Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23

SUPREME COURT OF QUEENSLAND CITATION: Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23 PARTIES: CRIME AND MISCONDUCT COMMISSION (applicant) v MARGARET McLENNAN (first respondent) and ACTING COMMISSIONER RICHARD P CONDER (second respondent) and CONSTABLE SONIA MARICE THOMSEN (third respondent) FILE NO: 2593/07 DIVISION: Trial Division PROCEEDING: Application for Judicial Review ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 22/2/08 DELIVERED AT: Brisbane HEARING DATE: 5/10/07 JUDGE: Daubney J ORDER: 1. Application dismissed; 2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the first respondent acted erroneously in the application of comparable judgments – whether the second respondent acted ultra vires in suspending a sanction of dismissal ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS - whether the first respondent erred in considering the third respondent’s length of service in determining the penalty to be imposed ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether the weight given by the first respondent to factors of -- 1 of 21 -- 2 mitigation and dishonesty was so disproportionate as to render the decision manifestly unreasonable Aldrich v Ross [2001] 2 Qd R 235, considered Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1, considered Collector of Customs v Pozzolanic (1993) 43 FCR 280, applied Garland v Chief Executive Department of Corrective Services [2006] QSC 245, applied House v The King (1936) 55 CLR 499, cited Minister for Aboriginal Affairs v Peko-Wallsend (1985-1986) 162 CLR 24, applied Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, cited Police Service Board v Morris (1985) 156 CLR 397, cited Queensland Law Society v Bax [1998] QCA 89, considered Judicial Review Act 1991(Qld) Misconduct Tribunal Act 1999 (Qld) Police Service Administration Act 1990 (Qld) Police Service (Discipline) Regulations 1990 (Qld) COUNSEL: J C Dwyer for the applicant PE Smith for the third respondent SOLICITORS: Deputy Official Solicitor Crime and Misconduct Commission for the applicant Queensland Police Service Solicitor for the first and second respondents Gilshenan & Luton for the third respondents [1] On 8 May 2006, the second respondent, who is a Deputy Commissioner of the Queensland Police Service, brought the following disciplinary charges against the third respondent: ‘Matter 1: That on the 10 th day of November 2003 at Brisbane your conduct was improper in that you: (a) drove your motor vehicle on Quarry Road near the intersection with Primrose Street, Sherwood, without due care and attention. [Sections 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990] Matter 2: That on or about the 10th day of November 2003 at Brisbane your conduct was improper in that you: (a) failed to stop at the scene of the traffic accident you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood. -- 2 of 21 -- 3 (b) failed to report a traffic accident to police in which you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood. [Sections 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990] Matter 3: That on the 10 th day of November 2003 at Brisbane your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you: (a) falsely reported the details of a traffic accident to your insurer, Australian Automotive Motor Insurance Limited regarding an accident you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood. [Sections 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990] Matter 4: That on the 10 th day of November 2003 at Brisbane your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you were: (a) untruthful to Mr Clinton John Towers of Australian Associated Motor Insurance Limited, when you stated an unknown white vehicle had been the cause of the accident you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood. (b) untruthful to Mr Clinton John Towers of Australian Associated Motor Insurance Limited, when you stated there were no witnesses, no passengers and no details of any third party to an accident you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood. (c) untruthful to Mr Clinton John Towers of Australian Associated Motor Insurance Limited, when you stated that you had not drunk any alcohol in the previous 12 hours when reporting on an accident you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood. [Sections 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990] Matter 5: That on the 14 th day of November 2003 at Brisbane your conduct was improper in that you: (a) provided false written information to Constable Gates in relation to the traffic accident you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood. [Sections 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990] Matter 6: -- 3 of 21 -- 4 That on the 18 th day of February 2004 at Brisbane your conduct was improper in that you were: (a) untruthful to Detective Senior Sergeant Dabinett during the disciplinary interview when outlining the cause of the traffic accident that occurred on the 10 th of November 2003 at the intersection of Quarry Road and Primrose Street, Sherwood. [Sections 1.4 and 7.4 Police Service Administration Act 1990, Section 9(1)(f) Police Service (Discipline) Regulations 1990]’ [2] On 1 August 2006, the second respondent, who was Acting Commissioner of Police at that time, gave a Notice of Formal Finding by which he notified the third respondent that he was satisfied that each of the disciplinary charges had been substantiated, that he found the third respondent’s actions in relation to matter 1 to amount to a breach of discipline, and that he found her actions in relation to the other five matters to constitute misconduct. The second respondent ordered that the following sanctions be imposed on the third respondent: ‘Therefore pursuant to the powers vested in me pursuant to the Police Service Administration Act 1990 and the Police Service (Discipline) Regulations 1990 and having regard to the purpose of discipline, the interests of the Service and the