Andersen v the Crime and Corruption Commission & Anor [2020] QCATA 75

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Andersen v the Crime and Corruption Commission & Anor [2020] QCATA 75 PARTIES: PLAIN CLOTHES SENIOR CONSTABLE DAMIEN ANDERSEN (applicant/appellant) v CRIME AND CORRUPTION COMMISSION ACTING DEPUTY COMISSIONER MAURICE CARLESS (respondents) APPLICATION NO/S: APL065-19 ORIGINATING APPLICATION NO/S: OCR082-18 MATTER TYPE: Appeals DELIVERED ON: 22 May 2020 HEARING DATE: 28 November 2019, 4 December 2019 HEARD AT: Brisbane DECISION OF: Senior Member Howard, Presiding Member Browne ORDERS: Leave to appeal is granted. The application for leave to rely upon fresh evidence filed on 23 August 2019 is refused. THE APPEAL TRIBUNAL DIRECTS THAT: The applicant must file in the Tribunal two (2) copies and give to the first and second respondents one (1) copy of any further written submissions to be relied upon by 4.00pm on 9 June 2020. The first and second respondents must file in the Tribunal two (2) copies and give to the applicant one (1) copy of any further written submissions in response by 4.00pm on 30 June 2020. Unless otherwise ordered and in the absence of a request for a further oral hearing, the Appeal Tribunal will conduct a rehearing of the matter on the papers and without an oral hearing on a date not before 6 July 2020. -- 1 of 19 -- 2 CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – whether decision maker relied on impermissible findings of fact – whether decision maker relied on findings of fact which went beyond the particulars of the charge – whether decision maker entitled to rely upon contextual findings – whether leave should be granted to rely upon fresh evidence Crime and Corruption Act 2001 (Qld), s 21, s 219G Police Service Administration Act 1990 (Qld) s 7.4 Police Service (Discipline) Regulations 1990 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 61, s 147 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Crime and Corruption Commission v Carless & Anor [2019] QCAT 50 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 Harrison & Anor v Meehan [2017] QCA 315 Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 John Urquhart t/as Hart Renovations v Partington [2016] QCA 87 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55 O’Sullivan v Deputy Commissioner Brett Pointing [2016] QCAT 510, [41]. R v De Simoni 147 CLR 383 APPEARANCES & REPRESENTATION: Applicant: Black, M instructed by Gnech, C of Gnech and Associates Lawyers Respondent: Gorry, A of the Crime and Corruption Commission REASONS FOR DECISION [1] On 30 August 2016, Damien Andersen drank a number of alcoholic beverages at a work function and whilst intoxicated went to a tavern (‘licensed premises’) in the Safe Night Out precinct. He was arrested by officers of the Queensland Police Service (‘QPS’) for public nuisance. At the time of the arrest Mr Andersen was a plain clothes senior constable with an unblemished record. At the time of the events, Mr Andersen was off duty. -- 2 of 19 -- 3 [2] Acting Deputy Commissioner Maurice Carless (‘the Deputy Commissioner’) presented one matter of alleged misconduct against Mr Andersen concerning his conduct in 2016. Mr Andersen accepted that he was evicted from a licensed premises by security officers due to his behaviour. [3] Following a disciplinary hearing, the Deputy Commissioner found all of the particulars of the one matter of misconduct to be substantiated and imposed a sanction on Mr Andersen of two penalty units. The Deputy Commissioner also directed Mr Andersen to complete a managerial strategy requiring him to perform general duties for eight shifts to be rostered on work in uniform for both Friday and Saturday nights in the Safe Night Out precinct, such duties to be completed under the supervision of the officer-in-charge. [4] The Crime and Corruption Commission (‘the Commission’) applied to review the Deputy Commissioner’s decision in respect of the sanction imposed on Mr Andersen under the Crime and Corruption Act 2001 (Qld).1 The Tribunal on review set aside the sanction decision and by way of a substituted decision ordered that Mr Andersen be reduced in paypoint from Senior Constable paypoint 5 to paypoint 1 for twelve months and he be then returned to the paypoint at which he would have been if the reduction had not occurred, subject to normal industrial requirements, and that he complete the managerial strategy as set out in the Notice of Formal Finding dated 19 March 2018.2 [5] Mr Andersen now seeks to appeal against the Tribunal’s decision in its review jurisdiction setting aside the disciplinary sanction imposed by the Deputy Commissioner arising from the incident in 2016. [6] Mr Andersen identifies five primary grounds of appeal that he says raise questions of mixed fact and law for which leave to appeal is required:3 Ground One: The Tribunal erroneously concluded the correct amount of financial detriment suffered by the appellant as a result of the sanction imposed by the Tribunal; Ground Two: 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 Three: 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 restorative steps already undertaken by the appellant to ensure such conduct did not occur again in the future; Ground Four: 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 to the fact the QPS had delayed the appellant’s detectives appointment until at least 1 Crime and Corruption Act 2001 (Qld), s 219G. 2 Crime and Corruption Commission v Carless & Anor [2019] QCAT 50 (‘Reasons’). 3 Applicant’s submissions filed 29 November 2019 (‘Applicant’s further submissions’), [8]; and see application for leave to appeal or appeal filed 20 March 2019. -- 3 of 19 -- 4 after the finalisation of this investigation and these proceedings; and Ground Five: The Tribunal incorrectly placed significant and therefore excessive weight upon the precedent value of Hetherington v Assistant Commissioner of Queensland Police Service.4 [7] Mr Andersen argues a further ground of appeal (Ground Six), for which leave to amend the application for leave to appeal or appeal was given at the oral hearing.5 Mr Andersen says Ground Six of the appeal, now set out below, raises a question of law only, and, so, leave to appeal is not required:6 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. 