconduct. The learned Member referred to a summary of the ‘alleged facts and findings’ provided in the Commission’s submissions which was couched in language that resulted, as we found in relation to ground of appeal 6, in findings being made that were impermissibly more serious than the disciplinary charge of misconduct that had been substantiated against Mr Anderson. [58] Findings of fact were made by the Deputy Commissioner in substantiating the particulars of the charge against Mr Anderson. Substantiation of the charge was not reviewed by Mr Anderson and nor have the findings of fact underlying the substantiation been challenged as far as they relate to sanction. [59] We turn to consider now the Deputy Commissioner’s findings of fact in substantiating matter 1(a), particular two, concerning the behaviour that saw Mr Anderson evicted from the licensed premises. [60] As reflected in paragraph [52] of our earlier decision, the Deputy Commissioner’s reasons for decision accepted specified evidence relevant to particular two of matter 1(a) and Mr Andersen’s conduct in the licensed premises. His reasons for decision include a summary of the evidence that he accepted of a security officer, a Mr Blanch, and other witnesses, contained in the investigation report.47 It is sufficiently clear from his reasons for decision that he made findings of fact to the effect of the evidence accepted by him. [61] In particular, he accepted Mr Blanch’s evidence that a female patron complained to him about the behaviour of a male person, identified as Mr Andersen, touching her and her friends.48 Further, he accepted that Mr Blanch walked over to Mr Andersen on the dance floor and observed Mr Andersen grab the same female with his hands and saw the female push him away. Further, Mr Blanch walked over to Mr Andersen to speak to him about his conduct and started to walk him out towards the front door. While Mr Blanch (and other security officers) were walking Mr Andersen to the front door, Mr Andersen had a ‘further verbal altercation’ with another person. [62] On this basis, the Deputy Commissioner accepted that Mr Anderson’s behaviour was of such a nature that he was evicted from the premises by security officers. [63] We see no reason to depart from the facts as found and adopt them. Particular three of matter 1(a) – ‘you resisted security officers…’ 46 Ibid, [71]; and see also Lee v Crime and Corruption Commission & Anor [2014] QCATA 326, [63]. 47 See Appeal Tribunal’s reasons, [54] to [55]. 48 Ibid, [52]. -- 14 of 20 -- 15 [64] Mr Andersen’s conduct relevant to particular three of matter 1(a) in relation to him resisting security officers and then becoming abusive in a public place is also the subject of findings by the Deputy Commissioner in substantiating the disciplinary charge. [65] In his reasons, the Deputy Commissioner accepts the evidence of the Tavern Manager who observed Mr Andersen’s conduct within the licensed premises during the evening.49 The Manager observed Mr Andersen from inside the premises near the front door. The Manager saw Mr Andersen push a security guard and grab hold of a pole near the exit. The Manager walked inside the Tavern to provide assistance and grabbed Mr Andersen’s right arm and removed it from the pole, placing him in a basic arm restraint and took him outside the premises and placed him against a pole outside. Mr Andersen head-butted the Manager. The Manager put his arm up on Mr Andersen’s neck and shoulder area to stop him from head-butting him again. The police arrived and took him away. [66] In accepting Mr Blanch’s evidence, the Deputy Commissioner also accepted that while Mr Blanch and two other security officers walked Mr Andersen outside, he (Mr Andersen) started to struggle and called them ‘fuck heads’.50 [67] The evidence of another security officer, a Mr Harvey, is also accepted by the Deputy Commissioner. Mr Harvey observed Mr Andersen push another security officer (Mr Blanch) and saw Mr Andersen grab a pole near the exit of the premises. Mr Harvey said that Mr Andersen struggled and tried to get away. [68] The version of events set out in transcripts of interview of police who attended the scene, including Sergeant Turner, were also accepted by the Deputy Commissioner. Sergeant Turner observed that the security staff of the Tavern had Mr Andersen up against a post and described the guards as trying to get Mr Andersen’s hand behind his back, and had mainly succeeded in that, but he (Mr Andersen) had hold of one of their shirts and was struggling against them. [69] The Deputy Commissioner