interest of the community in general, I order that the following sanctions be imposed against you: Matters 1 and 2: I impose no sanction. [Section 5 of the Police Service (Discipline) Regulations 1990] Matters 3 and 4: I impose a sanction of dismissal. However, I order that the dismissal be suspended for a period of one year from today’s date. The suspension is conditioned that you be of good behaviour for a period of twelve months. [Section 10(f) and Section 5 of the Police Service (Discipline) Regulations 1990] Matter 5: I impose three penalty points to the amount of $225 be deducted from your pay. I order that the deductions be made by way of instalments of $75 each, the first instalment being the first pay period in September 2006. The second instalment of $75 be deducted in the second pay period in September 2006. The third instalment of $75 be deducted from the first pay period of October 2006. [Section 10(c) of the Police Service (Discipline) Regulations 1990] Matter 6: I impose a sanction of dismissal. I also order that the dismissal be suspended after a period of one year from today’s date. The suspension is conditioned that you be of good behaviour for a period of twelve months. -- 4 of 21 -- 5 In relation to Matters 3, 4 and 6, should you be found guilty of misconduct for matters occurring after today’s date for a period of twelve months, the sanction of dismissal will be imposed. [Section 10(f) and Section 5 of the Police Service (Discipline) Regulations 1990]’ [3] By a notice of appeal dated 14 August 2006, the applicant Crime and Misconduct Commission appealed against the decision of the first respondent to the Misconduct Tribunal (‘the Tribunal’). The grounds upon which that appeal was brought were as follows: ‘1. That in each case: (a) the sanction imposed was inadequate; and (b) no reasonable person in the position of the First Respondent could have come to the conclusion that the sanctions imposed were appropriate in all the circumstances. 2. That in respect of counts 3, 4 & 6: (a) the First Respondent acted ultra vires when he suspended the sanction of dismissal; alternatively (b) no reasonable person in the position of the First Respondent would conclude that suspension of each sanction of dismissal was appropriate in all the circumstances. 3. That looking at the whole of the Second Respondent’s conduct, the sanctions imposed by the First Respondent fail to properly reflect: (i) the need for deterrence; (ii) the need to maintain the integrity of the police service; (iii) the degree to which the relevant conduct fell short of that which the community would reasonably expect of a police officer.’ [4] By a decision dated 23 February 2007, the first respondent, sitting as the Tribunal, made an order confirming the decision appealed against. [5] On 23 March 2007, the applicant filed an application for a Statutory Order of Review under the Judicial Review Act 1991 (Qld) (‘JRA’) of the Tribunal’s decision. In argument, the applicant articulated four grounds on which it relied in seeking the Statutory Order of Review: (a) Pursuant to s 20(2) of the JRA, that the making of the decision was an improper exercise of the power conferred by the Misconduct Tribunal Act 1999 (Qld) . The improper exercises of power contended for by the applicant were those identified in s 23(a), (b) and (g) of the JRA, contending that the Tribunal: (i) Took an irrelevant consideration into account in the exercise of its power; -- 5 of 21 -- 6 (ii) Failed to take a relevant consideration into account in the exercise of its power; and (iii) Engaged in an exercise of a power that was so unreasonable that no reasonable person could so exercise the power. (b) Pursuant to s 20(2)(f) of the JRA, that the decision of the Tribunal involved errors of law, namely: (i) That the Tribunal acted erroneously in law in the way in which it had regard to, and purportedly applied, comparative judgments, and (ii) That the Tribunal erred in determining that the second respondent did not act ultra vires when suspending the sanction of dismissal; (c) Pursuant to s 20(2)(h) of the JRA, that there was no evidence or other material to justify the decision to suspend the dismissal; (d) As a ‘catch-all’ pursuant to s 20(2)(i) of the JRA, that the decision was otherwise contrary to law. [6] The circumstances which led to the disciplinary charges being brought are, in brief, that the second respondent, who had been sworn in as a police officer on 30 January 2002, was involved (as a driver) in a single vehicle motor accident on 10 November 2003 which resulted in damage to her car and damage to a street sign. She failed to remain at the scene of the accident and failed to report that accident to police. When she returned home, she telephoned her motor vehicle insurer and reported, inter alia, that she had been involved in an accident while trying to avoid collision with an unidentified white vehicle being driven erratically. She also said that there were no witnesses to the accident, and she had not consumed alcohol or drugs in the 12 hours immediately preceding the accident. In fact, according to witnesses: (a) The first respondent had been consuming alcohol while at a private function on the afternoon of the accident; and (b) None of the witnesses saw a white vehicle which caused the third respondent to drive erratically. [7] Indeed, the third respondent subsequently pleaded guilty to a charge of driving without due care and attention before the Holland Park Magistrates Court. At that time, she made no reference to an unidentified white vehicle. However, on 14 November 2003 and 18 February 2004, the third respondent continued to give a false version of the accident, attributing blame to the unidentified white vehicle. She continued this story before the disciplinary hearing conducted by the second respondent in May and August 2006. The third respondent’s untruthfulness in the reporting of the matter to the insurer and to the police officers who subsequently investigated the matter are clearly the