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. In addressing Ground Six, Mr Andersen contends that the Tribunal below impermissibly relied on or took into account facts that went beyond the ambit of the disciplinary allegations presented against him by the Deputy Commissioner.7 Mr Andersen identifies a number of findings made by the Tribunal below that he says went beyond the proper scope of the particulars of the allegations of misconduct.8 Further, Mr Andersen contends that the Tribunal below proceeded (in the review hearing) on the basis that certain ‘aggravating features’ as contended by the Commission (in the review hearing) were facts to be taken into account when imposing a sanction.9 [9] Ground Six of the appeal, in our view, and despite Mr Andersen’s submissions to the contrary, raises a question of mixed fact and law, for which leave to appeal is required. The distinction between questions of law and mixed fact and law is important because if leave is granted in this matter then the appeal proceeds by way of a rehearing with or without additional or fresh evidence subject, of course, to leave being given to rely on the fresh evidence.10 [10] The contentions raised by Mr Andersen in support of Ground Six require a consideration of certain findings of fact made by the Tribunal below where those 4 [2011] QCAT 82. 5 Appeal Tribunal’s decision dated 28 November 2019. 6 Exhibit 1; see also Applicant’s further submissions, [2]. 7 Exhibit 1; see also Applicant’s further submissions, [1]. 8 Applicant’s further submissions, [42]. 9 Ibid, [40]. 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(2) (‘QCAT Act’). -- 4 of 19 -- 5 findings are critical to the Tribunal’s sanction decision. This raises a question of mixed fact and law for which leave to appeal is required. [11] The question of whether leave to appeal should be granted is determined according to established principles, such as: is there a reasonably arguable case of error in the primary decision;11 is there a reasonable prospect that the applicant will obtain substantive relief;12 is leave necessary to correct a substantial injustice to the applicant caused by some error;13 and is 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.14 [12] We are satisfied that Ground Six of the appeal raises a question of general importance about permissible findings of the Tribunal in a disciplinary review proceeding, including any contextual findings, in determining sanction. More importantly, Ground Six raises a question about whether it is open for the Tribunal on review to take into account facts or other relevant circumstances concerning the alleged misconduct that fall outside the particulars of the charge presented against the subject police officer. To the extent that leave to appeal is necessary, leave to appeal should be granted. [13] Mr Andersen also seeks leave to rely upon fresh evidence that was not before the Tribunal below identified as an expert report prepared by Julie Parfitt. Mr Andersen contends that, amongst other things, leave to rely upon Ms Parfitt’s report should be granted because it is relevant to Ground One of the appeal and the financial loss suffered by him as a result of the impugned decision in particular the reduction in paypoints.15 What did the Tribunal below find? [14] The Tribunal’s written Reasons identified the particulars of the one matter of misconduct presented against Mr Andersen as follows: The matter that was the subject of the disciplinary hearing was as follows: 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) Particulars of the matter were provided as follows: 11 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 12 Cachia v Grech [2009] NSWCA 232, [13]. 13 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 14 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578-580. 15 Application for miscellaneous matters (seeking leave to rely upon fresh evidence) filed 23 August 2019; see also Applicant’s submissions filed 12 August 2019. -- 5 of 19 -- 6 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 [15] The Tribunal’s Reasons identified the Commission’s submissions and its position on sanction. Relevantly, the Commission submitted below that the sanction imposed (by the Deputy Commissioner) is inadequate and Mr Andersen should be demoted to the rank of Constable paypoint 1.6 for a period of 12 months with an order made that he be eligible for automatic progression to the next paypoint level or rank until the expiration of that period; and complete the managerial strategy as set out in the Notice of Formal Finding.16 [16] The Tribunal summarised the facts presented by the Commission in the hearing below that it said gave rise to the allegations. The facts presented by the Commission in the hearing below as captured in the Tribunal’s reasons that are now relevant to the contentions raised by Mr Andersen in support of the appeal are now set out below: The commission summarised the facts as follows: On 30 August 2016, the Second Respondent attended a work function at the Crown Hotel in Townsville where he consumed approximately 10 alcoholic beverages. After the Second Respondent left this function he attended the Flinders Street Night Safe Out Precinct where he attended Cactus Jacks. At this location he consumed more alcoholic drinks including at least one alcoholic shot. After leaving Cactus Jacks the Second Respondent attended the Mad Cow Tavern. At this location the Second Respondent: a) Consumed a further 5 to 6 alcoholic beverages; 16 Reasons, [8]. -- 6 of 19 -- 7 b) A security officer, Matthew Blanch (‘Mr Blanch’), was approached by a female patron who advised him (a description of harassment of her, and her friends, by the Second Respondent); c) Mr Blanch approached the Second Respondent and observed the Second Respondent grab the same female patron with his hands who had just approached him. The