found particular three of matter 1(a) proven. Again, we adopt his findings. Particular four of matter 1(a) – ‘you were approached by police and continued to be abusive’ [70] Relevant to particular four of matter 1(a) is the Deputy Commissioner’s acceptance of the transcript evidence of police who attended the scene including Sergeant Turner, Constable Fierer and Constable Armstrong. He does not set out (likely because Mr Andersen did not challenge it) the versions of events they provided as to Mr Andersen’s conduct that satisfied him that Mr Andersen ‘continued to be abusive’. [71] That said, Mr Andersen’s conduct and statements to police are captured on body worn camera footage. The Deputy Commissioner finds that Mr Andersen is heard to say towards arresting officers, one of whom was a superior officer, ‘fuck heads’ and telling them ‘they were kidding themselves’. 49 Appeal Book, pp 6-14. 50 Ibid. -- 15 of 20 -- 16 [72] Further to that, we find that the transcript of evidence from the body worn camera also records Mr Andersen repeatedly calling the police officers ‘fuckwits’ and one of the officers a ‘cunt’.51 We make contextual findings that he did say these words to the officers which are relevant to how Mr Andersen continued to be abusive. [73] We accept the Commission’s submissions that Mr Andersen conducting himself in this manner towards a superior officer is relevant. We make that contextual finding in respect of particular four of matter 1(a).52 We otherwise adopt the Deputy Commissioner’s findings as set out. Matter 1(b) – Mr Andersen was arrested for a public nuisance offence and resisted the police as he was being led towards the van [74] In substantiating matter 1(b), the Deputy Commissioner found that Sergeant Turner and Constable Fierer walked up to Mr Andersen and placed him under arrest, grabbing his arm in a hammer lock. Mr Andersen struggled and attempted to grab Sergeant Turner’s fingers whilst he walked Mr Andersen across the pedestrian crossing to the police van. Mr Andersen resisted Constable Fierer whilst he was walking Mr Andersen to the police van. Constable Fierer transitioned from a number one ‘come along hold’ to a hammer lock after telling Mr Andersen to not resist. As the body worn camera footage from Constable Fierer also shows, Mr Andersen is resisting the officers who warn him on numerous occasions to stop resisting. Constable Fierer said that once they arrived at the rear of the police van, Mr Andersen pushed off the back of the van and verbalised that he was not going into the van. [75] We adopt the Deputy Commissioner’s findings as far as they are set out above. [76] We do not adopt the Deputy Commissioner’s findings as far as they relate to subsequent events at the Watch house. Those findings are not relevant to the allegation of misconduct as particularised. Matter 1(c) – after being placed into a police van Mr Andersen had possession of a mobile phone and when Sergeant Turner reached into the van to retrieve the phone, Mr Andersen attempted to kick and head-butt him [77] The Deputy Commissioner found matter 1(c) substantiated. He had earlier found, and reiterated here, that Mr Andersen’s level of intoxication was .243%. Evidence relevant to matter 1(c) includes the video footage of the incident and the statements of evidence of witnesses, including arresting officers, which was referred to by the Deputy Commissioner in his reasons. [78] On a fair reading, although he referred to them as observations, the Deputy Commissioner made findings that, after Mr Andersen had been placed in the police van for a few minutes, Sergeant Turner saw Mr Andersen using his mobile phone. Sergeant Turner took the mobile phone away from Mr Andersen and Mr Andersen moved his head back and attempted to head-butt Sergeant Turner by flinging his head forward with force. Mr Andersen did not make contact with Sergeant Turner, but it was close enough for him to feel the air on his face. Constable Fierer jumped onto Mr Andersen to try to control him. As Constable Fierer was removing himself from the van, Mr Andersen kicked out at police. 51 Ibid; and see Appeal Book pages 186 and 187. 