Crime and Corruption Commission v McCarthy & Anor; PSB v McCarthy [2020] QCAT 529

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v McCarthy & Anor; PSB v McCarthy [2020] QCAT 529 PARTIES: In OCR246-18: CRIME AND CORRUPTION COMMISSION (applicant) v ASSISTANT COMMISSIONER ALLAN MCCARTHY (first respondent) PSB (second respondent) In OCR321-18: PSB (applicant) v ASSISTANT COMMISSIONER ALLAN MCCARTHY (respondent) APPLICATION NO/S: OCR246-18; OCR321-18 MATTER TYPE: Occupational regulation matters DELIVERED ON: 10 November 2020 HEARING DATE: 8 April 2019 HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: In OCR321-18: Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and or identifying particulars of the applicant and all third parties in proceedings OCR321- 18 is prohibited. In OCR246-18 and OCR321-18: The decision of Assistant Commissioner Allan McCarthy dated 28 August 2018 both in relation to substantiation and sanction is confirmed. -- 1 of 11 -- 2 CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where review of decision on the substantiation of disciplinary charges and sanction imposed – where police officer on duty engaged in inappropriate sexual behaviour and disobeyed a direction of a Senior Officer – where mental health condition of the officer considered in determining sanction Crime and Corruption Act 2001 (Qld), s 219L Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Aldrich v Ross [2001] 2 Qd R 235 Austin v Deputy Commissioner Peter Martin [2018] QCAT 120 Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 R v Goodger [2009] QCA 377 R v Tsiaras [1996] 1 VR 398 R v Yarwood [2011] QCA 367 APPEARANCES & REPRESENTATION: In OCR246-18: Applicant: D J Caughlin, Crime and Corruption Commission First Respondent: S McLeod QC Second Respondent: C Gnech, solicitor of Gnech & Associates In OCR321-18: Applicant: C Gnech, solicitor of Gnech & Associates Respondent: S McLeod QC REASONS FOR DECISION On 28 August 2018, Assistant Commissioner Allan McCarthy (QPS) delivered his findings and reasons in respect of a disciplinary proceeding brought against PSB. The disciplinary hearing notice alleged misconduct against PSB in four matters. Matters 1 to 3 alleged inappropriate sexual conduct whilst on duty with three separate female police officers. Matter 4 alleged that PSB had disobeyed the direction of a Senior Officer during the course of the disciplinary process. In respect of each of matters 1 to 3, QPS found the conduct alleged against PSB substantiated and that it amounted to misconduct. He found matter 4 unsubstantiated. The sanction imposed on PSB was a reduction in rank from Sergeant 3.6 to Senior Constable 2.10 for a period of 12 months. -- 2 of 11 -- 3 The Crime and Corruption Commission (CCC) applied to the Tribunal for a review of the substantiated decision in respect of matter 4 and a review of the sanction. That application is proceeding number OCR246-18. PSB belatedly applied for a review of the decision on 4 December 2018 and an extension of time to make that review application. These are proceedings OCR321- 18. The review application contends that QPS erred in making certain findings relating to substantiation and erred in determining the appropriate sanction having regard to the lack of parity with the sanctions imposed on the “co-offenders”. The Tribunal directed on 20 December 2018 that time for filing of PSB’s review application be extended and that both matters be heard and determined together. Both matters were heard by me on 8 April 2019. QPS takes no position on the CCC’s review of substantiation of matter 4 and in respect of PSB’s review on both substantiation and penalty and says that the decision of QPS in respect of each is the correct and preferable one. PSB says that the QPS decision in relation to substantiation in matter 4 is the correct and preferable decision. Non-publication A non-publication order has been made in respect of proceedings OCR246-18 but no similar order has been made in OCR321-18. The CCC in its submissions suggests that as the same considerations apply in respect of both a non-publication order should be made in respect of proceeding OCR321-18. That does not appear to be opposed by the other parties. I am satisfied that in all the circumstances, and in particular PSB’s ongoing treatment for post-traumatic stress disorder, that it is not in the interest of justice to identify PSB and the officers involved and I propose to make a non-publication order in respect of proceedings number