Crime and Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510

CITATION: Crime & Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 PARTIES: Crime and Corruption Commission (Applicant) v Deputy Commissioner Brett Pointing Senior Constable Michael O’Sullivan (Respondents) PARTIES: Senior Constable O’Sullivan (Applicant) v Deputy Commissioner Brett Pointing (Respondent) APPLICATION NUMBER: OCR108-15; OCR112-15 MATTER TYPE: Occupational regulation matters HEARING DATE: 20 May 2016 HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 23 December 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Deputy Commissioner Brett Pointing on sanction is set aside; 2. (i) Senior Constable Michael O’Sullivan is demoted from pay-point 2.4 to 2.1 for the period of twelve months from 1 July 2015; (ii) the demotion is suspended on the condition that: (a) he does not commit any acts of misconduct for the period of one year from 1 July 2015; (b) he performs 50 hours of community service within the one year period from 1 July 2015; (c) he completes the CAP book titled ‘Arrests—Edition 3 Version 1’ (QCP007_04) within three months of -- 1 of 29 -- 2 1 July 2015; (d) he meets with a Human Services Officer (HSO) once each month for six months from 1 July 2015 or such longer period as is recommended by the HSO. 3. It is declared that the actions already taken by Senior Constable Michael O’Sullivan to comply with the conditions imposed by Deputy Commissioner Brett Pointing in similar terms to those specified in order 2(ii) (b), (c) and (d) above are taken to comply with these orders. 4. (i) The non-publication order dated 20 May 2016 is vacated; (ii) Publication of the names and identifying particulars of all third parties who are not police officers is prohibited; (iii) The reasons for decision may be published only in a format which de- identifies third parties who are not police officers. CATCHWORDS: POLICE – EXTERNAL OVERSIGHT – Procedure – Where findings of fact made by decision-maker in deciding substantiation – whether additional findings of fact may be made on review as to the context – whether factual allegations extend beyond the ambit of the disciplinary charge POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – Whether sanction imposed for misconduct reflects the seriousness of the conduct – whether sanction imposed is excessive in the circumstances Crime and Corruption Act 2001 (Qld), s 219A, s 219G, s 219H, s 219L Police Service Administration Act 1990 (Qld), s 7.4 Police Service (Discipline) Regulations 1990, reg 3, reg 5, reg 9, reg 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20 -- 2 of 29 -- 3 Aldrich v Ross [2001] 2 Qd R 235 Crime and Misconduct Commission v Acting Deputy Commissioner Barron and Alexander [2014] QCAT 241 Crime & Misconduct Commission v Deputy Commissioner & Chapman [2010] QCAT 564 Crime & Misconduct Commission v McLennan & Ors [2008] QSC 23 Hardcastle v Commissioner of Police (1984) 53 ALR 593 Lee v Crime & Corruption Commission [2014] QCATA 326 Legal Services Commissioner v Madden (2009) 1 Qd R 149 McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 Police Service Board v Morris (1985) 156 CLR 397 Queensland Police Service v Compton (No 2) [2011] QCATA 246 R v D [1996] 1 Qd R 363 R v De Simoni (1981) 147 CLR 383 Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590 Wheeler v Assistant Commissioner Paul Wilson [2013] QCAT 519 Criminal Justice Commission v Assistant Commissioner Scanlan and Saez, Misconduct Tribunal Queensland, TA6/1998, 4 September 1998, Senior Member Long Mitchell v Assistant Commissioner Barnham, Misconduct Tribunal Queensland, 12/2002, 2 May 2003, Senior Member McCarthy REPRESENTATIVES: APPLICANT: Crime and Corruption Commission represented by Mr D Lynch QC of Counsel, instructed by the Official Solicitor for the Crime and Corruption Commission FIRST RESPONDENT: SECOND RESPONDENT: Senior Constable Michael O’Sullivan represented by Mr M Black of Counsel, instructed by Gilshenan & Luton Deputy Commissioner Brett Pointing represented by Mr M Nicholson of Counsel, instructed by Public Safety Business Agency REASONS FOR DECISION -- 3 of 29 -- 4 [1] Mr O’Sullivan is a Senior Constable in the Queensland Police Service. Deputy Commissioner Brett Pointing heard a disciplinary charge against Mr O’Sullivan. He found the disciplinary charge substantiated. He made a finding of misconduct. [2] The charge is as follows:1 Matter One That on 4 January 2014 at Brisbane your conduct was improper in that you: a) inappropriately used force against Mr GTB; b) failed to treat Mr GTB with dignity and respect; c) acted in a manner which reflected adversely upon the reputation of the Queensland Police Service … Further and better particulars Investigations have identified that:  on 4 January 2014 at about 10.30am you were off duty and followed a vehicle driven by Mr GTB into the Shell Deagon service station;  you approached Mr GTB and spoke to him in an aggressive and derogatory manner;  you applied force to Mr GTB’s arm, pushing him into a petrol bowser and causing him to fall to the ground;  during the incident you identified yourself as a police officer and when told that the police had been called replied, ‘I am the fucking police’. [3] Mr O’Sullivan admitted the alleged the misconduct and each of the alleged particulars, except that he denied that he said ‘I am the fucking police’. [4] Deputy Commissioner Pointing found the other allegations, but not the allegation denied by Mr O’Sullivan, were substantiated. In doing so, he considered, Mr O’Sullivan’s admissions aside, that the evidence supported substantiation. He was satisfied that while Mr O’Sullivan was waiting to perform a U-turn, he saw a station wagon, which was driving towards him in the opposite direction, perform what he considered to be a dangerous overtaking manoeuvre. As a result, he was forced to brake to avoid a collision. Mr O’Sullivan said he was shaken by these events. The Deputy Commissioner accepted that Mr O’Sullivan then continued on to the service station to buy fuel, where he observed the station wagon parked next to a bowser. He then spoke with the driver, Mr GTB, who was standing next to his vehicle. 1 In view of the non-publication order, which protects the identity of persons other than police officers, all other names have been de-identified in these reasons, even when the name/s appear/s in what is otherwise a quote, as here, where the disciplinary charge is set out in full. -- 4 of 29 -- 5 [5] The Deputy Commissioner acknowledges Mr GTB’s comment that Mr O’Sullivan’s words to him were ‘a mouthful of abuse’.2 The Deputy Commissioner accepted that Mr O’Sullivan was in a heightened emotional state as a result of the roadway incident, and that Mr GTB’s dismissive attitude appeared to have an aggravating effect. He accepted that Mr O’Sullivan identified himself as a police officer and ‘when Mr GTB turned towards the petrol bowser you grabbed his arm and pushed him into the bowser’.3 There was a ‘short struggle’,4 which ended with Mr GTB lying on the ground behind his vehicle. [6] The Deputy Commissioner notes Mr O’Sullivan’s statement that he was attempting to arrest Mr GTB, although he did not verbalise the intention. He observes that ‘it is unclear what you were going to arrest Mr GTB for, or what authority you were relying on to commence this action.’5 He found the ‘use of force both excessive and unnecessary.’6 He further observed that some witnesses were alarmed by Mr O’Sullivan’s actions and that witness accounts gave the impression that he was the instigator, and was aggressive and abusive.7 He was satisfied that Mr O’Sullivan had failed to treat Mr GTB ‘with dignity and respect’ and that the ‘behaviour reflected adversely on the reputation of the Service.’8 [7] The Deputy Commissioner imposed a sanction on Mr O’Sullivan. He demoted Senior Constable O’Sullivan in rank from Senior Constable pay point 4 to Constable pay point 5, but suspended the demotion and pay reduction on conditions that Mr O’Sullivan:  … not commit any acts of misconduct for a period of two years from the date this sanction is imposed;  perform 50 hours of community service in the next 12 months;  complete the CAP book titled ‘Arrests – Edition 3 Version 1’ (QCP007_04) within the next 3 months; and  meet with Human Services Officer (HSO) once a month for the next six months or such longer period that is recommended by the HSO.9 [8] At the time of the QCAT hearing, Mr O’Sullivan had completed the 50 hours community service and the CAP book requirements. He had also been meeting monthly with a HSO. The applications for review 2 Exhibit 6, p 657, (wherein the Deputy Commissioner refers to the transcript of the interview with Mr GTB, which appears at p. 51). 3 Exhibit 6, p 657. 4 Exhibit 6, p 657. 5 Exhibit 6, p 657-658. 6 Exhibit 6, p 658. 7 Exhibit 6, p. 658. 8 Exhibit 6, p. 658. 