foundation for charges 3, 4, 5 and 6. The -- 6 of 21 -- 7 significance of these charges was well described in paragraph [67] of the reasons for decision of the Tribunal: ‘Her failure to stop at the scene of an accident and ascertain if anyone was injured; her failure to report the matter to police; her false report on 10 November 2003 to the insurer; her false report on 14 November 2003 of the events of the accident to investigating police; her falsity on 18 February 2004 to a senior officer and her maintenance of fabrication at the disciplinary hearing on 8 May 2006 and 1 August 2006 were reprehensible. She did have the opportunity at any one of these stages to recant. The second respondent as well as lacking candour, demonstrated lack of judgment, immaturity and a failure to appreciate the role of the police in the community and the community’s reliance on the police acting with honesty and integrity.’ [8] Before turning to the particular submissions made in this case, it is appropriate to recall the nature of the appeal heard by the Tribunal in this case, and also the proper function of this court in approaching an application for judicial review of the Tribunal’s decision. [9] It is clear that the role of the Tribunal was not limited merely to reviewing the decision appealed against with the need for error to be shown before a decision can be overturned1 . Rather, the Tribunal, in a case such as the present, was bound to make its own decision on the evidence before it, rather than merely determining the correctness of the original decision in the limited manner permitted by an appeal strictu sensu.2 [10] In Aldrich v Ross3 , Thomas JA observed to the effect that: (a) This system of external public review of the disciplinary decision not only protects against a wrong or unacceptable decision, but also provides a source which can be expected to bring a perspective to bear from the public point of view, but ‘that is not to say that considerable respect should not be paid to the perceptions of the Commissioner as to what is needed for the maintenance of internal discipline’. His Honour thought it appropriate for the Tribunal, in making up its own mind, to give considerable weight to the view of the original decision-maker ‘who might be thought to have particular expertise in the managerial requirements of the Police Force’; (b) The first duty of the Tribunal is to make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision-maker; (c) Even if there is no serious contest as to the primary facts ‘it is still necessary for the Misconduct Tribunal to make up its own mind on the facts and on the inferences to be drawn from them, though it might 1 In the sense described in House v The King (1936) 55 CLR 499. 2 Aldrich v Ross [2001] 2 Qd R 235. 3 Supra, at 257-258. -- 7 of 21 -- 8 well see them the same way as the original decision-maker if that person’s view of the facts is ascertainable’. [11] The application now before the Court is not an appeal, but an application for review of administrative action. In Attorney-General (NSW) v Quin4, Brennan J (as he then was) observed5 that judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful, and then said, in a passage which has since been oft-cited: ‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’ [12] In Minister for Aboriginal Affairs v Peko-Wallsend6 Mason J (as he then was) referred to the ‘limited role’ of a court reviewing the exercise of an administrative discretion, and said7 that: ‘It is not the function of the court to substitute its own decision for that of the administrator by exercising a decision which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.’ [13] I turn, then, to the individual grounds of review on which the applicant relies. The making of the decision was an improper exercise of the power conferred by the Misconduct Tribunals Act 1999 [14] The applicant submits that the first respondent took into account the fact that the third respondent was ‘young in the Service’ and that, in doing so, the Tribunal took an irrelevant consideration into account in the exercise of its power. [15] In order to put this criticism of the Tribunal’s consideration into its proper context, it is necessary to quote at some length from the Tribunal’s reasons for decision: ‘76. The community does have an investment in the resources represented in any QPS officer and, where it is possible to apply, a suspension is itself a real penalty especially so in this case where there is no rescission but offers the prospect of the second respondent’s rehabilitation. 77. The tribunal noted the acknowledgment by the appellant that not every case of dishonesty by an officer warrants dismissal. It is not disputed in this tribunal that the second respondent was dishonest. 4 (1989-1990) 170 CLR 1. 5 At 35. 6 (1985-1986) 162 CLR 24. 7 At 40-41. -- 8 of 21 -- 9 The tribunal acknowledges that it involves a risk to allow a suspension of the dismissal and provide the second respondent with an opportunity to redeem the trust of the QPS. 78. It is helpful to examine earlier and not dissimilar cases. Bowen, on appeal from this tribunal to the Supreme Court, involved an officer found guilty of official misconduct. The officer disclosed confidential information to a member of the police service under his command, falsely denied to an officer of the Criminal Justice Commission that he had done so and falsely stated on oath that he had not done so. There was a series of falsehoods originating in an operational matter and culminating in lying on oath. Before this tribunal, the officer neither contested nor admitted the charges [at 11]. The sanction imposed was demotion and this was upheld. There was mitigation of the sanction provided by lengthy meritorious service. 