female patron was observed to push the Second Respondent away; d) Mr Blanch escorted the Second Respondent out of the venue. As he was doing this the Second Respondent had a verbal altercation with another person and pushed a security guard; e) Mr Blanch and two other security officers walked the Second Respondent outside when the Second Respondent began to struggle and called them ‘fuck heads’; …17 [17] The Tribunal referred to Hetherington as ‘providing guidance’ to the correct approach to be taken in the matter. The learned Member said at paragraphs [11] and [12], respectively: The Commission referred to the Tribunal decision in Hetherington v Assistant Commissioner of Queensland Police Service as providing guidance to the correct approach to be taken in this matter. In Hetherington the officer was a Sergeant at paypoint 3.5. The disciplining officer imposed a sanction that Hetherington be demoted to the rank of Senior Constable paypoint 2.8 for a period of 12 months, and not be eligible for automatic progression to the next paypoint level or rank until the expiration of that period. On review, the Tribunal imposed a sanction of demotion to Senior Constable paypoint 2.9 for a period of 12 months.18 [18] The Tribunal summarised the Commission’s submissions made in the hearing below at paragraphs [15] to [20], inclusive, that were about Mr Andersen’s conduct noting, as submitted, that his conduct can, in many ways, be regarded as being more serious than the conduct in Hetherington.19 Relevant to Mr Andersen’s conduct being more serious than Hetherington, the learned Member summarised the Commission’s submissions that included, amongst other things, a submission that Hetherington’s level of violence was less than Mr Andersen’s violence,20 in that Mr Andersen had head-butted, touched, attempted to head-butt and kicked out at least three different people.21 [19] The Tribunal identified Mr Andersen’s submissions at paragraphs [22] to [31], inclusive, and noted that, as submitted by Mr Andersen, the Commission had changed its position between the preliminary statement of issues and the time of filing submissions and that the Commission is seeking a two pay level reduction to a demotion in rank which included a pay level reduction which will cause a detriment 17 Ibid, [9]. 18 Ibid, [11]-[12]. 19 Ibid, [15]. 20 Ibid. 21 Ibid. -- 7 of 19 -- 8 of tens of thousands of dollars.22 Further, Mr Andersen addressed the Tribunal below on the issue of delay (and the effect of delay) that was noted by the Tribunal as being some 16 months from when the conduct occurred and the commencement of the disciplinary proceedings.23 [20] The Tribunal observed Mr Andersen’s exemplary 11-year career up until this matter (that occurred on 30 August 2016)24 as well as Mr Andersen’s submissions about the seriousness of his conduct in the context of distinguishing his matter (and his conduct) from Hetherington.25 Relevantly, Mr Andersen argued in the hearing below that since Hetherington in 2010, there has been a complete policy shift towards police discipline by adopting a restorative approach rather than a punitive approach. The learned Member said (footnotes emitted): It was submitted that the Hetherington decision was handed down in 2010, when the police discipline system was ‘maintaining an archaic and punitive philosophy towards sanctioning officers’ and that since then there have been a ‘complete policy shift towards police discipline by adopting a restorative approach rather than a solely punitive approach’.26 [21] The Tribunal made findings about Mr Andersen’s conduct in paragraphs [32] to [75], inclusive. The Tribunal correctly identified the meaning of ‘misconduct’ as defined in s 1.4 of the Police Service Administrative Act 1990 (Qld); and considered the effect of the sanction imposed by the Deputy Commissioner noting that the managerial strategy might be seen as one that imposed inconvenience and some embarrassment to Mr Andersen but which did not constitute, as stated, a sanction of any significance.27 The Tribunal found that the only effective sanction was the two penalty points.28 [22] The Tribunal acknowledged Mr Andersen’s unblemished record and the fact that he had consumed significant quantities of alcohol on the evening, with a recorded blood alcohol reading of .243%.29 [23] The learned Member found that there are a number of matters of significant concern in Mr Andersen’s behaviour and referred to Mr Andersen as ‘harassing women’ within the tavern which led to complaints to the tavern security, his non-cooperation and physical struggling with security staff and with the police.30 The learned Member said: There are matters of significant concern in the behaviour exhibited by Mr Andersen that evening. The actions of Mr Andersen in harassing women within the tavern, which led to complaints to the tavern security, are of concern themselves. In addition to the harassment complaints, there was non- 22 Ibid, [22]. 23 Ibid, [23], see also [24]. 24 Ibid, [25]. 25 Ibid, [26]. 26 Ibid, [27]. 27 Ibid, [35]. 28 Ibid, [35]. 29 Ibid, [37]. 30 Ibid, [38]. -- 8 of 19 -- 9 cooperation and physical struggling with the security staff, and with police who attended the scene.31 The learned Member observed that, apart from the infringement notice, no charges were brought against Mr Andersen of any form of assault and said that ‘there may have been far greater sanctions than those comprehended by the misconduct proceedings alone’.32 The learned Member said: Apart from the infringement notice, no charges were brought against Mr Andersen of any form of assault in relation to his actions within the tavern and outside, or of resisting police. It is noted in the findings that he was ‘fortunate members of the public choose not to make criminal complaints against you’. There may be questions of evidentiary proof involved, but there has to be a strong suggestion that Mr Andersen could well have been exposed to what may have been far greater sanctions than those comprehended by the misconduct proceedings alone.33 After considering the Commission’s submissions made in the