OCR321-18. Substantiation matter 2 In PSB’s review application, he accepts that the conduct charged (including that related to matter 2) amounts to misconduct but challenges certain findings of QPS contained at pages 95 and 96 of the section 21(2) documents. The purpose and utility of so doing is unclear where this review is by way of rehearing. It is not necessary to show error in the original decision maker’s findings. If the findings are overturned it is not submitted on PSB’s behalf that the finding of misconduct should be overturned or that it materially affects the penalty imposed. Of BCS’s version of events it is said are “entirely self-serving and preposterous”. BCS’s interview1 is in my view overwhelmingly self-incriminating. It could be said to be self-serving only to the extent that it clearly identifies PSB as the instigator of both her attendance at the premises and the behaviour itself. 1 Bundle, pages 365-505. -- 3 of 11 -- 4 BCS says that PSB telephoned her to say that he had some Commonwealth Games promotional material to give her,2 that he was there now but would be tied up at the Coast later.3 He was aware that she was working.4 She attended the building wearing her accoutrements, including a tazer and gun5 and because it was after hours, needed PSB to get her into6 and out of the building.7 PSB called her into his office to look at the view8 where see found him standing naked9 with “half an erection”.10 BCS says she “did not know where to look”11 and did not know how she would get out of the building.12 She gave him a hug.13 They then started kissing14 and she performed oral sex on him.15 Her responses to questions during her interview in respect of those matters are unequivocal and candid. The same cannot be said for PSB’s responses. He says BCS instigated the meeting by text16 but later in the interview concedes that he may have done.17 He denied being naked when BCS entered his office.18 He says that she discussed her personal problems with him and he comforted her by giving her a hug (which went from a hug to a kiss to yeah).19 He could not recall whether BCS was working20 or whether she was wearing her gun and tazer.21 He said he probably ejaculated but could not recall.22 BCS says he did not.23 PSB’s memory lapses in respect of what can only be said to be an exceptional circumstance are concerning. To the extent of inconsistency with BCS’s statement I prefer BCS’s version. I do not find BCS’s account of her reaction to the situation in which she was placed to be so outrageous or preposterous as to be unbelievable. That reaction was clearly inappropriate, but she was not in a position to leave without PSB’s cooperation and there were no other officers in the building to report the misconduct or seek assistance. 2 Bundle, page 374, lines 295-300. 3 Ibid, page 374, line 308. 4 Ibid, page 374, line 298. 5 Ibid, page 374, line 331. 6 Ibid, page 374, line 366. 7 Ibid, page 374, line 410. 8 Ibid, page 376, lines 385-386. 9 Ibid, page 376, line 390. 10 Ibid, page 377, line 396. 11 Ibid, page 377, line 404. 12 Ibid, page 377, line 400. 13 Ibid, page 378, line 432. 14 Ibid, page 377, line 406. 15 Ibid, page 377, line 418. 16 Ibid, page 828, line 2401. 17 Ibid, page 846, line 3022. 18 Ibid, page 849, lines 3115–3118. 19 Ibid, page 828, line 2431. 20 Ibid, page 842, line 2891. 21 Ibid, page 847, line 3055. 22 Ibid, page 844, line 2960. 23 Ibid, page 377, line 426. -- 4 of 11 -- 5 I find the conduct particularised in matter 2 is substantiated and amounts to misconduct. Matter 4 It is not disputed that Detective Senior Sergeant Dagger informed PSB that he intended to interview him regarding sexualised and inappropriate behaviour on duty and directed him “not to contact any witnesses you believe could or would be a witness in the matter”, but did not name the other persons involved or provide any more details of the behaviour.24 It is also not disputed that shortly after that direction PSB contacted BCS by telephone and that the subject matter of that conservation was limited to an enquiry about photographs from a work-related matter. The CCC submits that BCS was an obvious potential witness and that by contacting her, regardless of the subject matter of the call, PSB disobeyed a clear direction. When interviewed on the point, PSB said he did not realise BCS was involved in the investigation because he had “spoken to her and had a fair bit to do with her since and have been …”.25 PSB’s position is supported to an extent by his lack of insight