79. Stretton before Botting J involved an appeal from an order of this tribunal that the officer be dismissed but that order be suspended for a period of three years subject to certain conditions. The sole ground of appeal was that the sanction imposed was manifestly inadequate. In a criminal trial, the officer knowingly had given false testimony on oath. He subsequently admitted to having given false testimony. Specialist medical evidence of post traumatic stress and discontinuation of medication provided significant mitigating circumstances and led the judge to dismiss the appeal. The officer’s unblemished record, good references and the small likelihood of a recurrence led the judge to find that it had been open to the tribunal to make the orders. 80. In Morier, the officer had been sanctioned with dismissal which was overturned on appeal in this tribunal. She had pleaded guilty in the Magistrates Court to attempting, while an employee in the QPS, to dishonestly obtain $500 from the Commissioner of the QPS. She was placed on a recognizance in the sum of $1,500 conditional upon her good behaviour for one year. A conviction was not recorded. In this case, while the deputy commissioner had acknowledged her remorse, accepted her behaviour as aberrant, the tribunal considered that he had given too little consideration to the mitigating personal circumstances of Morier as well as the deterrence and the punitive character of a suspension. In considering the overall significance of a suspension, the Member Mr Silver stated at page 4: “An order suspending a sanction in these circumstances does not necessarily impact negatively on valued principles such as deterrence, the efficiency and reputation of the Police Service or the maintenance of standards ...” 81. Disciplinary proceedings within the police force are analogous to disciplinary proceedings taken against a barrister: Bowen per Demack J at 9 citing Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201. In Hardcastle v Commissioner of Police (1984) 53 ALR 593 the Full Court of the Federal Court stated at 597 in relation to the relevant Australian Federal Police (Discipline) Regulations: -- 9 of 21 -- 10 “The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body.” 82. His Honour Brennan J stated in Police Serve Board v Morris (1985) 156 CLR 397 at 411-412: “The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.” 83. The first respondent has demonstrated his consciousness of the factors outlined in these judgments and that are crucial to the proper administration of discipline within the QPS. The seriousness of the second respondent’s misconduct was reflected in the sanction of dismissal. The second respondent was required to be honest and frank in the disciplinary process. She failed. In the relevant circumstances it is apparent from the reasons and findings of the first respondent that the untruthful conduct was serious and that the appropriate penalty, without consideration of mitigating circumstances, was dismissal. 84. Suspension is, as noted above, a serious sanction and the tribunal considers that it is, in the circumstances of this appeal, appropriate. 85. The second respondent was off duty at the time of the accident but then engaged in misrepresentations to her insurer and persistent falsehoods throughout the investigation process and to her superior officers. While she pleaded guilty in the Magistrates Court, she neither co-operated with the investigation nor admitted anything. She continued to fabricate in the disciplinary hearing commenced on 8 May 2006. As noted by his Honour Demack J in Bowen at 11: “When the appellant lied he did something which erodes the public confidence in the police service and which also affects the trust other members of the police service have in each other. He lied to hide his own mis-doing. When he was false to his oath he put himself in a situation where his oath was forever open to challenge. This, in a significant sense, denied the public the use of his services in the act of detection of crime. It also erodes public confidence and adds weight to the arguments of those who seek to curtail the powers of the police service. It may destroy the trust other members of a police service should have in him.” -- 10 of 21 -- 11 86. Her just over 21 months service as a member of the QPS at the time of the accident however, meant that she was young in the service as remarked upon by the first respondent. 87. The second respondent’s misconduct was no more objectionable than the behaviour outlined in those matters canvassed above. There is importance in exercising consistency in disciplinary matters. As Dr Forbes commented at 5 of the decision in Flegg, after canvassing various similar cases: “Perfect consistency of sanctions imposed by this tribunal, or by the courts, is beyond human endeavour but reasonable comparability is vital.” 88. The tribunal in this matter respects the opportunity afforded the second respondent to redeem her behaviour in the eyes of her fellow members of the QPS. She was at the time of the charges, young in the service albeit not young in years. Her misconduct demonstrated a surprising lack of the maturity one would expect of a then 35 year old woman. There was significant delay in finalizing the disciplinary process. As noted above, the elements of the sanctions ordered have had certain continuing effects upon the second respondent in monetary terms, public embarrassment, on her work record of employment in the QPS and shame before fellow officers.’ [16] It is submitted by the applicant that, in matters involving fundamental dishonesty, a police officer’s length of service is irrelevant, and should have no bearing on the penalty imposed. On that basis, the applicant seeks to impugn the Tribunal’s decision, contending that, by taking into account the fact that the third respondent was ‘young in the Service’, the Tribunal took an irrelevant consideration into account in the exercise of its power. [17] Section 7.4 of the Police Service Administration Act 1990 (Qld) provides: ‘7.4 Disciplinary action (1) In this section – officer, in relation to a person liable to disciplinary action, includes a police recruit. prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question. (2) An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations. (2A) If the prescribed officer – (a) decides a disciplinary charge of misconduct brought against the officer; or (b) when deciding a charge of breach of discipline brought against the officer, finds the officer is guilty of misconduct; -- 11 of 21 -- 12 the commissioner must give written notice of the decision, including the discipline imposed on the officer, or the finding and the discipline imposed on the officer to the Crime and Misconduct Commission and the officer within 14 days after making the decision or finding. (3) Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of – (a) dismissal; (b) demotion in rank; (c) reprimand; (d) reduction in an officer’s level of salary; (e) forfeiture or deferment of a salary increment or increase; (f) deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units. (4) Every order made by way of disciplinary action takes effect in law and is to be given effect.’ [18] The Police Service (Discipline) Regulations 1990 (Qld) relevantly provide: ‘5 Disciplinary powers of the commissioner and a deputy commissioner Where the commissioner or a deputy commissioner has formed the opinion that an officer should be disciplined, the commissioner or deputy commissioner may order that the officer be disciplined in a manner that appears to the commissioner or deputy commissioner to be warranted. ... 9 Grounds for disciplinary action (1) For the purposes of section 7.4 of the act, the following are grounds for disciplinary action – (a) unfitness, incompetence or inefficiency in the discharge of the duties of an officer’s position; (b) negligence, carelessness or indolence in the discharge of the duties of an officer’s position; (c) a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner; -- 12 of 21 -- 13 (d) a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned; (e) absence from duty except – (i) upon leave duly granted; or (ii) with reasonable cause; (f) misconduct; (g) conviction in Queensland of an indictable offence, or outside Queensland of an offence which, if it had have been committed in Queensland would have been an indictable offence. (2) Where disciplinary action against an officer is contemplated on a ground referred to in subregulation (1)(e) the prescribed officer may appoint any medical practitioner or medical practitioner to examine the officer and to report to the commissioner upon the officer’ mental or physical condition or both, and may direct the officer to submit to such examination. 10 Disciplines that may be imposed 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) the disciplinary sanctions that may be imposed under these regulations are – (a) cautioning or reprimand; (b) a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units; (c) a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank); (d) forfeiture or deferment of a salary increment or increase; (e) a reduction in the officer’s rank or classification; (f) dismissal from the police service. 11 Right to chastise or correct continues The provisions of these regulations do not abrogate the right of a superior officer to chastise or correct, by way of guidance, inappropriate acts, omissions or failures in the performance of a subordinate officer’s duty. 12 Sanction may be suspended in certain cases -- 13 of 21 -- 14 (1) Where a prescribed officer imposes any disciplinary sanction under these regulations, the officer may suspend the effect of the disciplinary sanction subject to the officer upon whom the disciplinary sanction is being imposed agreeing to – • perform voluntary community service; or • undergo voluntary counselling, treatment or some other program designed to correct or rehabilitate; designated by the prescribed officer and which is relevant to the act or omission which led to the disciplinary action being taken. (2) Where an officer who has made an agreement pursuant to subregulation (1) – • successfully completes the voluntary community service or counselling, the disciplinary sanction is rescinded and it is to be taken that the sanction was never imposed; • fails to successfully complete the voluntary community service or counselling, the disciplinary sanction is to be implemented.’ [19] Neither the Act nor the Regulations proscribe or prescribe the factors which a decision-maker in a case such as the present is bound to consider in making the decision as to the discipline to be imposed. The relevant factors for consideration must therefore be determined by implication from the subject matter, scope and purpose of the Act. Moreover, even if a decision-maker takes into account a factor which, on a proper construction of the legislation ought be considered irrelevant, this will not justify the Court in setting aside the impugned decision unless it materially affected the decision.8 [20] In contending that the first respondent improperly took into account the length of the third respondent’s service, the applicant relied on Queensland Law Society v Bax9. In that case, the Court of Appeal heard appeals by the Queensland Law Society and the Attorney-General against the penalty which had been imposed on a solicitor found guilty of professional misconduct by the Statutory Committee, that being the body then charged with the disciplinary jurisdiction for solicitors. The case against the solicitor was, in effect, that he backdated a deed of loan and a second mortgage and misinformed a creditors’ meeting about the date of execution of the mortgage, with intention to mislead. The penalty imposed by the Statutory Committee was a fine of $15,000. On appeal, the Attorney-General submitted that the solicitor should have been struck off and the QLS submitted that he should be suspended from practice. The appeals were allowed, and it was ordered that the solicitor be struck off. The applicant in the present case relied particularly on certain observations by McPherson JA in the course of his reasons for judgment. It is appropriate to set out in full the paragraph in which those observations appear: 8 Peko-Wallsend, per Mason J at 39-40. 