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

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

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

PARTIES: PLAIN CLOTHES SENIOR CONSTABLE DAMIEN ANDERSEN

(applicant/appellant)

v

CRIME AND CORRUPTION COMMISSION
ACTING DEPUTY COMISSIONER MAURICE CARLESS

(respondents)

APPLICATION NO/S:

APL065-19

ORIGINATING APPLICATION NO/S:

OCR082-18

MATTER TYPE:

Appeals

DELIVERED ON:

22 May 2020

HEARING DATE:

28 November 2019, 4 December 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding
Member Browne

ORDERS:
1.   Leave to appeal is granted.

2.   The application for leave to rely upon fresh evidence filed on 23 August 2019 is refused.

THE APPEAL TRIBUNAL DIRECTS THAT:

3.   The applicant must file in the Tribunal two (2) copies and give to the first and second respondents one (1) copy of any further written submissions to be relied upon by 4.00pm on 9 June 2020.

4.   The first and second respondents must file in the Tribunal two (2) copies and give to the applicant one (1) copy of any further written submissions in response by 4.00pm on 30 June 2020.

5.   Unless otherwise ordered and in the absence of a request for a further oral hearing, the Appeal Tribunal will conduct a rehearing of the matter on the papers and without an oral hearing on a date not before 6 July 2020.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – whether decision maker relied on impermissible findings of fact – whether decision maker relied on findings of fact which went beyond the particulars of the charge – whether decision maker entitled to rely upon contextual findings – whether leave should be granted to rely upon fresh evidence

Crime and Corruption Act 2001 (Qld), s 21, s 219G

Police Service Administration Act 1990 (Qld) s 7.4
Police Service (Discipline) Regulations 1990

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 61, s 147

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Crime and Corruption Commission v Carless & Anor [2019] QCAT 50
Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93
Harrison & Anor v Meehan [2017] QCA 315
Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82
John Urquhart t/as Hart Renovations v Partington [2016] QCA 87
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55
O’Sullivan v Deputy Commissioner Brett Pointing [2016] QCAT 510, [41].
R v De Simoni 147 CLR 383

APPEARANCES & REPRESENTATION:

Applicant:

Black, M instructed by Gnech, C of Gnech and Associates Lawyers

Respondent:

Gorry, A of the Crime and Corruption Commission

REASONS FOR DECISION

On 30 August 2016, Damien Andersen drank a number of alcoholic beverages at a work function and whilst intoxicated went to a tavern (‘licensed premises’) in the Safe Night Out precinct. He was arrested by officers of the Queensland Police Service (‘QPS’) for public nuisance. At the time of the arrest…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 75
Decision Date: 22 May 2020

CaseChat Overview and Summary

In the case of Andersen v the Crime and Corruption Commission, the applicant sought to appeal a decision made by the Commission, with a request to introduce fresh evidence. The Commission opposed the application for leave to appeal and to introduce fresh evidence. The dispute involved whether the decision maker had relied on impermissible findings of fact, findings which went beyond the particulars of the charge, and whether the decision maker was entitled to rely upon contextual findings. The applicant also sought leave to rely on fresh evidence.

The primary legal issue before the court was whether the decision maker had erred by relying on impermissible findings of fact, findings which exceeded the particulars of the charge, and whether the decision maker was entitled to rely upon contextual findings. The applicant argued that the decision maker had erred by making findings of fact that were not based on evidence and exceeded the scope of the charges. The applicant also contended that the decision maker had not properly considered the evidence and had failed to give proper weight to the evidence presented.

The court found that the decision maker had indeed erred by relying on impermissible findings of fact and findings that went beyond the particulars of the charge. The court held that the decision maker was not entitled to rely upon contextual findings in this instance. However, the court refused the application for leave to rely on fresh evidence as it was considered irrelevant and did not address the issues at hand.

The Appeal Tribunal granted leave to appeal but refused the application for leave to rely on fresh evidence. The Tribunal directed that the applicant must file further written submissions by a specified date, and the respondents must file their submissions by another specified date. The Tribunal scheduled a rehearing of the matter on the papers and without an oral hearing, unless otherwise ordered or a further oral hearing was requested.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The application for leave to rely upon fresh evidence filed on 23 August 2019 is refused.

THE APPEAL TRIBUNAL DIRECTS THAT:

3. The applicant must file in the Tribunal two (2) copies and give to the first and second respondents one (1) copy of any further written submissions to be relied upon by 4.00pm on 9 June 2020.

4. The first and second respondents must file in the Tribunal two (2) copies and give to the applicant one (1) copy of any further written submissions in response by 4.00pm on 30 June 2020.

5. Unless otherwise ordered and in the absence of a request for a further oral hearing, the Appeal Tribunal will conduct a rehearing of the matter on the papers and without an oral hearing on a date not before 6 July 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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