in relation to his behaviour generally and particularly his behaviour in relation to BCS and by the content of the conversation. QPS found PSB “to have an unwillingness to accept the uncomfortable truth that you have displayed poor judgment in these situations.”26 The evidence of Dr Dodds supports that finding. Under cross-examination by Mr Caughlin for the CCC, PSB at the start of his treatment, and it follows at the time of the investigation, saw the behaviour in question as “consensual and private” and “not significant”. Both QPS and the CCC have submitted that written submissions made on behalf of PSB indicate that PSB’s lack of insight and in the latter a lack of empathy27 is ongoing.28 That lack of insight is however consistent with PSB considering, wrongly, that his behaviour towards BCS was not inappropriate but rather “consensual and private” and thus outside the scope of any investigation. While I accept the CCC’s submission that the direction was not to have contact (as opposed to avoid discussion) the content has some relevance in my view. If the evidence established that PSB directly or indirectly attempted to engage BCS in relation to the investigation that would inevitably lead to a conclusion that he regarded BCS as a potential witness. That did not occur. The evidence is that this was a work- related call in respect of an unrelated matter. Had the direction itself identified the potential witnesses there would be no issue. I am not however reasonably satisfied the behaviour specified in matter 4 is substantiated. 24 Bundle, page 884, lines 4295-4300. 25 Ibid, page 885, lines 4331-4332. 26 Ibid, findings and reasons, page 107. 27 CCC submissions, page 3, paragraph 14. 28 QPS submissions, page 3, paragraph 11; CCC submissions, page 3, paragraph 11. -- 5 of 11 -- 6 Sanction It is argued on behalf of PSB that there is a lack of parity between the sanction imposed on PSB and that on his co-offenders, BCS, SMS and SCP. BCS, SMS and SCP have been found guilty of misconduct for their part in the incidents involving PSB. BCS and SMS were fined two penalty units ($260) and SCP was reprimanded. While it is conceded in written submissions that PSB should receive a heavier sanction the disparity it is said is too great.29 Leaving aside for the moment PSB’s mental health issues which are dealt with later, I am unable to see how the sanctions imposed for BCS, SMS and SCP are in any way useful in determining PSB’s sanction. It is not for the Tribunal in these proceedings to assess the adequacy or otherwise of those sanctions. If they are inadequate that does not justify reducing the sanction which would otherwise be the correct and preferable one. These are disciplinary proceedings. As the CCC submits, the correct and preferable decision is one that “best meets the objects of discipline”.30 PSB’s misconduct charges are substantiated in respect of an ongoing course of conduct over a period of approximately two years with three junior female officers. His encounters with them were invariably initiated by PSB and in many cases, there is evidence of premeditation and planning on his part. He concealed the behaviour from other officers. In SCP’s case he acknowledged the inappropriateness of his behaviour by apologising but repeated his behaviour shortly after that. It is further argued that PSB should receive “a significant discount of the sanction imposed given the unreasonable and unexplained delays”. Specifically, it is said that the matter was reported to QPS on 17 July 2017. A direction to attend a disciplinary hearing was issued on 18 May 2018 and the findings and reasons were issued on 28 August 2018. The issue is not addressed in the decision under review save to say that the delay “has not occurred for impermissible reasons” and was not “unreasonable”.31 The CCC submits that the delay in the present case “is not inordinate”, a position adopted by QPS, although neither elaborate to any great extent. PSB’s submission does not specify the discount he should receive if the delay could be considered unreasonable. I have some difficulty with the concept of a discount in disciplinary proceedings while the purpose of the proceedings is not punitive but rather protective. The major mitigating factor here, PSB’s mental health condition, has resulted in a significant reduction in the sanction that would have otherwise been imposed both in the decision under review and this decision. The stress of these proceedings is taken into account in so doing. I do not see it as a separate quantifiable mitigating factor that should be allowed in addition. 