Crime and Misconduct Commission v Deputy Commissioner, Queensland Police Service and Anor [2012] QCAT 203

CITATION: Crime and Misconduct Commission v Deputy Commissioner, Queensland Police Service and Anor [2012] QCAT 203 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Deputy Commissioner, Queensland Police Service (First Respondent) Mr Paul Dalton (Second Respondent) APPLICATION NUMBER: OCR201-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon J Thomas, AM QC, Member DELIVERED ON: 22 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That the first respondent produce the CMC Report “Dangerous Operations – a report arising from a CMC investigation into allegations of police misconduct (Operation Capri)” for consideration by the Tribunal in conducting this review. CATCHWORDS: Police discipline – order for production of further evidence APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The basic proceedings have been brought by the CMC to review the sanction imposed by the first respondent upon the second respondent, and to review the first respondent's decision not to substantiate particulars four and five. -- 1 of 3 -- 2 [2] The present application is by the CMC for a direction requiring the first respondent to produce a document, namely a CMC report entitled "Dangerous Operations – a report arising from a CMC investigation into allegations of police misconduct (Operation Capri)". It is a public report, and was published in July 2009. The intention is that the report be used by the tribunal in the determination of the review. [3] Its reception is opposed by both respondents. [4] In his reasons for decision, the first respondent expressly referred to the report. In determining the sanction he would impose on the second respondent, his reasons included the following statement: “The Service’s reputation has to some extent been damaged within the public eye, through negative media reporting and importantly through a very lengthy and in depth Crime and Misconduct Commission (sic) resulting in a very negative report of the Service’s throughout (sic) this incident”. [5] The review is required to be by way of rehearing on the original evidence given before the original decision maker, but in special circumstances additional evidence may be received. (See Crime and Misconduct Act 2001 s 219H). Apart from "fresh evidence" situations, the tribunal not infrequently receives evidence of police practices, and evidence which will allow it to understand the evidence that has been given. It is appreciated that the police disciplinary system often involves practices and perceptions that might not be within the comprehension of the lay members of QCAT, who, in a sense represent the public in the conduct of these reviews. [6] As I see it, by specifically referring to this published report as a relevant factor used by him in the exercise of his discretion, the decision maker has made it arguably relevant when the question of sanction is reconsidered by the tribunal. [7] I note the respondents’ contention that the decision maker did not consider the content of the public report as evidence of a material fact, but on the question of any repercussions that have followed the second respondent's conduct and its effect upon the police service, I think that he did take it into account. [8] Tribunals, of course, make up their own minds on these reviews, but may find it relevant to advert to the decision-maker’s impressions and pay respect to them. They would be in difficulty in doing so if they are precluded from accessing material that the decision-maker adverted to in his or her given reasons. [9] The reception of this report will be for a very limited purpose. It will not be evidence of the truth of its contents. Its principal relevance would seem to be for the purpose of aiding the tribunal in determining the effect (if any) that the second respondent's misconduct has had upon the public image of the police force. -- 2 of 3 -- 3 [10] It will be for the tribunal which conducts the review to determine its ultimate relevance, but it seems to be sufficiently relevant to justify an order at this stage that it be produced and made available to the tribunal when the matter proceeds. -- 3 of 3 --