9 Exhibit 6, p. 665. -- 5 of 29 -- 6 [9] The Crime and Corruption Commission (CCC) and Mr O’Sullivan both filed applications in the Tribunal to review the Deputy Commissioner’s decision in respect of sanction only. [10] In essence, the CCC reviews the sanction contending that the sanction does not reflect the seriousness of the conduct. Mr O’Sullivan reviews the sanction essentially on the basis that it is excessive in the circumstances. However, both the CCC and Mr O’Sullivan submit that the Tribunal should make additional findings of fact in determining sanction. They each contend for various alleged findings of fact, as well as agreeing on some additional relevant facts. The Tribunal review process [11] Sections 219G and 219H of the Crime and Corruption Act 2001 (Qld) (CCC Act) and ss 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provide that the purpose of the Tribunal’s review is to produce the correct and preferable decision on the evidence (that was before the decision-maker and any new evidence, allowed by leave of the Tribunal).10 If the Tribunal has the same view of the facts and inferences, it may be appropriate to give due respect to the views of the decision-maker as to what is required for internal police discipline.11 However, the Tribunal must reach its own decision on the review. It brings the public perspective to bear on the disciplinary process.12 The CCC Act includes specific power for QCAT to suspend a sanction if it considers it appropriate to do so in the circumstances.13 [12] The purpose of police disciplinary proceedings in Queensland encompasses deterrence, protection of the public,14 maintenance of proper standards,15 and promoting and maintaining public confidence in the police service.16 The sanction imposed must signify the disapproval with which the conduct is viewed.17 It plays a role in specific (in respect of the officer concerned) and general (in respect of other officers) deterrence.18 [13] As the High Court has said, the effectiveness of police in protecting the public relies upon public confidence in the integrity of its members, and 10 CCC Act, s 219H(3). 11 Aldrich v Ross [2001] 2 Qd R 235, at 257-258, per Thomas J. 12 Ibid. See also, Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590 at [15]. 13 CCC Act, s 219L. 14 Aldrich v Ross [2001] 2 Qd R 235, 247; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3. 15 Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597; see also CCC Act s 219A and Police Service (Discipline) Regulations 1990, reg 3. 16 Aldrich v Ross [2001] 2 Qd R 235, 247. 17 Police Service Board v Morris (1985) 156 CLR 397; Queensland Police Service v Compton (No 2) [2011] QCATA 246, [25]. 18 Ibid. -- 6 of 29 -- 7 internal discipline is the primary means of ensuring individuals do not jeopardise public confidence.19 The joint statement of the parties [14] The parties filed a joint statement.20 It specifies agreed facts, facts in issue and issues for determination as agreed between the parties. The joint statement sets the context for their submissions. Agreed facts [15] The joint statement sets out agreed facts as between the parties. I am satisfied that the evidence supports them and make findings to this effect, as follows:21 11.1. At about 10:30am on Saturday 4 January 2014, Senior Constable O’Sullivan was off-duty and was driving his personal vehicle along Depot Road, Deagon. 11.2. CCTV footage from the Shell Deagon service station shows a vehicle driven by Mr GTB entering the service station at 10:30:05. Approximately 25 seconds later (10:30:30), the vehicle driven by Senior Constable O’Sullivan vehicle is shown entering the service station [sic]. 11.3. Upon entering the service station, Senior Constable O’Sullivan pulled his vehicle in behind Mr GTB’s vehicle, exited the vehicle and approached Mr GTB who by that stage was standing next to his vehicle. 11.4. Senior Constable O’Sullivan confronted Mr GTB and alleged that Mr GTB had been involved in a driving incident moments beforehand. Mr GTB denied any wrongdoing and an argument ensued between the pair, with both parties using derogatory language. 11.5. The argument lasted approximately 10 seconds before there was physical contact between Senior Constable O’Sullivan and Mr GTB. 11.6. Senior Constable O’Sullivan applied force to Mr GTB’s arm, pushing him into a petrol bowser. Mr GTB was then on the ground. 11.7. At some point between the beginning of the argument between Senior Constable O’Sullivan and Mr GTB, and Mr GTB being on the ground: 11.7.1 Senior Constable O’Sullivan identified himself as a police officer; 11.7.2 Mr GTB was incontinent of urine. 11.8. A number of other people in and at the service station witnessed the incident. At least one witness called the police. Both Senior 19 Police Service Board v Morris (1985) 156 CLR 397, 412. 20 Exhibit 2. 21 Exhibit 2, para 11 but note as per Footnote 1. -- 7 of 29 -- 8 Constable O’Sullivan and Mr GTB’s carer, Ms BTN, also called the police. 11.9. Immediately following the incident, Senior Constable O’Sullivan and Mr GTB continued to exchange words, some of which was captured on recording devices held by Senior Constable O’Sullivan (mobile phone) and Mr GTB (dash cam). 11.10. A short time after the incident, the police attended the service station and spoke with Senior Constable O’Sullivan, Mr GTB, Ms BTN and a number of other witnesses. 11.11. An ambulance also attended the service station, however Mr GTB did not require hospitalisation. Facts in issue [16] The joint statement also specifies facts in issue, as alleged by the CCC and Mr O’Sullivan. Facts alleged by the CCC [17] The CCC alleges additional facts:22 12.1. Senior Constable O’Sullivan entered the service station at speed, pulling his vehicle in closely behind Mr GTB’s vehicle; 12.2. Senior Constable O’Sullivan initiated the physical contact between he and Mr GTB by applying force to Mr GTB’s arm, which caused Mr GTB’s head to strike a petrol bowser before being brought to the ground by Senior Constable O’Sullivan; 12.3. As the force was applied to Mr GTB, Mr GTB told Senior Constable O’Sullivan that he was a disability pensioner; 12.4. At no time did Senior Constable O’Sullivan tell Mr GTB that he was under arrest; and 12.5. The incident was witnessed by a number of people, including Mr GTB’s children and an onlooker who called for someone to call the police. [18] The CCC submits that these additional alleged facts go to the objective seriousness of the misconduct and that the evidence supports findings of facts as alleged. Its written submissions23 go further than these alleged facts. They include submissions to the effect that:  In entering the service station at speed, Mr O’Sullivan’s ‘primary intention’ was to confront Mr GTB;24  The summary of events of the Deputy Commissioner reflects Mr O’Sullivan’s version, and does not adequately take into account the evidence of Mr GTB and other witnesses or the ‘illegal, aggressive, violent and inappropriate nature’25 of his conduct 22 Exhibit 2, para 12 but note as per Footnote 1. 23 Submissions of the CCC filed 1 February 2016. 24 Ibid, paragraph 8. 25 Ibid, paragraphs 10-12, at 12. -- 8 of 29 -- 9 (including not identifying himself as a police officer before the take down;26 and throwing Mr GTB to the ground even though Mr GTB had told Mr O’Sullivan that he was a disability pensioner27) during the purported arrest and take down;28 and  No mitigation should be attributed to Mr O’Sullivan accepting the misconduct against him because of his ‘false and self-serving’ statements immediately following the incident.29 Facts alleged by Mr O’Sullivan [19] Mr O’Sullivan also alleges additional facts as follows:30 13.1. Prior to attending the service station, as he was waiting to perform a U-turn on Depot Road, Senior Constable O’Sullivan saw a blue Falcon station wagon driving towards him in the opposite direction. The Falcon station wagon performed a dangerous overtaking manoeuvre forcing him to brake to avoid a collision; 13.2. The driving incident caused Senior Constable O’Sullivan to feel his safety was threatened and left him in a shaken and agitated state; 13.3. When confronted by Senior Constable O’Sullivan, Mr GTB spoke in an aggressive manner, used derogatory language and said words to the effect of “we’ll smash you”; 13.4. Mr GTB did not tell Senior Constable O’Sullivan that he was a disability pensioner until after Senior Constable O’Sullivan applied force; 13.5. Senior Constable O’Sullivan informed Mr GTB that he was under arrest sometime after force was applied; 13.6. Senior Constable O’Sullivan recognised that some mental health issues may have been impacting on his behaviour and in the weeks following the incident took it upon himself to seek assistance, including attending on a psychiatrist and psychologist; 13.7. Senior Constable O’Sullivan had been under considerable stress in the lead up to the incident on 4 January 2014 and at that time was suffering from an adjustment disorder with depression and anxiety symptoms. These issues contributed to Senior Constable O’Sullivan’s poor conduct in relation to Mr GTB; 13.8. Senior Constable O’Sullivan has demonstrated good conduct and work performance both before and after the incident the subject of the disciplinary charge; 13.9. Senior Constable O’Sullivan is supported by a number of positive references, and is regarded as a competent and committed police officer by many of his peers; 13.10. Senior Constable O’Sullivan has demonstrated insight into the situation, and is regretful and remorseful for his actions; 26 Ibid, paragraphs 11.1. 27 Ibid, paragraph 11.2 and 11.3. 28 Ibid, paragraphs 10-12. 29 Ibid, paragraphs 13-17. 