hearing below in paragraph [41], the Tribunal correctly identified its role in the proceeding as being ‘to form its own view’.34 The Tribunal also considered the effect of a reduction in paypoints in the rank of constable, commencing at paypoint 1 and rising to paypoint 6.35 The learned Member said: The sanction sought by the Commission would reduce Mr Andersen to the top paypoint of Constable. It constitutes a reduction of five paypoints, and a reduction in rank. A schedule handed up at the hearing indicates that, as at 1 July 2018, the annual salary of a Senior Constable paypoint 5 was $82,450; that of a Senior Constable paypoint 3 was $78,787; that of a Senior Constable paypoint 1 was $75,281; and that of a Constable paypoint 6 was $73,199. A sanction may constitute a demotion, which results in both a monetary reduction and a reduction of rank; or a monetary reduction within the same rank.36 The learned Member identified a number of similarities between Mr Andersen’s conduct and Hetherington. The Tribunal said that, amongst other things, in each case alcoholism was a relevant fact, and the officer had a very good service record prior to the events.37 The Tribunal distinguished Mr Andersen’s conduct (from Hetherington) and notes certain ‘aggravating factors’ in Hetherington as being that Mr Hetherington produced his police identification to gain access to the hotel and was a sergeant in a supervisory position.38 The learned Member considered how the public would view Mr Andersen’s conduct given his training and standing as a police officer and found that such conduct does reflect adversely upon him (Mr Andersen) and the police service. 31 Ibid, [38]. 32 Ibid, [40]. 33 Ibid. 34 Ibid, [41]. 35 Ibid, [42]. 36 Ibid, [43]-[45]. 37 Ibid, [46]. 38 Ibid, [47]. -- 9 of 19 -- 10 He also considered the financial value of the penalty imposed by the Deputy Commissioner. Relevantly, the learned Member said at [49] to [53], inclusive: Whilst Mr Andersen was off duty, and in plain clothes, his position as a police officer is relevant in consideration of the significance of the events. Mr Andersen did not identify himself as a police officer, or seek to gain benefit from his position, but he was identified by members of the public as a police officer. Constable Armstrong, one of the officers who attended the scene, described the identification: a – Uh, what was Damien doing at that time? When they first grabbed him? b – um, I wasn’t really looking at them. I saw them grab onto his arms and then I sort of looked out cos I could hear people yelling he’s a cop and I didn’t want more people to come into the situation and make it worse. I was sort of more looking out I wasn’t looking at the Sergeant or Constable. There was, there was a lot of people around. I didn’t want the situation to get worse with more people. I consider that the public would view such behaviour by a person, who has the training and standing of a police officer, as being wholly unacceptable; and that such conduct does reflect adversely both upon the individual and upon the police service, particularly where the person is identified at the time as a police officer. The conduct involved being heavily intoxicated in a public place, creating a public nuisance, and engaging in physical struggles with security staff and police. That conduct must be viewed seriously, and must attract an appropriate sanction. The financial sanction that was imposed was two penalty units. The value of a penalty unit has been $130.55 from 1 July 2018. The current value of the financial sanction is therefore $261.10. Whilst I draw distinctions between this matter and Hetherington, the matters have some commonality, and it is notable that the Tribunal in Hetherington totally rejected the suggestion of a fine of two penalty units.39 The Tribunal considered that the original sanction was ‘highly inadequate’ and did not reflect the ‘seriousness of the conduct’.40 The Tribunal also considered delay referring, in its reasons, to ‘a considerable time-span’ in the bringing of the disciplinary proceedings, and in the conduct of the review. The Tribunal found that the effect of delay (‘making 16 months in total’41) is that these matters have been hanging over Mr Andersen’s head for about two and a half years now, and his progression within the QPS to a position as Detective has been ‘put on hold’ by these proceedings.42 The learned Member summarised Mr Andersen’s submissions made in the hearing below relevant to sanction such as the delay in the disciplinary process.43 The learned 39 Ibid, [49]-[53]. 40 Ibid, [54]. 41 Ibid, [58]. 42 Ibid, [56]. 43 Ibid, [59]. -- 10 of 19 -- 11 Member accepted that Mr Andersen was remorseful referring to Mr Andersen, as submitted, as having ‘many sleepless nights and a heightened state of anxiety’ and despite this Mr Andersen has ‘continued to work diligently and commit himself to his duties as a police officer’.44 The learned Member also considered the financial effect of a reduction of six paypoints for one year, as proposed by the Commission, as being a reduction of $9,25145 and loss of income due to delay in Mr Andersen’s progression to be a Detective, which was, as submitted, to be ‘already $3,091’ as at the date of the Tribunal hearing.46 The learned Member noted the QPS’s submission that the QPS is moving to a restorative philosophy as to police discipline, rather than a punitive approach, and accepted that Mr Andersen has experienced embarrassment and upset as a result of his actions, that he has expressed remorse and has given an assurance that the incident was an aberration that will not be repeated.47 The learned Member said that a significant penalty is required and after taking into account ‘mitigating factors’ (exemplary record, remorse, ‘time-span’)48 and being satisfied that Mr Andersen demonstrated his ability to act as a Senior Constable, both before and after the event, found that a four paypoint reduction for one year, without a demotion, would represent a balance that has regard to Hetherington whilst recognising the considerations that distinguish Mr Andresen’s