9 [1998] QCA 89. -- 14 of 21 -- 15 ‘In the present case the solicitor’s action in backdating documents was compounded by his announcement at the meeting of creditors in May 1994 that the Bill of Mortgage was executed in (or ‘on’) March 1993. The spectacle of a solicitor, who was chairman of the meeting, falsely asserting a date for the execution of an instrument is one that is not likely to be readily forgotten by the large number of business people who were present on that occasion. It conveys a very poor image of the honesty and integrity of solicitors and so tends to bring the whole profession and its standards into disrepute. It cannot in my opinion be excused by resorting to the explanation that the solicitor in this appeal was young and, it was said, inexperienced. In a matter like this, and perhaps in most others, basic honesty is not a quality that is ordinarily acquired through experience, or by lengthy practice of trying one’s best to be honest.’ (Underlining added) [21] The present applicant relied particularly on the part of that paragraph which I have underlined. The words relied on by the applicant, however, need to be read in the full context of the paragraph in which they occur. Whilst his Honour’s observations as to the quality of honesty are undoubtedly correct, it does not seem to me that his Honour was suggesting that, in determining an appropriate disciplinary penalty in a professional or service context, the length of service of the individual is not a matter which can never be considered in the circumstances of a particular case. Moreover, as Pincus JA observed in the course of his reasons for judgment in the same case, not every proved act of dishonesty on the part of a practitioner justifies a substantial penalty – ‘dishonesty, like other forms of misbehaviour, has grades of seriousness’. [22] The circumstances of each case are different, and to impose a restriction on a decision-maker in a case such as the present which requires them, when considering penalty, to disregard an individual’s length of service could lead to unjust results. Consider, for example, the case of a police officer with many years of exemplary service and an unblemished record who, shortly prior to the time for retirement, commits a minor act of dishonesty. On the applicant’s contention, the person deciding an appropriate disciplinary measure in that case would be required to focus on the act of dishonesty and completely disregard the officer’s length of meritorious service. Such an outcome would, in my view, be the manifestation of an impermissible fetter on the range of considerations to which a decision-maker, in the Police Service context, may properly have regard when determining an appropriate penalty in the particular circumstances of the case. [23] Accordingly, I am not persuaded that, to the extent that the Tribunal took into account the fact that the third respondent was ‘young in the Service’, the Tribunal took an irrelevant consideration into account in the exercise of its power. The question as to the weight given to that consideration is a matter which falls to be considered under the rubric of unreasonableness in the exercise of the power. [24] Similar considerations apply to the extent that it is contended by the applicant that the third respondent’s good behaviour during the period while awaiting the outcome of the disciplinary process was also an irrelevant consideration for the Tribunal. On the contrary, I can foresee that there may be circumstances in which it is quite appropriate to have regard to such a matter, although that again will depend on the circumstances of each case. Rather than saying that this is a matter which the decision-maker is precluded from considering, the question is, I think, one of weight in the context of the reasonableness or otherwise of the Tribunal’s decision. -- 15 of 21 -- 16 Failing to take a relevant consideration into account [25] The applicant next submits that the ‘third respondent’s failure to acknowledge her dishonesty is a relevant consideration that has been overlooked’ by the first respondent. [26] I respectfully disagree with the contention that this factor was overlooked by the first respondent. In paragraph 67 of the Tribunal’s reasons for judgment, which I have set out above, the first respondent expressly adverted to the false reports, the maintenance of the fabrication and the third respondent’s failure to recant. [27] Further in the reasons for decision, the Tribunal acknowledged, in paragraph 83 (which I have quoted above) that the seriousness of the third respondent’s misconduct was reflected in the sanction of dismissal, the third respondent was required to be honest and frank in the disciplinary process, the third respondent failed in that regard, and that: ‘In the relevant circumstances it is apparent from the reasons and findings of the first respondent that the untruthful conduct was serious and that the appropriate penalty, without consideration of mitigating circumstances, was dismissal.’ [28] The Tribunal immediately followed those observations with the finding that suspension is a serious sanction, and the Tribunal considered that it was, in the circumstances of the appeal, appropriate. [29] The passages that I have just quoted clearly contain either direct or indirect references to the third respondent’s ongoing refusal during the disciplinary process to acknowledge her dishonesty. I do not consider, therefore, that it can be said that the first respondent failed to have regard to this factor when making the Tribunal’s determination. An exercise of a power that is so unreasonable that no reasonable person could so exercise the power [30] The applicant properly acknowledges that, when considering s 23(g) of the JRA, it is not the role of the Court on an application for judicial review to substitute its own view of what might be a fair and reasonable outcome in place of a decision entrusted by the legislature to a member of the executive arm of government. The test is not one of fairness or reasonableness, but whether the decision was so unreasonable that no reasonable person could so exercise the power. 