29 Applicant’s submissions, page 11, paragraph 31. 30 CCC’s submissions, page 8, paragraph 47. 31 Bundle, page 106. -- 6 of 11 -- 7 The sanction imposed on PSB was a reduction in rank from Sergeant 3.6 to Senior Constable 2.10 for 12 months commencing on 28 August 2018. The report of Dr Dodds dated 19 June 2018 was one of the documents considered by QPS. Without it and other reports tendered the time limit for the reduction in rank would not have been imposed.32 The CCC’s position is that even considering Dr Dodds’ report, reduction in rank whether or not limited in time is insufficient. Dismissal is the only appropriate remedy. In oral submissions by Mr Caughlin, it was suggested the one option available to the Tribunal was dismissal suspended for a period of time with supervised conditions. That additional option may arise as a result of Dr Dodds’ response to specific questions dated 5 April 2019 and his oral evidence during cross-examination by Mr Caughlin and Mr McLeod. The question put to Dr Dodds in cross-examination and his responses to them were of assistance in clarifying and refining the observations in his initial report. Dr Dodds is a specialist psychiatrist of long standing. He had seen PSB only once prior to the preparation of his report and proposes the treatment will resume after the conclusion of these proceedings. In re-examination by Mr Gnech, for PSB, Dr Dodds indicated that that course was the appropriate one after the current predominate stressor of these proceedings were concluded. Dr Dodds’ opinion is that PSB developed post-traumatic stress disorder around 2000. His marriage was breaking up in 2000 when PSB was the first responder to an incident where three officers had been shot by an assailant. PSB kept working but felt unsupported by both his wife, who later left him, and the QPS. His condition persisted without effective treatment, exacerbated by further traumatic work experiences and an unhappy 15-year second marriage. His wife suffered from severe chronic depression. That marriage ended in late 2015. The end of the marriage brought about a “dramatic change in mental state, best explained in terms of behaviour disinhibition as a result of the effects of the post- traumatic stress disorder”. Dr Dodds referred to it as a “perfect storm”. In answers to specific questions posed by PSB’s legal advisors, he opines: (a) Post-traumatic stress disorder impaired PSB’s judgement in reference to the conduct; (b) Post-traumatic stress disorder is “the significant cause or factor” related to that conduct; and (c) The events of 2016 were extremely unlikely to happen again and as a result of ongoing treatment is unlikely to occur again. There is no expert evidence which contradicts Dr Dodds’ report and evidence. In submissions, the CCC said the report was sufficient to conclude that post-traumatic stress disorder was the “sole and dominate cause of the misconduct” because: 32 Bundle, Part A, page 108. -- 7 of 11 -- 8 (a) It incorrectly described the duration of the offending conduct; (b) After one consultation Dr Dodds could not conclude that conduct was out of character and directly related to post-traumatic stress disorder compounded by the marital breakup; and (c) It contends the conduct in matter 4 was due to post-traumatic stress disorder in circumstances where the allegations are disputed. In respect of the first of these, Dr Dodds explained in his letter of 5 April 2019 that he relied on incorrect information provided by PSB’s counsel at the time, but the correction of that information did not alter his conclusions. In respect of the second, Dr Dodds confirms his opinion that the behaviour was out of character “in that as far as could be ascertained he had never behaved in this way before this period of time or since.”33 Dr Dodds opined that at the time of the behaviour and the investigation into it, PSB regarded his conduct as “consensual and private” rather than “bizarre and inappropriate” and did not see any need for disciplinary intervention. He said the apparent lack of empathy for the three female officers was not so much a lack of empathy but “obliviousness”. He could see nothing wrong with what he was doing and was oblivious to the possible effects the behaviour would have on them. PSB was, he continued, more aware now that his behaviour was bizarre and inappropriate, but he had some way to go. In response to questions from Mr McLeod