conduct from Hetherington and takes into account mitigating factors.49 The learned Member adopted a formula in imposing sanction intended to avoid a ‘compounding effect’ by reducing the paypoint for a period, and then a return to the paypoint at which the officer would have been.50 The learned Member ultimately found that the decision of the Deputy Commissioner as to sanction is set aside and, by way of a substituted decision, ordered that Mr Andersen be reduced in paypoint from Senior Constable paypoint 5 to paypoint 1 for a period of twelve months to then return to the paypoint at which he would then have been if the reduction had not occurred, subject to industrial arrangements and that he complete the Managerial Strategy as set out in the Notice of Formal Finding dated 19 March 2018.51 Ground 6 – impermissible findings of fact Relevant to this ground of appeal are the particulars of the matter of misconduct presented by the Deputy Commissioner against Mr Andersen.52 Mr Andersen says and we accept that, consistent with s 7.4 of the Police Service Administration Act 1990 (Qld), the starting point for any disciplinary proceeding is the ‘allegation of misconduct’ that is brought against the officer.53 Consistent with common law requirements, reflected in the relevant QPS policy for disciplinary proceedings, the subject officer is to be given written details of each allegation including the particulars 44 Ibid, [59]. 45 Ibid, [61]. 46 Ibid, [62]. 47 Ibid, [63]. 48 Ibid, [64]. 49 Ibid, [64]-[65], [71]. 50 Reasons, [72]. 51 Ibid, [73]. 52 Applicant’s Appeal Book filed 2 September 2019, 3 (‘Appeal Book’). 53 Applicant’s further submissions, [4]. -- 11 of 19 -- 12 relied upon to support the allegations.54 We take guidance from established principles reflected in the High Court decision of Kirk v Industrial Court (NSW):55 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…56 It is non-contentious that the police disciplinary process at first instance involves two- steps in that two separate reviewable decisions as to substantiation of the conduct (the allegation of misconduct) is made by the decision-maker, followed by the sanction decision which decides the discipline or disciplines to be imposed in respect of the substantiated allegations of misconduct.57 Review rights to the Tribunal exist for both of the substantiation decision (the allegation of misconduct) and the sanction decision. Relevantly, the Commission and/or the subject officer may review a ‘reviewable decision’ (i.e. the substantiation decision and/or sanction decision) before the Tribunal. It is trite law that, in determining the review, the Tribunal must conduct a review on the merits to arrive at the correct and preferable decision.58 The Tribunal, standing in the shoes of the decision-maker (in this matter the Deputy Commissioner) is required to conduct a review on the material that was before the Deputy Commissioner, commonly referred to as the ‘section 21 material,’ together with any fresh evidence (if leave of the tribunal is given to a party allowing it to rely upon the fresh evidence).59 The decision-maker has a duty in the review proceeding to assist the Tribunal including by making any relevant submissions about the section 21 material before the Tribunal relevant to the decision the subject of the review.60 The applicant in the review hearing, that is either the Commission and/or the subject officer, is entitled to make submissions about the material before the Tribunal on review relevant to the reviewable decision. In reviewing a sanction decision, the Tribunal is entitled to make necessary findings, having found the allegation of misconduct to be substantiated, about the subject officer’s conduct relevant to sanction. Consistent with established authority in Aldrich v Ross,61 the Tribunal on review may give appropriate weight to the decision-maker’s findings below. The Tribunal has, however, a duty to bring the public perspective to bear if it reaches a different view and must determine the correct and preferable decision.62 In making necessary findings in a disciplinary review proceeding, we rely on Officer JXR v Deputy Commissioner Gollschewski.63 In Officer JXR, the Appeal Tribunal cautions a Tribunal on review in a police disciplinary proceeding to not stray beyond 54 Ibid, [9]-[10]. 55 (2010) 239 CLR 531. 56 Ibid, [26]. 57 Lee v Crime and Corruption Commission [2014] QCATA 326, [59]-[62]. 58 QCAT Act, s 17. 59 Crime and Corruption Act 2001 (Qld), s 219G. See s 21 of the QCAT Act. 60 QCAT Act, s 21. 61 [2001] 2 Qd R 235. 62 Murray v Deputy Commissioner Stewart [2011] QCAT 583. 63 Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55. -- 12 of 19 -- 13 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.64 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…65 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.66 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.67 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’.68 Here, the matter of misconduct found to be substantiated against Mr Andersen contained further and better particulars identified as particulars 1(a), 1(b) and 1(c). In the initial disciplinary hearing before the Deputy Commissioner, Mr Andersen admitted to the conduct contained in particular 1(a) and disputed parts of the alleged conduct contained in particulars 1(b) and 1(c), respectively.69 The Deputy Commissioner subsequently found all of the matters of misconduct to be proven and imposed a sanction. Mr Andersen did not challenge the Deputy Commissioner’s findings on the substantiation of the misconduct.70 The Commission applied to review the Deputy Commissioner’s sanction decision in the Tribunal. The relevant section 21 material before the Tribunal included, amongst other things, the Deputy Commissioner’s finding (‘the reasons document’). The Commission’s submissions summarised the Deputy Commissioner’s findings that it said were relevant to the Tribunal’s review of the sanction decision.71 Relevantly, the Commission, in its submissions in the review hearing, summarised the facts that it said were relevant to Mr Andersen’s conduct and sanction. The Commission also identified a number of ‘aggravating features’ of Mr Andersen’s conduct.72 In addressing Ground Six of the appeal, Mr Andersen contends that the Tribunal below made a number of impermissible findings, including that he (Mr Andersen) physically assaulted or harassed one or more female persons prior to being escorted 64 Ibid, [117]. 