30 Exhibit 2, paragraph 13 but note as per Footnote 1. -- 9 of 29 -- 10 13.11. Senior Constable O’Sullivan has not previously been the subject of a substantiated disciplinary matter; and 13.12. Since the imposition of Deputy Commissioner Pointing’s Sanction, Senior Constable O’Sullivan has: 13.12.1. Commenced the 50 hours community service imposed upon him; 13.12.2. Completed the CAP book titled “Arrests – Edition 3 Version 1’(QCP007_004); 13.12.3. Been undertaking meetings with Human Services Officer one a month as required. Issues for determination [20] The joint statement also specifies two issues for determination. In this section, for convenience, I have supplemented the matters raised in the joint statement with the parties’ submissions. 1. What is the appropriate sanction [21] This is the ultimate question in the review. It is dealt with later in these reasons for decision. 2. Was the suspended sanction made contrary to the Police Service (Discipline) Regulations 1990? [22] The CCC raises the question of whether the Deputy Commissioner had power to suspend the sanction imposed under regulation 5 of the Police Service (Discipline) Regulations 1990 (Qld) (Police Discipline Regulations). The Deputy Commissioner submits that he has power to suspend under regulation 5. [23] However, the CCC acknowledged at the hearing (as did the other parties) that because the Tribunal has specific power under the CCC Act to impose a suspension in a disciplinary review proceeding, this question does not need to be decided by me. [24] That said, I make some observations about suspension by the Deputy Commissioner. [25] Section 7.4(2) of the Police Service Administration Act 1990 (Qld) (PSA Act or PSAA) provides that an officer is liable for disciplinary action for conduct that a prescribed officer considers to be misconduct or breach of discipline31 on grounds prescribed by the regulations. ‘Prescribed officer’ is defined in PSA Act s 7.4(1), to mean ‘an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.’ Section 7.4(3) of the PSA Act provides that, ‘Without limiting the range of disciplines that may be imposed’, a prescribed officer may impose disciplinary action including dismissal; demotion; reprimand, and reduction in salary. 31 ‘Misconduct’ and ‘breach of discipline’ are both defined in the PSA Act, s 1.4. -- 10 of 29 -- 11 [26] The Police Discipline Regulations then provide for the disciplinary action or disciplines that may be imposed by prescribed officers of various ranks,32 and the grounds for disciplinary action.33 Regulation 5 provides that the commissioner or a deputy commissioner ‘may order that the officer be disciplined in a manner that appears to the commissioner or deputy commissioner to be warranted’. However, other prescribed officers may exercise only specified types of those disciplines provided for in regulation 10: see regulations 6-8. The lower the rank of the prescribed officer, the less serious nature of the disciplines that may be imposed. [27] Regulation 10 provides that ’Subject to regulations 11 and 12 (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3) of the Act or regulation 5),’ disciplinary sanctions that may be imposed are as set out in (a) to (f). Regulation 11 provides that a superior officer’s right to chastise or correct a subordinate officer’s performance is unaffected by the regulations. Regulation 12 provides that where a prescribed officer imposes a disciplinary sanction ‘under these regulations,’ the officer may suspend the sanction subject to the disciplined officer agreeing to perform community service or undertake relevant counselling or program designed to rehabilitate, as specified, by the prescribed officer.34 If the agreed acts are performed successfully, the disciplinary sanction is rescinded and ‘it is to be taken that the sanction was never imposed.’ 35 If it is not so completed, the disciplinary action is to be implemented.36 [28] There are obiter comments of the Supreme Court of Queensland and the QCAT Appeals Tribunal which take apparently different views about whether regulation 5 is subject to regulation 12.37 [29] In considering the disciplinary scheme for police officers, I observe, as Hon JB Thomas AM QC, Judicial Member, sitting as the Appeal Tribunal said in Lee v Crime & Corruption Commission & Anor (Lee): 38 [71] The PSAA provides no more than a skeleton for a system. Its procedures and methodology have been brought into operation by a series of ‘directions’ issued by the Commissioner of Police which are binding on all officers.[20] Relevant directions for a police disciplinary system include Disciplinary Hearing (Police Officers) Policy (No 19 of 2011), dated 19 December 2011, Procedural Guidelines for Complaint and Client Service Reporting Policy (No 53 of 2013) dated 1 July 2013, and, significantly for present purposes, Administrative Consensual 32 Regulations 5-8. 33 Regulation 9. 34 Police Service Discipline Regulations, Regulation 12(1). 35 Police Service Discipline Regulations, Regulation 12(2). 36 Ibid. 37 Crime & Misconduct Commission v McLennan & Ors [2008] QSC 23 at [40]-[44] obiter comments per Daubney J suggest that reg 5 is not subject to reg 12; cf Lee v Crime & Corruption Commission [2014] QCATA 326 at [91-93] obiter comments of Hon JB Thomas AM QC, Judicial Member suggests that he considers it likely is. 38 [2014] QCATA 326. -- 11 of 29 -- 12 Disciplinary Process (ACDP) (Circular No 18 of 2012) dated 30 November 2012. [72] The key to liability for disciplinary action is s 7.4(2) of the PSAA. Disciplinary liability attaches to ‘conduct .. which the prescribed officer39 considers to be misconduct ... on such grounds as are prescribed by the regulations’.40 Footnote [20] PSAA, s 4.9(1) and s 4.9(3). [30] However, broad powers to impose disciplinary sanctions are conferred on prescribed officers by Parliament in s 7.4(3) of the PSA Act, although pursuant to s7.4(1), prescribed officers are authorised by the regulations for ‘disciplinary action in the circumstances of any case in question.’ Regulation 5 appears to effectively acknowledge this and specify that only the commissioner and deputy commissioners may take action in the circumstances of any case and may impose any of the full range of possible disciplinary sanctions. However, the disciplinary sanctions that may be imposed by other prescribed officers (that is, other than the commissioner and the deputy commissioners) are constrained under the Police Discipline Regulations as specified in Regulations 6-8. As discussed above, regulation 10 provides that, subject to regulations 11 and 12, and without limiting the disciplines that may be imposed by the commissioner and deputy commissioner, disciplinary action that may be imposed under the regulations are those set out. [31] In Lee, the Appeal Tribunal observed that only superior courts have the inherent power to suspend the operation of an order,41 and expressed doubt that Regulation 5 could be a statutory source for the power. Daubney J in Crime & Misconduct Commission v McLennan & Ors,42 suggested in his obiter comments that Regulation 12 is a special type of suspension: he did not consider that it deprived the prescribed officer (who was at the relevant time acting as Commissioner) of a more general ability to suspend a sanction under Regulation 5. [32] Notwithstanding that only superior courts have inherent power to suspend orders generally, the question here is arguably whether a prescribed officer may impose a sanction which is a suspended sanction (rather than an order of a court) when taking disciplinary action. Whereas I would agree that Regulation 5 alone would not be an adequate source of power to suspend a sanction, arguably the broad power conferred by section 7.4(3) of the PSA Act does provide the broad general source of power to discipline in any manner considered appropriate, including by way of the disciplinary actions set out. It may include any type of sanction. There is, it seems to me, no apparent basis to preclude the imposition of a suspended sanction. [33] In summary, it seems to me that Regulation 5 provides that the commissioner and the deputy commissioners may take disciplinary action 39 Emphasis added. 40 Lee v Crime & Corruption Commission & Anor [2014] QCATA 326, at [71]-[72].. 41 Lee v Crime & Corruption Commission & Anor [2014] QCATA 326 at [93]. 