52 Ibid. -- 16 of 20 -- 17 [79] The Deputy Commissioner found Matter 1(c) proven. We adopt the findings as set out. What is the correct and preferable sanction? [80] The Commission submits, and we accept, that Mr Andersen has engaged in conduct that does not meet the standards of conduct the community reasonably expects of a police officer.53 The Commission submits that the sanction imposed by the Tribunal below should be confirmed on the rehearing of this matter.54 [81] The Commission sets out Mr Andersen’s conduct relevant to sanction and submits that he (Mr Andersen) cannot hide from the fact that it was his decision to: a) Drink an excessive amount of alcohol; b) Behave in a disorderly manner in a Safe Night Out Precinct; c) Call security officers “fuck heads” when they were trying to maintain order by evicting him from a licensed premises; d) Resist being lawfully arrested; e) Call fellow police officers (including a superior officer) a “fuckwit” and one of them a “cunt”; and f) Attempt to head-butt and kick at a superior officer;55 [82] The Commission describes Mr Andersen’s conduct as abhorrent and submits that at any point during the evening he could have altered his behaviour but he made the decision not to.56 Further to that, the Commission submits that Mr Andersen’s conduct was a prolonged resistance of/towards people in positions of authority trying to control his behaviour.57 [83] On the other hand, Mr Andersen submits that there are a number of relevant factors to be considered such as, amongst other things, Mr Andersen’s good service record and favourable comments from others including a member of the public.58 Mr Andersen submits that the conduct was out of character, involved him drinking to excess in a way that was out of the ordinary and he has admitted his guilt and apologised for his actions as well as demonstrated remorse and insight.59 [84] Mr Andersen submits that the Assistant Commissioner’s sanction that was imposed at first instance should be confirmed in the rehearing. Mr Andersen says that the Assistant Commissioner’s decision at first instance is the correct and preferable decision because it included managerial action including financial cost and, amongst other things, the decision reflects the seriousness of the misconduct and was carefully tailored to Mr Andersen’s particular circumstances.60 53 Submissions on behalf of the first respondent (the Commission) filed 30 June 2020, p 6; and see Appeal Book, p 14. 54 Submissions on behalf of the first respondent (the Commission) filed 30 June 2020, p 6. 55 Submissions on behalf of the first respondent (the Commission) filed 30 June 2020, [31]. 56 Ibid, [32]. 57 Ibid, [33]. 58 Appellant’s submission re: sanction filed 17 June 2020. 59 Ibid, [6] and [7]. 60 Ibid, [14]. -- 17 of 20 -- 18 [85] Mr Andersen’s conduct involved a serious transgression. He made uninvited and unwelcome approaches to some patrons in the Tavern resulting in complaint to security staff. He argued with another patron. Then he pushed and head-butted Tavern staff while calling them ‘fuck heads’ as they escorted him from the premises. When approached by police officers, he struggled against them, referring to them in offensive terms, including ‘fuckwits’. He continued to struggle against them as they escorted him to a police van. He later attempted to strike Sergeant Turner, by kicking and head-butting. The Tavern was in a Safe Night Out Precinct. Much of the conduct occurred in the presence of other patrons inside and outside of the venue. Further, it included resisting and later attempting to kick and head-butt an officer who was senior to him, namely, Sergeant Turner. [86] Mr Andersen has a limited recollection of the events that led to his arrest due to his level of intoxication (.243%). Although it does not diminish or excuse the seriousness of the conduct, we do not accept that, given his level of intoxication, it has been established that Mr Anderson ‘made a decision not to’ alter his behaviour. We are not satisfied on the available evidence that he was able, at the relevant time, to make an active decision not to alter his behaviour as contended for by the Commission. As discussed, intoxication is not an excuse although it may put Mr Anderson’s conduct into context. We accept that Mr Andersen’s conduct was, as submitted, out of character and involved drinking to excess in a way that was out of the ordinary for Mr Andersen.61 He must nevertheless take responsibility for it and his behaviour. [87] It is a mitigating factor that the events occurred while Mr Anderson was off duty. Unlike in Hetherington, the misconduct did not involve misuse of the power of his office as a police officer. [88] Further, Mr Andersen joined the service on 4 December 2006 and has a meritorious service record including favourable comment from a member of the public.62 We are satisfied that Mr Andersen has demonstrated remorse for his conduct and taken responsibility for it. We accept that he regrets