that PSB needed very specific trauma focused therapy to understand why he had these episodes, Dr Dodds said that was hard to do while the stress of these proceedings and the possible loss of his career continued. In re-examination he described these proceedings as the “predominate stressor” and their conclusion, the only way he could accept full responsibility. In response to a question from Mr Caughlin he agreed that while insight was necessary “at some level” to reduce the risk of reoccurrence of similar conduct, it was not critical in the circumstances. Some of the circumstances which gave rise to the behaviour, particularly the breakdown of the second marriage, were no longer an active trigger. He assessed the likelihood of reoffending as “extremely low”. I am of the view that Dr Dodds’ oral evidence overcomes Mr Caughlin’s reservations that Dr Dodds’ evidence is “insufficient to conclude that PTSD was the sole or dominate cause of his misconduct”.34 I accept Dr Dodds’ evidence that PSB’s post-traumatic stress disorder is a significant causal factor related to his alleged conduct and his apparent lack of insight into that conduct. I accept that a reoccurrence of the behaviour is unlikely. It is submitted by the CCC that the sanction imposed by QPS “was not sufficiently strong to make clear that such conduct is unacceptable within the QPS, such conduct undermines confidence in the QPS and the morale of its officers”. 33 Dr Dodds’ Response to specific questions dated 5 April 2019. 34 CCC submissions, page 9, paragraph 52. -- 8 of 11 -- 9 It is submitted on behalf of PSB that PSB’s mental condition at the time of the offending behaviour and investigation both reduces his moral culpability for the behaviour and eliminates general and specific deterrents as a consideration in determining sanction. Mr Gnech referred the Tribunal to a series of decisions in various jurisdictions in criminal35 and disciplinary36 proceedings. In Austin, a police disciplinary proceeding in this Tribunal, Member McLean Williams, after considering those decisions said: The principles just described are applicable in police disciplinary proceedings in Queensland. In a context (as here) where the medical opinion given by Dr Dodds is not disputed, the result should therefore be one in which Constable Austin’s case is categorised as an inappropriate vehicle for either specific deterrence or general deterrence.37 That is also the case in these proceedings. As the court observed in R v Yarwood: But if fellow practitioners and the public were aware of the extent of his illness they would not require condign punishment to be imposed, rather the punishment should be ameliorated.38 In respect of PSB’s service history, QPS said: I note you were appointed a constable of Police on 1 July 1988 and currently hold the rank of Sergeant 3.6. I note your service history, you have performed a myriad of duties and roles within the service, including two years within ethical standards command. Your service profile reflects you have no history in accordance with section 6 sanctions, disciplinary proceedings (police officers) policy. I also note that you have been the recipient of 12 favourable comments. I note the awards that you have received in your 30 years of service and make mention of the 2000 Queensland Police Service Valor Award and the 2015 Australian Bravery Decoration – Group Bravery Citation relating to the shooting incident involving Nigel Parodi. I am extremely mindful that your psychological reports contribute [sic] your actions on the night in assisting your fellow officers to be an underpinning factual cause of your post-traumatic stress disorder.39 At the time of the behaviour, PSB performed duties as the [REDACTED], and otherwise continued to discharge his duties without unfavourable comment. While I accept that his culpability is reduced by his condition, that is not to say he is not culpable at all. I do not accept that the public or his fellow officers would demand dismissal if aware of his work-related post-traumatic stress disorder or the effect it had on his actions. While I accept the evidence of Dr Dodds that PSB did not see his sexualised behaviour as inappropriate and was oblivious to its effects on others I am unable to accept that 35 R v Goodger [2009] QCA 377; R v Yarwood [2011] QCA 367; R v Tsiaras [1996] 1 VR 398. 36 Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; Austin v Deputy Commissioner Peter Martin [2018] QCAT 120. 