65 Ibid. 66 See R v De Simoni 147 CLR 383 at 389 per Gibbs CJ. 67 Ibid. 68 O’Sullivan v Deputy Commissioner Brett Pointing [2016] QCAT 510, [41]. 69 See Mr Andersen’s submissions in Appeal Book at 19. 70 See Mr Andersen’s submissions in Appeal Book at 213. 71 See Commission’s submissions in Appeal Book at 203. 72 See Reasons, [9] and [10]. -- 13 of 19 -- 14 out of the licensed premises.73 Further, Mr Andersen contends that on a fair reading of the Tribunal’s reasons, the learned Member proceeded on the basis that certain facts, as summarised by the Commission’s submissions, were facts to be taken into account when imposing a disciplinary sanction on him.74 Further to that, Mr Andersen says the Tribunal then took those facts into account when imposing a disciplinary sanction on him.75 Relevantly, Mr Andersen says that the Tribunal made findings as set out in the Tribunal’s reasons as follows:76 (a) The Tribunal referred to Mr Andersen’s ‘actions… harassing women within the tavern’ as being ‘of concern themselves’ (paragraph [38] of the reasons); (b) The Tribunal referred to ‘non-cooperation’ and ‘physical struggling’ with security staff (paragraph [38] of the reasons); (c) The Tribunal said that ‘no charges…of any form of assault’ were brought ‘in relation to his actions within the tavern and outside’ and referred to ‘a strong suggestion that Mr Andersen could well have been exposed to…far greater sanction’ (paragraph [40] of the reasons), and (d) The Tribunal referred to Mr Andersen as having been ‘identified by members of the public as a police officer’ (paragraph [49] of the reasons) and went on to say that Mr Andersen’s conduct reflected adversely on him and the police service ‘particularly where the person is identified at the time as a police officer’ (paragraph [50] of the reasons). Mr Andersen contends that the Tribunal made a number of findings that are beyond the proper scope of the allegation.77 Relevantly, Mr Andersen submits that the Tribunal impermissibly took into account the following facts:78 (a) That Mr Andersen physically assaulted or harassed one or more female patrons inside the licensed premises; (b) That Mr Andersen physically assaulted security officers by way of a push and a head-butt; and (c) That members of the public identified Mr Andersen as a police officer when he was being arrested. On the other hand the Commission, in responding to the contentions raised in Ground Six, disputes that there is an error in the Tribunal’s findings predominantly on the basis that, as submitted, the parties are expected to act in their own interests and make their own case fully in the first hearing.79 Further, the Commission says that Mr Andersen had every opportunity to challenge the facts which he now alleges goes 73 Applicant’s further submissions, [37]-[42]. 74 Ibid, [40]. 75 Ibid. 76 Ibid. 77 Ibid, [41]. 78 Ibid. 79 First respondent’s further submissions filed 3 December 2019, [5] (‘Commission’s further submissions’). -- 14 of 19 -- 15 beyond the particulars of the allegation of misconduct when the matter was before the Deputy Commissioner but chose not to do so.80 Ground Six – impermissible findings of harassment Turning firstly to the Tribunal’s findings at paragraph [38] of the reasons, we accept Mr Andersen’s submission in support of Ground Six that on a fair reading of the reasons the Tribunal below found that Mr Andersen harassed one or more female patrons. Relevantly, the Tribunal found that Mr Andersen’s ‘actions… in harassing women within the tavern’ as being ‘of concern themselves’, in determining sanction.81 The question that now arises on appeal is whether the Tribunal’s findings in relation to Mr Andersen ‘harassing women within the tavern’ as being ‘of concern themselves’, are impermissible findings because they 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 charge. The Commission, in responding to Ground Six of the appeal, refers us to relevant material that it says was before the Tribunal below including Mr Andersen’s submissions filed in the review proceeding,82 the investigation report relied on by the Deputy Commissioner (contained in the section 21 material)83 and the Deputy Commissioner’s reasons document.84 The Commission submits that Mr Andersen accepted the Deputy Commissioner’s findings and refers to Mr Andersen’s submissions made in the hearing below during which he (Mr Andersen) submitted that, ‘[t]he particular of the charge and factual findings by the QPS are not in dispute…’.85 The Commission submits that the investigation report contains information that Mr Andersen ‘physically assaulted a security officer by head-butting the security officer’.86 Further, the Commission says that the Deputy Commissioner’s reasons document contains the information that Mr Andersen, as stated in the reasons document, ‘physically assaulted or harassed one or more female persons prior to being escorted out of the venue’.87 More importantly, the Commission submits that no injustice has been caused to Mr Andersen by reason of the Tribunal’s finding.88 We accept the Commission’s submission that the Deputy’s Commissioner’s reasons document contains information relevant to Mr Andersen’s conduct inside the licensed premises and more specifically, in relation to particular 1(a) of the one matter of misconduct, that Mr Andersen ‘behaved in a disorderly manner’.89 We also accept the Commission’s submission that the inclusion of the words ‘disorderly manner’ referred to in particular 1(a) enables a wide range of conduct to be included as discussed in a number of decisions referred to in the Commission’s written submissions. For 80 Ibid, [5]. 81 Reasons, [38]. 82 Appeal Book, 211. 83 Ibid, 85. 84 Ibid, 6. 