his actions and is extremely remorseful and embarrassed that his otherwise meritorious service has now been marked by this aberration.63 Further, we accept that Mr Andersen has taken steps to address his behaviour, as submitted, by consulting with a clinical psychologist to discuss the misconduct and influencing facts.64 [89] We also accept, as submitted, that there is a delay of more than 15 months from when the misconduct occurred on 30 August 2016 to when the disciplinary proceedings were commenced on 18 December 2017.65 Further to that we accept, as submitted, that Mr Andersen has at all times both before and after the conduct performed his duties to a high level.66 His progression to Detective has been significantly delayed because of the disciplinary process. [90] These matters relevant to sanction must be balanced against the seriousness of Mr Andersen’s conduct and, in determining the sanction to be imposed, the purpose 61 Ibid. 62 Appellant’s submissions re sanction filed 17 June 2020, [7]. 63 Appeal Book, p 34 and Reasons document, p 9. 64 Ibid. See also Appellant’s submissions re sanction filed 17 June 2020, [7] and the submissions on behalf of the Commission filed 30 June 2020. 65 Appellant’s submissions re sanction filed 17 June 2020, [7]. 66 Ibid. -- 18 of 20 -- 19 of discipline must be upheld. In our view, the public would expect a police officer such as Mr Andersen, with considerable experience and years of service, to conduct himself when off-duty in a way that does not reflect adversely on the reputation of the police service. The sanction to be imposed must serve as a general deterrent to other officers and must maintain public confidence in the police service, although not serve to punish Mr Andersen. [91] We do not consider, contrary to the submissions of the Commission, that Mr Andersen’s conduct is more serious than Hetherington.67 On the contrary, in Hetherington, as discussed earlier, the conduct involved the subject officer misusing the prestige and power of his office, as well as in a manner leading to his arrest and charging for the offence of obstructing police. Further to that, he was of a more senior rank than Mr Andersen, as a sergeant of police with supervisory responsibilities for more junior officers. For the reasons explained earlier, we do not consider that Hetherington is comparable here. Although both Mr Anderson and Mr Hetherington may have been intoxicated at the time of the misconduct (and acknowledging that both include an element of resisting arrest), the essence of Mr Hetherington’s misconduct was otherwise fundamentally different in nature. [92] Weighing up the seriousness of Mr Andersen’s conduct, the length of his meritorious service, the evidence of his remorse and insight into his conduct, such as Mr Andersen taking steps to address his conduct and the subsequent completion by Mr Anderson of the managerial strategy directed by the Deputy Commissioner to complement the sanction imposed when he decided the disciplinary matter, delays in the disciplinary process and his progression to Detective, we consider a reduction in paypoints for a period of 12 months is appropriate in this matter. Further, we have considered that some time has passed since the Tribunal’s decision. [93] We have considered whether a suspended sanction is appropriate noting that a suspended sanction is significant, not a mere formality.68 We have concluded that it is not appropriate in this matter, due to the seriousness of the conduct, although it occurred off-duty. We find that a suspended sanction will not adequately meet the purpose of discipline and reflect the seriousness of the conduct. [94] The correct and preferable decision is to set aside the Tribunal’s decision of 5 March 2019 in respect of sanction and substitute the following: That part of the decision made by Acting Deputy Commissioner Maurice Careless made on 19 March 2018 to impose a sanction in relation to Matter 1(a), (b) and (c) of two Penalty units is set aside and the following decision is substituted: (a) Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 2.5 to Senior Constable paypoint 2.4 for a period of twelve (12) months effective from 19 March 2018; (b) Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would have been if the reduction had not occurred, subject to the usual industrial arrangements. 67 The submissions on behalf of the Commission filed 30 June 2020, p 8. 68 See Crime and Corruption Commission v Deputy Commissioner Barnett [2017] QCA 320. -- 19 of 20 -- 20 [95] We order accordingly. -- 20 of 20 --