Austin v Deputy Commissioner Peter Martin - [2018] QCAT 120

CITATION:	Austin v Deputy Commissioner Peter Martin [2018] QCAT 120
PARTIES:	Constable Jason Marc Austin (Applicant)
v
Deputy Commissioner Peter Martin (Respondent)
APPLICATION NUMBER:	OCR203-17
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	8 March 2018
HEARD AT:	Brisbane
DECISION OF:	Member McLean Williams
DELIVERED ON:	27 April 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision of Deputy Commissioner Peter Martin made on 7 September 2017 is set aside. 2. The following decision is substituted: (a) The improper conduct alleged as matters 1(a), 1(b), 1(c), & 1(d) in the Disciplinary Hearing Notice dated 19 May 2017 is substantiated; (b) The substantiated conduct amounts to misconduct, as defined in s 1.4 of the *Police Service Administration Act* 1990; (c) In respect of the substantiated misconduct and pursuant to s.219L of the *Crime and Corruption Act* 2001; s.7.4(3) of the *Police Service Administration Act* 1990; and Regulation 5 of the *Police Service (Discipline) Regulations* 1990, the Applicant is sanctioned by means of his dismissal from the Queensland Police Service, with that dismissal wholly suspended pursuant to s.219L(3) of the *Crime and Misconduct Act* 2001, on condition that: (i) The Applicant does not commit any further acts of misconduct for an operational period of 2 years; (ii) The Applicant meets with a Human Services Officer nominated by the Respondent and participates in any alcohol management program as may be recommended.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where Constable dismissed upon conviction for criminal offences – whether sanction excessive – where decision maker erred in making findings beyond particulars of charged conduct – where decision maker did not attach sufficient weight to mitigating circumstances – diagnosed mental health condition contributing to impugned conduct – disciplinary principles applicable in the case of mental health conditions – role of suspended sanctions in appropriate cases Crime and Corruption Act 2001, s.219G, s.219H, s.219L Police Service Administration Act 1990, s.1.4, s.7.4 Police Service (Discipline) Regulations 1990, s.5 QCAT Act s.19, s.20, s.24 Aldrich v Ross [2001] 2 Qd R 235 Tolsher v Commissioner of Police Ian Stewart (No. 2) [2013] QCAT 590 Melling v O’Reilly, Misconduct Tribunal (Qld) (Appellate Division), Appeal No. 6 of 1991 Crime and Corruption Commission v Nikola and Hoffman (Misconduct Tribunal (Qld), Appeal No. 1 of 2007 Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-272 Mahon v Air New Zealand [1984] AC 808 Constable Mark Van v Deputy Commissioner McGibbon Misconduct Tribunal No 4 of 2001 Steven Chapman v Crime and Misconduct Commission & Anor [2012] QCATA Crime and Corruption Commission v Acting Deputy Commissioner Barron [2015] QCAT 96 Koekemoer v Deputy Commissioner Gollschewski [2016] QCAT 355 R v Gooder [2009] QCA 377 R v Yarwood [2011] QSC 367 Quinn v Law Institute of Victoria Limited [2007] VSCA 122 Flegg v CMC & Anor [2014] QCA 42
APPEARANCES and REPRESENTATION (if any):
APPLICANT:

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: [2018] QCAT 120
Decision Date: 27 April 2018

CaseChat Overview and Summary

In the case of Austin v Deputy Commissioner Peter Martin, the applicant, a police officer, appealed against his dismissal from the Queensland Police Service. The dismissal followed his conviction for criminal offences, which were considered to constitute misconduct under the Police Service Administration Act 1990. The crux of the dispute lay in whether the dismissal was an excessive sanction, given the mitigating circumstances surrounding the applicant's actions. The applicant contended that the decision-maker erred by making findings beyond the particulars of the charged conduct, and by not attaching sufficient weight to his diagnosed mental health condition, which was argued to have contributed to the misconduct. The court was tasked with determining whether the disciplinary principles applied in the case were appropriate, particularly in the context of mental health conditions, and whether a suspended sanction was a suitable alternative in this instance.

The court addressed several legal issues, including whether the decision-maker had correctly interpreted and applied the law in dismissing the applicant, and whether the sanction imposed was proportionate to the misconduct. Central to the court's consideration was whether the decision-maker's findings went beyond the particulars of the charged conduct, and whether the mitigating circumstances, particularly the applicant's mental health condition, should have been given more weight. The court also needed to assess the role of suspended sanctions in cases involving mental health, and whether such sanctions could be an appropriate alternative to outright dismissal.

The court found that the decision-maker had indeed erred by making findings beyond the particulars of the charged conduct and by not sufficiently considering the mitigating circumstances, particularly the applicant's diagnosed mental health condition. The court held that the sanction of dismissal was excessive, given the potential for rehabilitation and the applicant's otherwise unblemished service record. It was determined that a wholly suspended dismissal, with specific conditions attached, was a more appropriate sanction. This decision reflected the principles applicable to disciplinary actions involving mental health conditions and the role of suspended sanctions in such cases.

The court set aside the original decision of dismissal and substituted it with a decision that the misconduct was substantiated but that the appropriate sanction was a wholly suspended dismissal on certain conditions. These conditions included a requirement for the applicant to commit no further acts of misconduct for two years and to participate in an alcohol management program as recommended by a Human Services Officer. This outcome aimed to balance the need for accountability with the potential for rehabilitation, particularly considering the applicant's mental health condition.

Orders

Orders of the court

1. The decision of Deputy Commissioner Peter Martin made on 7 September 2017 is set aside.

2. The following decision is substituted:

(a) The improper conduct alleged as matters 1(a), 1(b), 1(c), & 1(d) in the Disciplinary Hearing Notice dated 19 May 2017 is substantiated;

(b) The substantiated conduct amounts to misconduct, as defined in s 1.4 of the Police Service Administration Act 1990;

(c) In respect of the substantiated misconduct and pursuant to s.219L of the Crime and Corruption Act 2001; s.7.4(3) of the Police Service Administration Act 1990; and Regulation 5 of the Police Service (Discipline) Regulations 1990, the Applicant is sanctioned by means of his dismissal from the Queensland Police Service, with that dismissal wholly suspended pursuant to s.219L(3) of the Crime and Misconduct Act 2001, on condition that:

(i) The Applicant does not commit any further acts of misconduct for an operational period of 2 years;

(ii) The Applicant meets with a Human Services Officer nominated by the Respondent and participates in any alcohol management program as may be recommended.

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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