42 [2008] QSC 23 at [40]-[44]. -- 12 of 29 -- 13 in the circumstances of any case and may exercise the full breadth of the disciplinary powers conferred by s 7.4(3). It would appear, however, that other prescribed officers may only have power to suspend under Regulation 12. [34] Accordingly, if I had to decide whether the sanction imposed could be suspended by the Deputy Commissioner, I would accept that it could be. The facts in issue Does the Crime and Corruption Commission make factual allegations which are impermissibly outside the scope of the disciplinary charges? Should findings of fact as alleged by the CCC and/or Mr O’Sullivan be made about the contextual matters? The parties submissions [35] Mr O’Sullivan submits that the additional facts alleged by the CCC extend impermissibly beyond the ambit of the charge and that the Tribunal is constrained by the charge. In the alternative, he submits that the CCC bears the onus of proof43 and that, in any event, the evidence does not support findings of fact as alleged. At hearing, the CCC acknowledged that it bears the onus of proof. It also made some concessions concerning the alleged facts. Mr O’Sullivan submits that contextual additional facts surrounding the substantiated misconduct may be considered by the Tribunal. The appropriateness of considering contextual facts is not controversial between the parties. [36] The submissions made by the parties in support of their respective positions are discussed in the following paragraphs. [37] Mr O’Sullivan argues that the CCC, in asserting facts beyond the ambit of the disciplinary charge as particularised, impermissibly seeks to raise matters in addition to the charge and substantiated misconduct. While acknowledging that relevant circumstances surrounding the misconduct may be taken into account, he submits that an officer must not be sanctioned for misconduct other than as substantiated.44 In this regard, he argues that the principles applicable in the disciplinary proceeding are analogous to the principles relevant to criminal sentencing set out in R v De Simoni (De Simoni)45 and R v D46. He relies also upon Lee,47 where the 43 Reliance was placed by Mr O’Sullivan on Disley v QPS [2010] QCAT 530 (in which the Tribunal relied upon the decision of the High Court in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 14 ALR 174); Secretary, Department of Socail Security v Willee (1990) 96 ALR 211; and Legal Practitioner ‘M’ v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312. See also the recent decision of the Tribunal in Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348. 44 Mr OSullivan’s reply submissions filed 16 March 2016. 45 (1981) 147 CLR 383. 46 [1996] 1 Qd R 363. 47 [2014] QCATA 326, [63]. -- 13 of 29 -- 14 Appeal Tribunal said that the Tribunal may not rely on ‘conduct that lies beyond the ambit of the charge’ for the purposes of sanction.48 Further, he submits that the principle is also supported by other disciplinary sanction decisions, although those other decisions do not concern discipline of a police officer.49 [38] In the alternative, Mr O’Sullivan submits that the CCC bears the onus of proving the additional facts. He relies upon the decision of Disley v Queensland Police Service50 in which the Tribunal referred to the High Court’s decision in Builders Licensing Board v Sperway Constructions (SYD) Pty Ltd. 51 In Sperway, an administrative board had found a builder guilty of improper conduct. The High Court concluded that an appeal to the District Court was a hearing de novo. In that case, the Court said that the onus was on the Board to present its case, even though the builder appealed the decision. As Mr O’Sullivan points out, this approach to onus of proof has been applied in a variety of disciplinary contexts.52 [39] At hearing, the CCC conceded that it bears the onus of proof in these proceedings in relation to the additional contextual findings which it urges on the Tribunal. It also acknowledges that the Tribunal can only make its determination on the basis of the charge as framed and substantiated. The CCC argues that it does not seek impermissibly to go beyond the charge for misconduct made against Mr O’Sullivan. [40] It submits that the facts it alleges are not inconsistent with the charge as substantiated: it says they are relevant background/contextual facts. It argues that, as Mr O’Sullivan acknowledges in his submissions, relevant circumstances surrounding the substantiated misconduct may be taken into account in imposing sanction. The CCC submits that taking these contextual matters into account is supported by the reasoning of the Appeal Tribunal in Lee. My conclusions about the findings of fact that may be made on the review [41] I have concluded that in determining the review on sanction, it is impermissible to make findings of fact that would stray beyond the ambit of the charge and substantiated misconduct, if doing so would amount to punishing Mr O’Sullivan for conduct that is more serious than the substantiated misconduct. That said, I am satisfied that I may take into account contextual circumstances relevant to the substantiated misconduct, which go to both the gravity of the misconduct as found and in mitigation. [42] I accept that the fundamental principles discussed in the criminal cases of De Simoni and R v D provide some guidance. In De Simoni, the High Court held that whereas the sentence imposed on an offender should take into 48 Lee v Crime & Corruption Commission & Anor [2014] QCATA 326, at [110], [117]. 49 Legal Services Commissioner v Madden (2009) 1 Qd R 149. 50 [2010] QCAT 530. 51 (1976) 14 ALR 174. 52 Secretary, Department of Social Security v Willee (1990) 96 ALR 211; Legal Practitioner ‘M’ v Counsel of the Law Society of the Australian Capital Territory [2015] ACTSC 312. -- 14 of 29 -- 15 account all relevant circumstances of the charge, a person cannot be punished for an offence for which he has not been convicted.53 In R v D, the Queensland Court of Appeal held that, in sentencing, a circumstance may not be taken into account if it would establish either a separate offence or a more serious offence.54 [43] In Lee, the Appeal Tribunal relevantly held that evidence would not be properly admitted, if the principal purpose of the evidence was to establish conduct beyond the ambit of the charge. However, allowing additional evidence relevant to the charge could properly be allowed. 55 In that instance, the charge contained no element of dishonesty or falsity, only inadequacy of an investigation.56 The evidence in question was considered properly allowed because it went to inadequacy of the investigation. It was held to be irrelevant that it was also capable of showing dishonesty.57 Although in Mr O’Sullivan’s case, the question is about the findings which may be made, rather than whether additional evidence should be allowed, the general principle underlying the conclusion in Lee also provides some useful assistance. [44] I am satisfied that as a matter of procedural fairness a similar principle applies here in relation to making of findings of fact about contextual matters. It would be impermissible to make findings of fact which would, in effect, render Mr O’Sullivan liable to sanction for a disciplinary charge which has not been substantiated against him, and which he has not been required, or had the opportunity, to answer. However, it is permissible to make findings of fact which are relevant to the substantiated misconduct, even if those findings may be capable of establishing a more serious charge than the charge brought against the officer. [45] As long as they are relevant to the misconduct as charged, answered and found substantiated, it is irrelevant that they may also arguably have justified additional or more serious disciplinary charges. Concessions made by the Crime and Corruption Commission at the hearing [46] The CCC concedes that it bears the onus of proof in establishing additional facts upon which it seeks to rely.58 [47] The CCC resiles from its earlier submission that Mr O’Sullivan caused Mr GTB’s head to strike the petrol bowser. It submits that he used physical force to hold Mr GTB’s arms back and push him into the bowser. It submits 53 (1981) 147 CLR 383, 389. 54 [1996] 1 Qd R 363, 403. 55 Lee v Crime & Corruption Commission & Anor [2014] QCATA 326, at [109] - [112]. 56 Ibid, [43] [47]. 57 Ibid, [112]. 58 See also Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348 (decided after the hearing in this proceeding) where, consistently with the concession made by the CCC that it bears the onus of proof in a police disciplinary review brought by it, the Tribunal held that the onus of proof in establishing the charges lies with the accusing officer bringing the disciplinary charges. -- 15 of 29 -- 16 that it is a ‘matter of semantics’59 whether his head hit the bowser or whether other parts of his body hit the bowser. Further, it resiles from the allegation made in its original written submissions that Mr O’Sullivan ‘threw’ Mr GTB to the ground. It says by whatever mechanism, it is indisputable that as a result of force used by Mr O’Sullivan, Mr GTB was brought to the ground. [48] The CCC had also alleged that the misconduct was viewed by Mr GTB’s young children who were in his vehicle. The CCC acknowledged at hearing that there is no material which positively suggests that this is the case. Further, the CCC now concedes that at the time of the incident, Mr GTB had not identified himself as a disability pensioner. The additional facts alleged by the CCC [49] I have considered the facts in issue alleged by the CCC and its submissions, as far as they were not resiled from at hearing, having regard to the onus of proof borne by the CCC. The CCC further submits that the Deputy Commissioner’s findings ‘do not adequately reflect the illegal, aggressive, violent and inappropriate nature of’ the purported ‘arrest’ and take down.60 [50] The Deputy Commissioner described the events as follows:61 It is clear from the statements in your interview that your emotional state was raised due to the incident which had just occurred on the roadway. Mr GTB’s dismissive attitude towards you also seemed to have an aggravating effect on the interaction. You subsequently identified yourself as a police officer and when Mr GTB turned towards the petrol bowser you grabbed his arm and pushed him into the bowser. A short struggle ensued which resulted in Mr GTB lying on the ground behind his car. You stated you were attempting to arrest Mr GTB but you did not verbalise your intention to him. It is unclear what you were going to arrest Mr GTB for, or what authority you were relying on to commence this action. I find this use of force was both excessive and unnecessary. [51] The starting point is the disciplinary charge. The charge is one of improper conduct by way of inappropriately using force against Mr GTB; failing to treat Mr GTB with dignity and respect; and acting in a manner adversely to the reputation of the QPS. [52] From this perspective, I turn to consider each of the additional allegations made by the CCC as set out in the joint statement in the following paragraphs. Senior Constable O’Sullivan entered the service station at speed, pulling his vehicle in closely behind Mr GTB’s vehicle 59 Oral submissions of the CCC at hearing. 