10 [31] The matters on which the applicant relies in seeking to establish the necessary degree of unreasonableness of this decision by the Tribunal can be summarised as follows: (a) The first respondent effectively adopted the reasons of the second respondent for ordering the suspension of the sanction of dismissal, that the reasons provided by the second respondent for suspending the sanction are ‘scant’, and the Tribunal itself did not otherwise identify the reasons for suspending the sanction of dismissal; 10 Garland v Chief Executive Department of Corrective Services [2006] QSC 245; Peko-Wallsend (supra) per Mason J at 40-41. -- 16 of 21 -- 17 (b) The Tribunal placed too much weight on the factor involving the third respondent’s length of time in the service; (c) The Tribunal gave insufficient weight to the factor of the third respondent’s ongoing denial of her dishonesty; (d) The first respondent gave inappropriate weight to the comparative cases to which the Tribunal had regard and was ‘simply wrong’ to conclude that the third respondent’s conduct was no more objectionable than that referred to in the comparative cases, when one takes into account matters of mitigation; (e) The absence of mitigating factors on the part of the first respondent made the decision to suspend the sanction all the more unreasonable. [32] In approaching the question of unreasonableness, it is important to bear in mind that: (a) This is not a merits review; (b) It is inappropriate to construe the reasons for decision under review ‘minutely and finely with an eye keenly attuned to the perception of error’.11 (c) It is generally for the decision-maker, and not the Court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.12 (d) A court undertaking judicial review on the ground that a tribunal has not given proper weight to relevant factors should proceed with caution, lest it exceed its supervisory role by reviewing the decision on its merits.13 [33] The second respondent, when making his decision on suspension of the disciplinary sanctions, said the following: ‘33. The public are entitled to expect that all members will conduct themselves and discharge their responsibilities with professionalism and integrity. The Police Service cannot gain the confidence of the public if the integrity, competence and trustworthiness of its members are found wanting. Your integrity, competence and trustworthiness has definitely been found wanting and it leads me to the conclusion that it would be untenable for you to remain a member of the Service and that you should be dismissed from the Service. 11 Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, cited with approval in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272. 12 Peko-Wallsend per Mason J at 41. 13 Peko-Wallsend per Mason J at 42. -- 17 of 21 -- 18 34. Notwithstanding, I have given consideration to the application of a suspended sanction pursuant to the authority outlined in section 5 of the Police Service (Discipline) Regulations 1990. Ultimately, I must decide whether the nature of your conduct was such that, notwithstanding your previous good record and other mitigating factors, your sanction should be suspended. 35. I have considered the comments of Mr R J Silver, Misconduct Tribunal Member in Morier’s Case [TA No. 1 of 2003] that the purpose of police misconduct proceedings is not compromised by considering the perspective given by the Court in Gillan (1991) 54 A Crim R 475 (in relation) to the assessment of the value and effect of the suspension of a sanction. Mr Silver stated that in Gillian’s Case, it was wrong to regard a suspended sentence as no punishment at all. 36. From this case, I also accept Mr Silver’s comments that “An order suspending a sanction ... does not necessarily impact negatively on valued principles such as deterrence, the efficiency and reputation of the Police Service or the maintenance of standards.” ... 44. In relation to Matter 6: I impose a sanction of dismissal. I also order that the dismissal be suspended after a period of one year from today’s date. The suspension is conditioned that you be of good behaviour for a period of twelve months. In relation to Matters 3, 4 and 6, should you be found guilty of misconduct for matters occurring after today’s date for a period of twelve months, the sanction of dismissal will be imposed. Do you understand what I have just explained to you? [Section 10(f) and Section 5 of the Police Service (Discipline) Regulations 1990].’ [34] Whilst they are brief, I would not describe these reasons as ‘scant’. In any event, I am here concerned with the process or reasoning of the first respondent who, if I may say, appropriately referred to the observations of Brennan J (as he then was) in Police Service Board v Morris14, quoted in paragraph 82 of the Tribunal’s reasons for decision. It is, in my opinion, an arid exercise to analyse microscopically the degree of distinction between the comparative cases to which the Tribunal referred and the circumstances of the present case. What emerges from the Tribunal’s reasons for judgment, however, is that the Tribunal was well aware of the principles and policy considerations to be applied in considering the question of suspension of the sanction of dismissal and, for comity and consistency, had regard to other comparative judgments. To descend into minute analysis of the comparative strengths and weaknesses of the comparable judgments as compared with the present case would be to engage in precisely that which this Court ought not do, namely undertake a merits review of the Tribunal’s decision. 