85 Commission’s further submissions, [13]; see also Appeal Book, 213. 86 Commission’s further submissions, [11]; Appeal Book, 99. 87 Commission’s further submissions, [15]. 88 Ibid, [19]. 89 Ibid, [23]. -- 15 of 19 -- 16 example, in Andrew v Rockley,90 the District Court held that ‘disorderly behaviour may be described as that which is likely to cause a disturbance or to annoy or insult others sufficiently deeply or seriously warrant the interference of the criminal law’.91 We also accept the Commission’s submission that the Tribunal below 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 Mr Andersen to be evicted from the licensed premises by security officers.92 Such findings, however, that were open to the Tribunal, relevant to the sanction decision, may not stray outside the particulars of the misconduct charge and substantiated misconduct ‘so as to make the conduct more serious than the charge’.93 The Deputy Commissioner’s findings acknowledged that Mr Andersen ‘accepted’ matter 1(a). Further, the Deputy Commissioner in his findings then states that he considers the evidence supports substantiation of the matter. He makes what he calls ‘observations’ about the evidence before him about Mr Andersen’s conduct in the licensed premises, and subsequently states that he accepts the evidence of certain persons. He discusses the evidence of the security officer, Matthew Blanch, who stated, as reflected in the Deputy Commissioner’s reasons document, that he was approached by a female who addressed him about Mr Andersen’s behaviour. As reflected in the Deputy Commissioner’s reasons document, Mr Blanch said that he observed Mr Andersen to ‘grab on to the same female with [his] hands’. The relevant extract from the Deputy Commissioner’s reasons document is now set out as follows: Blanch stated during the 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 (sic) 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 push you away. He walked over to you to speak to 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…94 There is patently no particular of matter 1(a) about harassment of female patrons by Mr Andersen. Further, on a fair reading of the Deputy Commissioner’s reasons document, there is no specific reference to or finding that Mr Andersen ‘harassed’ a female patron or was ‘harassing females’ in the licensed premises. Further, there is no specific reference, as contended by the Commission, in the investigation report of ‘harassment’ of females by Mr Andersen. The investigation report under the heading ‘findings’ refers to security footage from within the licensed premises and the evidence of the security officer that a female patron complained that Mr Andersen was, as stated, ‘making inappropriate and unwelcome advances towards her and her female friends’.95 We accept that, as pointed out by the Commission in its written submissions, Mr Andersen told the QPS during the police disciplinary interview, when questioned about his actions on the night of the incident, that he did not remember, in his own 90 [2008] QDC 104; see also Commission’s further submissions, [23]. 91 Andrew v Rockley [2008] QDC 104, per Rackemann DCJ. 92 Commission’s further submissions, [24]. 93 See Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55, [117]. 94 Deputy Commissioner’s findings and reasons in Appeal Book at 9-10. 95 Appeal Book, 98. -- 16 of 19 -- 17 words, ‘things’ (meaning the incident). The particulars of the misconduct allegation did not, however, allege that he (Mr Andersen) ‘harassed’ women. Nor could it be said that Mr Andersen, in accepting matter 1(a), admitted harassing female patrons or that the Deputy Commissioner found that he did so. The evidence before the Tribunal below could only amount to a finding that Mr Andersen behaved in a disorderly manner including, as detailed in the further and better particulars in 1(a), that ‘…[his] behaviour was of such a nature that [he was] evicted from the licensed premises by security officers’. It was of course open to the Tribunal below to make contextual findings about Mr Andersen’s conduct such as, for example, in referring to the evidence of the security officer about a complaint from a female patron (as reflected in the investigation report) that Mr Andersen was making inappropriate and unwelcome advances towards female patrons inside the licensed premises. On a fair reading of the Tribunal’s reasons the learned Member, in assessing the evidence relevant to sanction and the findings made by the Deputy Commissioner, accepted the Commission’s submissions made in the hearing below. The Commission’s submissions included references to Mr Andersen’s actions during the incident such as, as contended by the Commission (in the review), ‘a description of harassment’ of female patrons.96 Further, the Tribunal below accepted the Commission’s submissions that summarised ‘aggravating features’ of Mr Andersen’s conduct as including ‘multiple assaults’ on ‘multiple people’.97 The Commission’s summary of the facts, that included findings of ‘harassment’ of female patrons and ‘aggravating features’ that included findings of ‘multiple assaults’, were not factual matters particularised in the further and better particulars of the allegation of misconduct to the extent that the particulars (of the allegation) refer only to Mr Andersen’s behaviour as being of ‘such a nature’ that he was, amongst other things, evicted from the licensed premises. 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. More importantly, Mr Andersen was not given an opportunity to respond to the conduct that was considered by the Tribunal to be a matter of concern and, on a fair reading of the Tribunal’s reasons, that has undoubtedly influenced the sanction imposed. Ground Six – impermissible findings of assault and off duty conduct as a police officer We accept Mr Andersen’s submission that the Tribunal below found in paragraph [38] of the Reasons that there was ‘non-cooperation and physical struggling’ by Mr Andersen with security officers and with police who attended the scene. Further, as reflected in paragraph [40] of the Reasons, the Tribunal found that, apart from the infringement notice, no charges were brought against Mr Andersen of ‘any form of assault’ in relation to his actions within the tavern and outside, or of resisting police, and that he (Mr Andersen) could well have been exposed to ‘far greater sanctions…’. We accept Mr Andersen’s submission that the allegation of misconduct contains no reference to ‘assault’ against security officers and that the Tribunal made findings of 96 Reasons, [9(b)]. 