60 Submissions of CCC filed 1 February 2016, para 12. 61 Exhibit 6, pp657-658. -- 16 of 29 -- 17 [53] The CCC alleges that Mr O’Sullivan entered the service station at speed and pulled in closely behind Mr GTB’s vehicle. It contends that he did so with the primary intention of confronting Mr GTB.62 The particulars of the charge allege that Mr O’Sullivan followed Mr GTB into the service station. However, it is not part of the charge that he pursued Mr GTB or approached him in a threatening manner by driving fast and parking close to him in a manner that was in some way intimidating in itself. [54] Is the speed at which he may have entered the service station, or how closely he may have parked behind Mr GTB relevant to the charge against him? I have concluded that it is not. Although the particulars of the charge include the allegation that Mr O’Sullivan followed Mr GTB into the petrol station, the charge of improper conduct (involving inappropriately using force against Mr GTB and not treating Mr GTB with dignity and respect) relates to the argument and the physical interaction which occurred from the time he spoke with Mr GTB. Therefore, I do not make a finding as contended for by the CCC. [55] In case I am wrong, and the allegation made by the CCC is relevant to the charge, I make the observation that I would not, in any event, be satisfied that Mr O’Sullivan entered ‘at speed’. It is a somewhat vague assertion. The submissions of the CCC are that he was travelling at an excessive speed.63 Mr O’Sullivan says he entered in a regular way, as he usually did.64 [56] The CCC claims his vehicle was travelling faster than other vehicles on the CCTV footage and that a witness corroborates that evidence.65 Clearly, Mr O’Sullivan’s vehicle was moving. No doubt, vehicles enter at a range of speeds. Even if Mr O’Sullivan was travelling faster than the sample of vehicles on the CCTV footage, that does not establish that he was travelling at an excessive speed or that he was travelling at an unusually fast speed for a vehicle entering a service station. He did park behind Mr GTB. That fact is agreed between the parties. I have made that finding earlier in these reasons. I would not draw the inference from the facts as found that Mr O’Sullivan deliberately pursued Mr GTB with the intention of confronting him. Senior Constable O’Sullivan initiated the physical contact between he and Mr GTB by applying force to Mr GTB’s arm, which caused Mr GTB’s head to strike a petrol bowser before being brought to the ground by Senior Constable O’Sullivan [57] I accept that these allegations, if they were found as facts, would be relevant to the substantiated charge of misconduct. [58] Consistently with the Deputy Commissioner’s findings, the parties agree, and I have already found in the preceding paragraphs, that Mr O’Sullivan 62 CCC Submissions filed 1 February 2016, para 8. 63 Submissions of CCC filed 1 February 2016, para 8. 64 Exhibit 6, p. 481. 65 Exhibit 6, pp 274, 279. -- 17 of 29 -- 18 applied force to Mr GTB’s arm, pushing him into a petrol bowser and resulting in Mr GTB ending up on the ground. [59] As discussed, the CCC does not press the allegation that Mr O’Sullivan caused Mr GTB’s head to strike the petrol bowser. Although Mr GTB himself made a statement to this effect,66 the CCTV footage does not support the allegation. [60] In its submissions,67 the CCC had further alleged that, as Mr GTB said, Mr O’Sullivan ‘threw’ him to the ground.68 However, as discussed above, that allegation was not pressed at hearing. [61] As discussed,69 the Deputy Commissioner found in considering substantiation that Mr O’Sullivan initiated the physical contact by grabbing Mr O’Sullivan’s arm and pushing him into the petrol bowser, and that following a short struggle, Mr GTB was on the ground.70 He further observed that witness reports gave the impression that Mr O’Sullivan was the instigator.71 The CCTV footage confirms it. Accordingly, I am further satisfied (and although it is not an agreed fact as between the parties, Mr O’Sullivan does not appear to dispute it), that he initiated the physical conduct between himself and Mr GTB. As the force was applied to Mr GTB, Mr GTB told Senior Constable O’Sullivan that he was a disability pensioner [62] The CCC’s written submissions refer to Mr GTB having told Mr O’Sullivan on numerous occasions during the takedown that he was a disability pensioner.72 At the hearing, the CCC conceded that at the time force was applied, Mr O’Sullivan did not know that Mr GTB was a disability pensioner. Further, it acknowledged that it was in any event irrelevant. [63] I do not make a finding to the effect alleged. At no time did Senior Constable O’Sullivan tell Mr GTB that he was under arrest [64] In respect of this allegation, paragraphs 12.4 and 13.5 of the joint statement are relevant. The CCC alleges in 12.4 that ‘at no time did Mr O’Sullivan tell Mr GTB that he was under arrest.’ Mr O’Sullivan in 13.5 contends that Mr O’Sullivan ‘informed Mr GTB that he was under arrest sometime after force was applied’. [65] The CCC submits that the facts as found by the Deputy Commissioner about the interactions between Mr O’Sullivan and Mr GTB73 reflect the version of events given by Mr O’Sullivan and fail to adequately take into 66 Exhibit 6, p 67 67 Submissions of CCC filed 1 February 2016, para 11.3. 68 Exhibit 6, p 70. 69 See paragraphs [5-6] of these reasons for decision. 70 Exhibit 6, p 657. 71 Exhibit 6, page 658. 72 Submissions of the CCC filed 1 February 2016, para 11.3. 73 Exhibit 6, p 657. -- 18 of 29 -- 19 account Mr GTB’s evidence, other available evidence and the serious nature of the incident. In particular, it refers to Mr O’Sullivan’s alleged failure to advise Mr GTB that he was under arrest during the take down. [66] The CCC acknowledges that the CCTV footage shows that before the take down of Mr GTB, Mr O’Sullivan flashed something in front of him. Mr GTB said that he could not see what it was.74 The CCC concedes, in the agreed facts, that he identified himself as a police officer. However, the CCC submits that at no time during the take down did Mr O’Sullivan tell Mr GTB that he was under arrest.75 [67] Having regard to the CCC’s submissions, Mr O’Sullivan suggests that the allegation may be that Mr O’Sullivan did not identify himself as a police officer until after Mr GTB was on the ground.76 He points out that the particulars of the charge as admitted by Mr O’Sullivan include that he identified himself as a police officer, as do the agreed facts. He submits that the CCC is not entitled to resile from this agreed fact, if that is what is intended by the allegation. He submits that the allegation as far as it concerns an ‘arrest’ is beyond the charge. [68] The Deputy Commissioner observed, in his reasons for decision, that it is not apparent what Mr O’Sullivan could have, or intended to, arrest Mr GTB for. That aside, consistently with showing his badge to Mr GTB and identifying himself as a police officer, Mr O’Sullivan acknowledged that in interacting with Mr GTB it was his intention to do so in his official capacity: although he was not on duty, he told the investigating officer that he intended to exercise the powers of a constable of police. 77 [69] In particular, he says he intended to tell Mr GTB that he was under arrest when he explained that he was a police officer, but the situation escalated at that point because of Mr GTB’s verbal reaction to Mr O’Sullivan identifying himself as a police officer, in response to which he grabbed Mr GTB.78 His evidence seems to indicate that as a result, he did not get to tell Mr GTB that he was under arrest until he was on the ground, and Mr O’Sullivan was phoning the police.79 Mr O’Sullivan’s evidence is that he told Mr GTB that he was under arrest after the take down and once he was on the ground.80 [70] The evidence from Mr GTB does not address whether Mr O’Sullivan did or did not tell him he was under arrest. One of the police officers who attended the scene after the incident, Sergeant Shelley deposes that Mr O’Sullivan did not tell him that he had arrested Mr GTB.81 The Deputy Commissioner found that Mr O’Sullivan did not verbalise his intention to arrest Mr GTB.82 74 Exhibit 6, pp 59-62. 75 Submissions of CCC filed 1 February 2016, para 11. 