14 (1985) 156 CLR 397 at 411-412. -- 18 of 21 -- 19 [35] True it is, as already noted, that the Tribunal had regard to the third respondent’s length of time in the Service. Notwithstanding the applicant’s submission, it seems to me that the Tribunal’s reference to the circumstances of mitigation in paragraph [88] of its reasons was appropriate. It is also clear, in my view, that the Tribunal had regard to the conduct of the third respondent in failing to admit to her dishonesty. In addition to the passages to which I have referred above, I note the observation in paragraph 85 of the reasons for decision that: ‘While she pleaded guilty in the Magistrates Court, she neither co-operated with the investigation nor admitted anything. She continued to fabricate in the disciplinary hearing commenced on 8 May 2006.’ [36] The applicant has failed to persuade me that the weight given by the Tribunal to these factors was so disproportionate, in making the decision to suspend the dismissal, that it rendered the decision manifestly unreasonable. [37] Accordingly I am not persuaded that the applicant has demonstrated that the Tribunal improperly exercised its power by making a decision that was so unreasonable that no reasonable person could have made it. Error of law [38] In contending that the Tribunal erred in law, the applicant says, firstly, that the first respondent placed reliance on the comparative decisions in reaching the Tribunal’s decision, and in doing so erred in law. It seems that the applicant’s contention is to the effect that the comparative decisions referred to in the Tribunal’s decision were so distinguishable from the present case that none were of assistance in determining an appropriate sanction for the third respondent. Again, however, it seems to me that this not only goes to a question of the weight given by the Tribunal to the comparative decisions, but also would require, in effect, a merits review of the Tribunal’s decision. I do not think it could sensibly argued that, as a matter of law, the Tribunal ought not have regard to comparative decisions; on the contrary, I would have thought it quite appropriate for the Tribunal to do so. [39] The principle argument advanced by the applicant in support of the proposition that the decision involved an error of law is that: (a) The first respondent’s conclusion that the second respondent did not act ultra vires in suspending the dismissal was wrong in law; and (b) The first respondent affirmed the decision of the second respondent, rather than exercising the Tribunal’s own discretion to issue a sanction. [40] As to the first of these points, the applicant submitted that the circumstances in which the second respondent could suspend a sanction are provided for, and only provided for, in s 12 of the Regulations, which I have set out above. It was submitted that suspension of a sanction is conditional, and a sanction can only be suspended when the subject officer has agreed to perform voluntary community service or undergo counselling, treatment or some other program to correct or rehabilitate. [41] This argument does not, however, take account of the broad discretion conferred on the second respondent, as a decision-maker, by both s 7.4 of the Act and -- 19 of 21 -- 20 Regulation 5. On an ordinary reading of those sections, and having regard to the purpose for which the sections were enacted, namely to provide for the maintenance of discipline within the Police Service, it seems to me that the discretion conferred on the decision-maker under Regulation 5 is sufficiently broad, on its face, to encompass a suspension of a sanction, if such a measure ‘appears ... to be warranted’ to the decision-maker. [42] The applicant says, however, that this broad discretion is circumscribed by the provisions of s 12. That, in my view, involves a lack of appreciation of the object achieved by s 12 of the Regulations. Regulation 12(1) permits a relevant decision- maker to suspend the effect of a particular disciplinary sanction subject to the officer upon whom the sanction is being imposed agreeing to one or other of the reparatory or rehabilitative measures specified in s 12(1). Importantly, however, s 12(2) provides that, if the agreed community service or counselling is successfully completed, then ‘the disciplinary sanction is rescinded and it is to be taken that the sanction was never imposed’. [43] Section 12 provides for something which would otherwise not be achieved, namely the legislative erasure of a sanction from an officer’s record upon that officer successfully completing the agreed rehabilitative program. In other words, s 12 provides for a specific form of suspension, on specific terms, and with a specific outcome. The fact that s 12 enables such a conditional suspension, with the result provided for in s 12(2), does not, in my view, mean that a decision-maker under s 5 is deprived of the general ability to suspend a sanction imposed. [44] Accordingly, I reject the applicant’s argument that the ambit of the discretion conferred by s 5 of the Regulations is, so far as suspensions are concerned, circumscribed completely by s 12 of the Regulations. [45] Moreover, and in any event, it is clear that the Tribunal, being the decision-maker with which I am presently concerned, had the power under s 28 of the Misconduct Tribunals Act 1997 to suspend the ‘punishment’ imposed. It will be clear from the passages of the Tribunal’s decision to which I have referred above that I consider that the decision reached by the Tribunal in that regard was the Tribunal’s own decision, based on the evidence before it. Conclusion [46] Contrary to the applicant’s submission, I consider that there was sufficient evidence and material before the Tribunal to justify its decision to suspend. That material included, of course, the original decision and the reasons given by the second respondent. The first respondent was clearly entitled to have regard to these matters when reaching the Tribunal’s decision. [47] It follows from all of the above considerations that the applicant has not persuaded me that the first respondent was otherwise wrong in law. [48] Accordingly, I order: 1. That the application be dismissed; 2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis. -- 20 of 21 -- 21 -- 21 of 21 --