97 Ibid, [10(b)]. -- 17 of 19 -- 18 ‘assault’ about Mr Andersen’s conduct relevant to sanction in determining that the conduct, as found, could well have exposed Mr Andersen to far greater sanction. Although, as discussed above, we accept the Commission’s contention in response that it was open to the Tribunal below to take into account all of Mr Andersen’s conduct including that, as reflected in the Deputy Commissioner’s reasons document, Mr Andersen ‘head-butted’ one of the security officers and used abusive language during the incident, 98 such conduct forms part of contextual findings. To the extent that the Tribunal made findings of ‘assault’ in referring to Mr Andersen’s actions with respect to the incident as being relevant in determining sanction, it is an impermissible finding that went beyond the ambit of the disciplinary allegations. Further, Mr Andersen was not given an opportunity to respond to the conduct as found by the Tribunal below. Further, despite the allegation of misconduct referring to Mr Andersen’s conduct as being ‘off duty’, the Tribunal below found at paragraphs [49] and [50] of the Reasons, respectively, that Mr Andersen’s position as a police officer ‘is relevant’ and his ‘behaviour’ does ‘reflect adversely’ upon him and the police service. We accept that there was evidence before the Tribunal below that members of the public identified Mr Andersen as a police officer. This was evidence that the Tribunal was entitled to take into account as a contextual finding in determining sanction. On a fair reading of the Tribunal’s reasons, the learned Member found that Mr Andersen was identified as a police officer and this finding influenced the sanction imposed despite the allegation of misconduct referring to ‘off duty conduct’. It was not the case here that Mr Andersen was charged with and purported to act, in committing an act of misconduct, in his capacity as a police officer or to use his position as a police officer to his advantage. The charge in effect acknowledged his off-duty status at the time of the events. To the extent that the Tribunal found that Mr Andersen’s position as a police officer is relevant in determining sanction, it made an impermissible finding that went beyond the ambit of the disciplinary charge. Further, Mr Andersen was not given an opportunity to respond to the conduct as found by the Tribunal below. Ground Six of the appeal is allowed. Disposition of the application for leave to appeal or appeal [63] We have found that the Tribunal below made findings about Mr Andersen’s conduct that fall outside the allegations of misconduct. We accept that as a consequence, Mr Andersen 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 Mr Andersen if leave to appeal was not granted. Leave to appeal should be granted. [64] In proceeding pursuant to s 147(2) of the QCAT Act we must rehear the review. We must consider each of the grounds of appeal. In proceeding with a rehearing, we intend to deal with the issues that arise from the remaining grounds of appeal. 99 [65] However, Mr Andersen requested the opportunity to make further submissions if leave to appeal is granted. That course was not opposed. Accordingly, we consider it 98 Commission’s further submissions, [29]-[31]; see also Deputy Commissioner’s reasons in Appeal Book at 5. 99 John Urquhart t/as Hart Renovations v Partington [2016] QCA 87, [44]-[45], [82]-[83]; Harrison & Anor v Meehan [2017] QCA 315, [18]-[19]. -- 18 of 19 -- 19 appropriate to make directions for the parties to provide their further written submissions and for the further hearing of the proceeding. Application for leave to rely upon fresh evidence [66] In the proceeding, Mr Andersen seeks leave to rely upon fresh evidence. It is convenient to deal with that application here. [67] It is settled law that leave to adduce fresh or new evidence will involve the exercise of a broad discretion having regard to established principles as identified in Ellis & Anor v Queensland Building Services Authority:100 …New evidence will ordinarily only be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and, the evidence is apparently credible, although not necessarily incontrovertible. Mr Andersen has failed to convince us that leave to rely on fresh evidence in the appeal proceeding should be given. The fresh evidence sought to be adduced is relevant to the financial detriment caused to Mr Andersen by reason of any deduction in paypoint. It is readily apparent from the transcript of the hearing below that the financial impact caused to Mr Andersen by reason of any deduction in paypoint was a live issue in the hearing below. Mr Andersen did not seek to obtain and rely upon any material relevant to financial detriment caused, subject, of course, to leave being given to rely upon the material. Mr Andersen has failed to provide a satisfactory explanation as to why the report could not have been obtained at the time of the proceeding below. Further, Mr Andersen did not seek leave to rely on the report that is now fresh or new evidence, in the proceeding below. Leave to rely upon fresh evidence should be refused. Orders We make orders granting leave to appeal and refusing the application of Mr Andersen to rely upon fresh evidence. We make directions for the filing of further written submissions by the parties. Once the submissions have been filed, it appears that the rehearing could then proceed on the papers without a further oral hearing. However, a party may request an oral hearing. We make directions to this effect. 100 [2010] QCATA 93, 3 [7]; see also Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. -- 19 of 19 --