76 Submissions of Mr O’Sullivan filed 16 March 2016, paras 31-31. 77 Exhibit 6, pp521-523. 78 Exhibit 6, pp 488-489. 79 Exhibit 6, p 513. 80 Exhibit 6, p 488. 81 Exhibit 6, p 440. 82 Exhibit 6, p 657-658. -- 19 of 29 -- 20 It is not entirely clear whether the Deputy Commissioner meant at all or before the take down. [71] As discussed earlier, the Tribunal has no role in reformulating the charge made against Mr O’Sullivan. The charge does not refer to any particular alleging that Mr O’Sullivan failed to tell Mr GTB he was under arrest. As discussed, it does include identifying himself as a police officer. However, the charge essentially relates to improper conduct arising from an inappropriate use of force, rather than (a somehow wrongful or misconceived use of power to) arrest, if wrongful or misconceived arrest is the allegation/inference made by the CCC, given its submission about the illegality of the actions. [72] It appears that, in this respect, the CCC’s submissions may go to matters that are beyond the charge and the substantiated misconduct. The charge encompasses an allegation of aggressive behaviour and a failure to treat him with dignity and respect and is made out by the argument and actions culminating in the physical take down of Mr GTB. As accepted by the Deputy Commissioner, the conduct represented an inappropriate use of force. [73] If the CC’s argument is that the use of force was (further or objectively more) inappropriate because it was force used in circumstances that were not associated with an arrest, is it relevant? If the fact was found, it does not appear to me to make the circumstances of disciplinary charge as framed objectively more serious because Mr O’Sullivan had identified himself as a police officer and the use of force is alleged (and acknowledged) to have occurred in this context. [74] I do not make the finding contended for by the CCC. I am not satisfied it is relevant to the substantiated charge as framed. If I am wrong about that, it would not appear in any event to add to the objective seriousness of the conduct. [75] If I am wrong, and a finding should be made, I would find, inconsistently with the Deputy Commissioner’s finding, that Mr O’Sullivan did tell Mr GTB after the take down that he was under arrest. He says he did. Although he failed to tell Sergeant Shelley that he had done so, there is no evidence to the contrary. I agree with the Deputy Commissioner that it was not clear what Mr O’Sullivan intended to arrest Mr GTB for and on what basis. Therefore, although I would accept that the words were said, it would not affect the sanction imposed for the substantiated charge. The incident was witnessed by a number of people, including Mr GTB’s children and an onlooker who called for someone to call the police [76] At the hearing, the CCC conceded that there is no evidence that positively establishes that Mr GTB’s children saw the incident. It did not pursue this matter. [77] Otherwise the facts as alleged here are the subject of the agreed facts. -- 20 of 29 -- 21 Facts alleged by Mr O’Sullivan [78] Other than in relation to paragraph 13.5 of the joint statement as discussed above, the facts as alleged by Mr O’Sullivan relating to the events themselves which resulted in the charges are contextual and supported by his evidence. Generally, (as it appears the Deputy Commissioner did), I accept his evidence about the matters. On this basis, I am satisfied that:  before Mr O’Sullivan went to the service station, he saw the vehicle driven by Mr GTB perform what he considered to be a dangerous overtaking manoeuvre, forcing Mr O’Sullivan to brake to avoid a collision;  As a result of those events, Mr O’Sullivan was feeling shaken and agitated;  Mr GTB spoke to Mr O’Sullivan in an aggressive and derogatory manner when he approached him about the incident;  Mr GTB did not tell Mr O’Sullivan that he was a disability pensioner before the take down. [79] The other facts alleged by Mr O’Sullivan are in the nature of alleged mitigating factors for sanction. I have not located any evidence which suggests that they are untrue, nor had my attention drawn to any. In relation to insight and remorse referred to in paragraph 13.10, my conclusions are discussed in later paragraphs of these reasons for decision. I make findings as alleged by Mr O’Sullivan in paragraphs 13.6 to 13.9 and 13.11 to 13.12 of the joint statement. They are discussed further below. What is the appropriate sanction? [80] The CCC submits that the sanction imposed on Mr O’Sullivan is inadequate and does not reflect the objective seriousness of the misconduct (taking into account the additional facts alleged by the CCC about the manner of Mr O’Sullivan’s entry into the service station, his interactions with Mr GTB, and his description of the events afterwards), nor the purpose of disciplinary proceedings. Further, it submits that insufficient weight was given to some factors and that suspension of the sanction was inappropriate. It argues that no mitigation should be attributed for acceptance of the conduct by Mr O’Sullivan because of what it describes as false and self-serving statements given by him immediately following the incident. It submits that the correct and preferable decision is to impose the sanction of the Deputy Commissioner but that it should not be suspended. [81] Mr O’Sullivan submits that the sanction imposed is excessive having regard to the relevant comparative cases. He says this is the case because it is potentially a permanent demotion from Senior Constable to Constable (if not for the suspension), and that having regard to comparative decisions, the correct and preferable decision would be to impose a pay point reduction of Senior Constable 2.4 to 2.1 for one year and then suspend that sentence on the same terms as the Deputy Commissioner suspended it. He argues that there are facts in mitigation which were not considered, or not -- 21 of 29 -- 22 properly considered by the Deputy Commissioner. These relate to the events which occurred prior to the misconduct; the events during the misconduct, and his personal circumstances at the time. [82] The Deputy Commissioner submits that the decision made is the correct and preferable one. [83] The CCC submits that the Deputy Commissioner, in considering Mr O’Sullivan’s ‘acceptance of the matter’83 was a mitigating factor, did not take into account that immediately after the events at the service station, Mr O’Sullivan ‘lied and denied any wrongdoing’ and made ‘false statements.’84 It says that it does not allege dishonesty, nor suggest that this is an aggravating factor. However, it submits that it adds ‘colour and context’85 to the later acceptance of the charge. As a consequence, it argues that although his later acceptance of his misconduct is a mitigating factor, it should be viewed in the context of his earlier statements. [84] In particular, the CCC refers to Mr O’Sullivan’s statements to Constables Hardisty86 and Luxford87 and Sergeant Shelley88 immediately following the events, as deposed to by them. Constable Hardisty states that Mr O’Sullivan said words including to the effect of ‘Someone has tried to hit me and I’m trying to restrain him now’.89 Constable Luxford states that Mr O’Sullivan told him that after he identified himself as a police officer, Mr GTB pushed him in the chest and he restrained him.90 Sergeant Shelley records that Mr O’Sullivan said that after he had identified himself as a police officer, Mr GTB swore at him and pushed him in the chest, and Mr O’Sullivan then grabbed him and restrained him.91 [85] The CCC argues that although the Deputy Commissioner correctly accepted that Mr O’Sullivan later acknowledged his misconduct, he did not refer to his statements immediately following the events, when he instead made false and self-serving statements. The CCC urges the Tribunal to accept that at the initial stage Mr O’Sullivan did not immediately acknowledge his misconduct. Instead, he sought to divert blame, later acknowledging it only after viewing the CCTV footage. [86] However, it concedes that when he made a formal statement two weeks later, Mr O’Sullivan acknowledged the misconduct. The CCC submits that this context is relevant to the objective seriousness of the conduct, despite the mitigating factor of Mr O’Sullivan’s acceptance of the misconduct. 83 Exhibit 6, p 664. 84 Submissions of the CCC filed 1 February 2016, pp [13-17]. 85 CCC’s oral submissions at hearing. 86 Exhibit 6, p 412 plus paras [9], [19] and [21]. 87 Exhibit 6, p 419 plus paras [9], [11] and [12]. 88 Exhibit 6, pp440-447. 89 Exhibit 6, p 414 90 Exhibit 6, p420-421. 