37 Austin v Deputy Commissioner Peter Martin [2018] QCAT 120, [38]. 38 R v Yarwood [2011] QCA 367, [34]. 39 Bundle, part A, page 105. -- 9 of 11 -- 10 he could think it appropriate to behave in this manner while on duty and in his workplace. PSB’s behaviour was a course of conduct over a long period of time. It is difficult to accept that he could find himself in the situation he did, without detection by other officers and without some degree of premeditation, planning and concealment. The purpose of this review is to produce the correct and preferable decision.40 The Tribunal may confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and remit the decision to the decision maker with directions it considers appropriate. Were it not for PSB’s mental condition and ongoing treatment of the condition the original decision maker would have demoted him outright.41 Aldrich v Ross42 requires that having regard to the experience of the original decision maker, due consideration should be given to his views unless there is some good reason to depart. That is particularly so in this case when none of the parties is able to provide any comparable decisions. Neither respondent takes issue with the original decision maker’s findings on characterisation of the conduct although the CCC obviously takes issue with the sanction imposed. I agree with Mr McLeod’s submission that the sanction is “plainly a reflection of the circumstances surrounding the misconduct” and to that I would add the objective of the disciplinary process. PSB’s mental condition at the time of the conduct and the investigation makes him an inappropriate vehicle for general and specific deterrence and diminishes, but does not entirely remove, his moral culpability for his behaviour. I accept that demotion causes him humiliation and results in a significant financial cost, however, in view of the seriousness of the misconduct I am of the view that such penalty is not disproportionate to the misconduct in the circumstances. The Tribunal is empowered to suspend the operation of sanction under section 219L of the Crime and Corruption Act 2001 (Qld). The power is discretionary and may be made subject to conditions. I do not believe it is appropriate to suspend the sanction in this case. Firstly, PSB’s demotion expired on 28 August 2019 and presumably his rank of Sergeant 3.6 has been restored. Any embarrassment or humiliation as a result of his demotion has been experienced and the financial loss suffered. While I acknowledge that a suspension may have the effect of restoring the financial loss that is not of itself sufficient to justify suspension. Dr Dodds’ evidence is that these proceedings are PSB’s major stressor and that he is traumatised, and his treatment cannot progress until they are finalised. I am not satisfied that the imposition of a period of suspension assists him in that regard. 40 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 41 Bundle, part A, page 105. 42 [2001] 2 Qd R 235. -- 10 of 11 -- 11 Secondly, the benefit of the imposition of the conditions suggested by Mr Gnech or similar, do not appear to be supported by the evidence and while appealing in theory I am not convinced in the absence of evidence to the contrary that they have any benefit for PSB, the QPS or the public generally. In cross-examination by Mr McLeod, Dr Dodds said that at the conclusion of these proceedings he proposed “specific trauma focused therapy”. In re-examination by Mr Gnech he confirmed that such treatment was the only way PSB would accept full responsibility for his actions. He was not asked and did not volunteer how that treatment could be effectively supervised and monitored by the QPS. It is unsafe to assume that there is a meaningful testing regime (like, for example blood testing where substance abuse is an issue) to determine whether PSB is compliant. Further, there is nothing to suggest that there is any benefit in monitoring. PSB is an experienced and decorated Police Officer. There is no suggestion, other than the misconduct, which is the subject of these proceedings, that his performance is such that mentoring is required or justified. His post-traumatic stress disorder, according to Dr Dodds requires specific trauma focused therapy which clearly the QPS is unqualified to provide or I suggest monitor. I am not satisfied that the imposition of conditions has any benefit to the QPS or the public and may, on Dr Dodds’ evidence, have an adverse effect of PSB’s recovery. I confirm the original decision. -- 11 of 11 --