91 Exhibit 6, p 441. -- 22 of 29 -- 23 [87] Mr O’Sullivan submits that the CCC has not established the facts it relies upon to support these submissions. In particular, he submits that by the time there was any suggestion that his actions amounted to misconduct, he acknowledged it. [88] Further, for Mr O’Sullivan it is submitted that there ‘is a significant difference between a lie and a mere false (or wrong)’92 statement. A lie would be deliberate, with an intention to mislead/misrepresent, whereas a false or wrong statement may arise as a result of mistake or misinformation. Also, he submits that in circumstances in which Mr O’Sullivan says that Mr GTB almost hit his car, the recorded comments that someone tried to hit him should not be interpreted as Mr O’Sullivan falsely and deliberately saying that Mr GTB tried to physically strike him. [89] In relation to the allegations that Mr O’Sullivan said that Mr GTB had pushed him in the chest, it is submitted that caution should be taken in giving weight to this evidence because it had not been put to Mr O’Sullivan, and nor were the officers who recorded the words interviewed as part of the disciplinary matter. It is argued for Mr O’Sullivan that even if he said the words alleged, the CCC has not established that he was lying, rather than, for example, being confused ‘in the heat of the moment.’93 Accordingly, it is submitted for Mr O’Sullivan that the CCC has not discharged its onus of proving the allegations it raises. [90] In respect of the arguments about the comments allegedly made by Mr O’Sullivan immediately after the incident, I observe the limitations in reviews in the police disciplinary jurisdiction. These have previously been the subject of observations by the Tribunal. In particular, in Crime and Misconduct Commission v Deputy Commissioner & Chapman, the Tribunal said as follows: [16] This procedure is a relic of earlier armed service orderly room procedure. It may be satisfactory for dealing with minor disciplinary infringements, but it leaves much to be desired in more serious matters like the present. [17] The review in this Tribunal suffers from some similar limitations, in that we have been given essentially the same written material and have not seen or heard any witnesses. But at least we have had the benefit of an adversarial procedure and have received submissions from both sides. [18] We have mentioned these concerns because there are direct conflicts in the witness statements, and there has been no conventional trial to resolve them. Both of the proceedings (before Deputy Commissioner Rynders and before this Tribunal) are tantamount to decisions on the papers. [19] Of course questions of credibility can be properly addressed through such procedures, especially through assessments of inherent probabilities, but there appear to be serious limitations in the present 92 Submissions of Mr O’Sullivan filed 16 March 2016, para 60. 93 Ibid, para 60(c). -- 23 of 29 -- 24 system under which police misconduct matters are determined. These can only be addressed by the legislature.94 [91] The limitations arise because of the provision in the CCC Act to the effect that the review must be conducted by way of rehearing on the evidence which was before the decision-maker (unless leave is granted for new evidence to also be relied upon).95 Although the tribunal’s review is a merits review, and the hearing is conducted afresh on the merits, the hearing process is constrained. That said, the hearing is a hearing de novo in the sense that it is a hearing afresh on the merits conducted in a similar manner to the hearing before the decision-maker, in this case, the Deputy Commissioner. [92] The disciplinary charge contains no element of dishonesty. However, in considering the weight to be given in mitigation flowing from acceptance of the misconduct, I would accept that it is relevant to consider the contextual circumstances of the acceptance. I accept Mr O’Sullivan’s arguments to the effect that any statements he may have made to the effect that Mr GTB ‘tried to hit him’ could reasonably be construed as Mr O’Sullivan suggesting that Mr GTB almost hit his motor vehicle, as opposed to physically assaulting him. Accordingly, even if that was said, I would not consider it established that Mr O’Sullivan failed to accept responsibility for his actions. [93] The statements of the other officers relied upon by the CCC are dated 8 January 2014: that is, before the disciplinary charge was formulated and Mr O’Sullivan was required to answer it. He was interviewed on 7 February 2014. He submits, (and the CCC does not suggest otherwise), that the statements sought to be used against him to the effect that Mr GTB pushed him in the chest were not put to Mr O’Sullivan in the 7 February interview. Nor has the evidence of the officers concerned been tested in any other way: they were not interviewed in the disciplinary process. They may have recorded the sense of what they understood, rather than the words spoken by Mr O’Sullivan. The words said by Mr O’Sullivan may not have been intended to convey a physical assault, in the same way that the words ‘he tried to hit me’ could reasonably in the circumstances be inferred to connote the near-miss motor vehicle incident, as opposed to a physical assault. [94] In the circumstances, resorting to techniques of assessing the inherent probabilities do not assist. For these reasons, I do not give significant weight to the statements attributed to Mr O’Sullivan by officers Hardisty, Luxford and Shelley, as relied upon by the CCC. [95] Further, the CCC submits that although the misconduct occurred when Mr O’Sullivan was off-duty, it was conduct purportedly taken as, or engaged in as, a police officer. It argues that this is an aggravating circumstance. [96] It argues that the demotion imposed should be maintained, but the sanction should not be suspended. It submits that this would be in keeping with s 94 CMC v Deputy Commissioner & Chapman [2010] QCAT 564, [16]-[19]; see also Officer GJB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348. 95 CCC Act, s 219H. -- 24 of 29 -- 25 219A of the CCC Act, in particular that the purposes of discipline include maintaining public confidence. [97] Mr O’Sullivan contends that there are relevant mitigating factors. In particular, he recognised that mental health issues may have impacted on his behaviour. Accordingly, he sought assistance from relevant professionals. He was subsequently diagnosed with an adjustment disorder, which he submits contributed to his poor conduct towards Mr GTB, for which he is both regretful and remorseful. He says that he has demonstrated insight into the situation. [98] Further, he submits that his conduct and work performance before and since the incident have been good. He is supported by a number of positive references and regarded as a competent and committed officer by many peers. He has no other substantiated disciplinary matters, although, as the Deputy Commissioner observed, he appears to have had a ‘more than average’ number of complaints against him and received managerial guidance on 2 occasions, although over 10 years ago, as well as following this incident.96 Comparative decisions [99] Submissions were made about comparative decisions. [100] In Wheeler v Assistant Commissioner Paul Wilson (Wheeler),97 the off-duty police officer who was disciplined had been the subject of an attempted armed robbery committed by a group of youths. About twenty minutes after the incident, he attended at a place where police had the youths under arrest and restrained on the ground. He pushed past the arresting officer, swore at the youths and kicked one of the perpetrators who was in a prone position on the ground. The officer was ultimately (after a QCAT review) sanctioned with a pay point reduction from Senior Constable 2.9 to Senior Constable 2.5 for one year (thereafter returning immediately to 2.9), suspended for one year on condition of no further misconduct; completion of 70 hours of community service; and the officer could not perform higher duties during the suspension. [101] In CMC v Acting Deputy Commissioner Barron and Alexander (Alexander),98 an off-duty officer arrested an offender on his way to work. Having detained the offender who was not then posing a threat, the constable kneed him in the head, knocking him unconscious. The officer was dismissed, but the dismissal suspended on condition of no further misconduct for 2 years; 100 hours community service; HSO meetings; and 3 months supervision by a senior officer. [102] In McKenzie v Acting Assistant Commissioner Tony Wright (McKenzie),99 the disciplined off-duty officer deliberately, inappropriately and forcibly 96 Exhibit 2, p 661. 97 [2013] QCAT 519. 98 [2014] QCAT 241. 99 [2011] QCATA 309. -- 25 of 29 -- 26 detained another officer with whom he had previously been in a relationship. He forced her down on a bed with his knees in her back; handcuffed her hands behind her back; and applied a lateral vascular neck restraint. The detained officer sustained injuries including a fracture to her eye socket. The officer was reduced from the rank of Sergeant pay point 3.5 to Senior Constable pay point 2.9 for 12 months. The sanction was not suspended. The Appeal Tribunal described the misconduct as a ‘reprehensible off-duty skirmish’,100 observing that it would have been more reprehensible had the officer been on duty.101 [103] A 1998 decision of the former Misconduct Tribunal in Criminal Justice Commission v Assistant Commissioner Scanlan and Saez102 (which was referred to in Wheeler), is also raised by Mr O’Sullivan. It concerned misconduct by a senior constable involving drinking alcohol on duty; improperly using a police vehicle; going absent from duty; driving a police vehicle without due care and attention and failing to stop after colliding with another vehicle and failing to disclose facts regarding the traffic incident. A two penalty point sanction, suspended for 12 months and 20 hours community service was imposed. However, expectations concerning discipline for police misconduct have evolved since 1998 when that matter was determined. I consider the sanction imposed in that matter does not reflect current expectations: I am satisfied that more recent decisions are more pertinent and persuasive. I do not consider the 1998 decision further. [104] I was also referred to a 2002 decision of the former Misconduct Tribunal of Mitchell v Assistant Commissioner Barnham.103 It involved conduct of an off-duty officer who was affected by alcohol. When asked to leave hotel premises, he initially refused, then attempted to re-enter, and then resisted attempts to prevent him re-entering, assaulting a duty manager and another employee of the hotel. The officer had a poor service history. He was reduced in rank from Senior Constable 2.3 to Constable 1.6, suspended for 2 years, on condition of 200 hours community service. Discussion [105] I am satisfied that objectively the substantiated misconduct amounts to a serious misuse of power by a police officer against a member of the public. [106] The appropriate sanction must be determined in each case. However, for reasons of consistency, it is appropriate to consider the sanction imposed in other cases. Of the comparative cases, Wheeler concerns the most similar misconduct to the conduct under consideration here. In both instances, the conduct occurred following some conduct by the member of the public who was the subject of the aggressive behaviour by the police officer disciplined. 100 Ibid, [32]. 101 Ibid. 102 Misconduct Tribunal Queensland, TA6/1998, 4 September 1998, Senior Member Long 103 Misconduct Tribunal Queensland, 12/2002, 2 May 2003, Senior Member McCarthy. -- 26 of 29 -- 27 [107] However, Mr O’Sullivan’s misconduct is objectively less serious than the conduct in Wheeler. The assault in Wheeler was on a youth who was already prone of the ground and in custody of other officers, some 20 minutes after the armed robbery. Here, the driving incident had occurred only minutes beforehand. Also, prior to the physical contact with Mr O’Sullivan, Mr GTB was standing and verbally arguing, apparently vehemently, with Mr O’Sullivan. That said, I accept that being the victim of an attempted armed robbery is likely more traumatic than the near-miss driving incident which Mr O’Sullivan experienced as a result of Mr GTB’s actions before the misconduct. However, Mr O’Sullivan had less time to calm down from the agitation he experienced as a result of the driving incident, before the confrontation ensued. [108] The CCC submits that Mr O’Sullivan’s misconduct was more sustained. Whether or not that is so, the events involving Mr O’Sullivan occurred very quickly. The argument lasted 10 seconds before the physical interaction occurred. It was quickly over and Mr GTB was on the ground. [109] However, in addition to the force used by him during the incident, Mr O’Sullivan’s misconduct caused distress to witnesses, at least one bystander, in addition to Mr GTB’s partner, was sufficiently concerned to telephone the police. [110] The degree of force used in McKenzie was greater than Mr O’Sullivan used against Mr GTB, causing injuries including a fracture. It was more sustained and had also been preceded by threats of physical injury made by the officer to the victim. Also, the officer in that case was not remorseful for his actions, nor acknowledge, wrongdoing. Mr O’Sullivan’s misconduct is less serious than Mr McKenzie’s. [111] The degree of force inappropriately used by the officer in Alexander was sufficient to render the offender unconscious, and was used against a person who was already detained and not causing a threat, although the offender was in an agitated state. Nor does it appear that Mr Alexander had experienced any personal distress as a consequence of any prior actions engaged in by the offender. Again, the force used was objectively greater and more serious misconduct than Mr O’Sullivan’s. [112] The misconduct in Mitchell, involving use of excessive force against two persons, was a significantly more protracted incident, and the force was not used in the purported apprehension of an alleged suspect for some wrong- doing. Rather, Mr Mitchell used force against persons who sought to prevent him from doing what he wished, namely to re-enter a hotel after being asked to leave. Mr Mitchell also had a poor service history. Again, Mr O’Sullivan’s misconduct is objectively less serious. [113] Mr O’Sullivan’s service history is good, despite a significant number of complaints against him over the period of his service since 2001. He is highly regarded by colleagues who provided references. He also acknowledges and expresses remorse for his misconduct. He accepted all of the particulars against him in the weeks following the incident, except the -- 27 of 29 -- 28 allegation that he said ‘I am the fucking police’, which has not been pursued. Although the public is entitled to expect that police officers will act with propriety regardless of stress in their personal lives104 and associated mental health issues, it is to his credit that he voluntarily and without prompting, sought counselling following the incident. He sought to deal with his personal issues and take responsibility for his actions. I am satisfied that he has, in doing so, demonstrated insight and remorse. [114] Against that, the misconduct was significant. The force used was inappropriate and excessive. His actions were distressing for Mr GTB and other witnesses. It was an incident which reflects poorly on the police service. [115] Having regard to the purposes of discipline, including deterrence and protection of the public, as well as maintain public confidence in the police service, the sanction must reflect all of these factors. In light of the comparative decisions, which although not binding provide a useful guide, I have concluded that the sanction imposed is excessive. It is potentially a permanent demotion. Although precedents are not to be slavishly followed, consistency and reasonable comparability are important.105 It does not appear to me having regard to the more serious comparative conduct sanctioned in Wheeler that potential permanent demotion is warranted. The more appropriate sanction would be a time limited pay-point reduction. [116] Also, the pay-point reduction seems unreasonable compared to Wheeler, where the reduction was 4 points, from 2.9 to 2.5. Here it is, 5 points. As it involves objectively less serious conduct, for reasons of consistency, I have concluded that Mr O’Sullivan should be sanctioned with a pay point reduction from Senior Constable 2.4 to 2.1. The reduction should be for the period of one year, with Mr O’Sullivan to return to his former pay level at the end of the 12 month period. I note that the sanction was imposed originally on 1 July 2015 by the Deputy Commissioner. [117] I turn to consider whether the sanction should be suspended. It was suspended for 2 years by the Deputy Commissioner. By the time of the hearing, Mr O’Sullivan had already undertaken the conditions on the suspension imposed by the decision-maker other than completing the suspension period, namely 50 hours community service, the CAP book requirements, and he was meeting with a HSO. In recognition of the effort and time already expended by Mr O’Sullivan in performing the unpaid community service and the rehabilitative functions served by the CAP book and HSO meetings, I am satisfied that a suspension is appropriate, in line with the 12 month suspension imposed in Wheeler. [118] I consider that the suspension should be on similar conditions imposed by the Deputy Commissioner and that the actions already undertaken by Mr O’Sullivan in satisfying them should be recognised as fulfilling them. 104 For example, see Deputy Commissioner Stewart v Dark [2012] QCA 228, at [35]; Scott v Assistant Commissioner Peter Martin [2015] QCAT 423, at [46]. 105 O’Brien v AC Gollschewski [2014] QCATA 148, at [48]. -- 28 of 29 -- 29 Therefore, the term of the sanction and suspension, as well as the other conditions, should be imposed as of 1 July 2015 (that is, the date of the Deputy Commissioner’s decision). It is my intention that Mr O’Sullivan must also continue to meet monthly with a HSO for such period as the HSO recommends, unless the HSO has already terminated the sessions. What is the correct and preferable decision? [119] Accordingly, I am satisfied that the correct and preferable decision is to set aside the decision of the Deputy Commissioner and to substitute a sanction in accordance with the paragraphs above. Non-publication order On 3 August 2015, the Tribunal ordered that publication of the names and any identifying particulars of third parties is prohibited. At the commencement of the hearing, I varied that order such that third parties names and particulars could be identified for the hearing process as between the parties, their representatives and the Tribunal. At this stage, I am satisfied that it is appropriate to make orders clarifying that it is third parties who are not police officers who must not be identified. The reasons for decision may be published referring to third parties who are not police officers in de-identified format only. -- 29 of 29 --