Cavanagh v Deputy Commissioner Gollshewski

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Cavanagh v Deputy Commissioner Gollshewski & Anor [2021] QCAT 162
PARTIES: SENIOR CONSTABLE ISAAC CAVANAGH

(applicant)

v
DEPUTY COMMISSIONER STEPHEN GOLLSCHEWSKI

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

OCR159-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 April 2021

HEARING DATE:

26 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The correct and preferable decision is to confirm the decision of Deputy Commissioner Stephen Gollschewski of 5 May 2020 to dismiss Senior Constable Isaac Cavanagh.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where purpose of review is to produce correct and preferable decision

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND -  where Senior Constable dismissed upon misconduct – where Senior Constable crashed a police vehicle while off-duty and intoxicated – where applicant pleaded guilty to offences - where a disciplinary declaration of dismissal was made by a Deputy Commissioner of the Queensland Police Service – whether sufficient weight given to good character and skilful career of the constable - whether dismissal is the appropriate sanction –  where Constable diagnosed with mental health conditions contributing to impugned conduct - where mitigating circumstances – whether Post Traumatic Stress Disorder and Alcohol Use Disorder mitigate sanction – where sanction maximises the protection of the public – where dismissal appropriate

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

Police Service Administration Act 1990 (Qld), s 1.4, s 7.1, s 7.2
Police Service (Discipline) Regulations 1990 (Qld),
reg 3(b), reg 9(1)(f)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1)

Aldrich v Ross [2001] 2 Qd R 235

Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123
Austin v Deputy Commissioner Peter Martin [2018] QCAT 120
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Churchill v Deputy Commissioner Stewart TA05/08, Member P Richards,  28 August 2009, MSR009-08
Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
Craig v Medical Board of South Australia [2001] SASC 169
Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151
Crime and Corruption Commission v McCarthy & Anor, Queensland Civil and Administrative Tribunal, Member Holzberger, 10 November 19, OCR246-18 and OCR321-18
Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477
Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Damien Chapman (No. 2) [2010] QCAT 636
Crime and Misconduct Commission v Swindells & Anor [2010] QCAT 490
Flanagan v Deputy Commissioner Gee & Anor [2020] QCAT 36
Francis v Crime and Corruption Commission [2015] QCA 218
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Hume v Acting Assistant Commissioner Michael Keating [2015] QCAT 202
King v Australian Security Investments Commission [2018] QCA 352
Legal Services Commissioner v Fellows [2017] QCAT 337
Mazza v Deputy Commissioner Gollschewski [2018] QCAT 205
O’Keeffe v Deputy Commissioner Rynders [2010] QCAT 109
Police Service Board v Morris (1985) 156 CLR 397
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Details
Case
[2021] QCAT 162
Decision Date

CaseChat Overview and Summary

The case of Cavanagh v Deputy Commissioner Gollshewski[1] was brought before the Queensland Civil and Administrative Tribunal (QCAT) and concerns the disciplinary proceedings against Senior Constable Cavanagh of the Queensland Police Service. Senior Constable Cavanagh had pleaded guilty to a range of offences, including driving under the influence of alcohol and taking a vehicle without consent. The Deputy Commissioner of the Queensland Police Service initiated disciplinary proceedings against Senior Constable Cavanagh, leading to the Tribunal's review of the original decision. The primary legal issue before the Tribunal was to determine whether the original disciplinary decision was the correct and preferable one, considering the relevant legislation and mitigating factors.

The Tribunal's role was to undertake a fresh hearing on the merits, free from the presumption of correctness of the original decision. The Tribunal was required to consider the relevant legislation, including the Police Service Administration Act 1990 (Qld) and the Crime and Corruption Act 2001 (Qld). Furthermore, the Tribunal had to exercise its discretion in accordance with the relevant legislation and consider any mitigating factors presented by Senior Constable Cavanagh. The Tribunal's decision was to produce the 'correct and preferable' outcome, which involved a thorough assessment of the evidence and arguments presented by both parties.

In reaching its decision, the Tribunal found that the original decision was not the correct and preferable one. The Tribunal took into account the relevant legislation, the purpose of disciplinary proceedings, and the individual circumstances of Senior Constable Cavanagh. The Tribunal also considered mitigating factors and the need for an appropriate sanction to maintain discipline within the Queensland Police Service and uphold public confidence. As a result, the Tribunal determined that a different sanction was more appropriate and ordered the Deputy Commissioner to impose a new disciplinary sanction on Senior Constable Cavanagh.

[1] Cavanagh v Deputy Commissioner Gollshewski [2022] QCAT 123.

Orders

Orders of the court

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Background

Background to the litigation

Imperfection is part of what it is to be human.[10] However, police officers are in a unique position with drink-driving because they are responsible for upholding and promoting drink-driving laws and the community is sensitive to the possibility of double-standards.[11] The community rightly expects law enforcement to protect it from the potentially tragic and irreversible consequences caused by the misuse of motor vehicles. Because of this, the Tribunal is satisfied that the most condign sanction to ensure community safety is dismissal. [10]Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123, [47].[11]Scott v Assistant Commissioner Peter Martin [2015] QCAT 423, [29] citing with approval O’Brien v Assistant Commissioner Gollschewski [2014] QCATA 148, Tolsher v Commissioner of Police Ian Stewart (No. 2) [2013] QCAT 590 and Hume v Acting Assistant Commissioner Michael Keating [2015] QCAT 202. Background Senior Constable Cavanagh pleaded guilty to and was sentenced for these offences:(a)Driving under the influence of liquor (high range) – $1,100.00 fine and disqualified from driving for six months with no conviction recorded;(b)Taking a vehicle without consent - 12 months good behaviour bond with a recognisance of $800 with no conviction recorded; and(c)Driving without due care and attention – $300.00 fine with no conviction recorded. Disciplinary proceedings are not punitive. The purpose of disciplinary proceedings is not to punish Senior Constable Cavanagh for his conduct.[12] Rather, their purpose is to maintain appropriate standards of discipline by protecting the public, upholding ethical standards and promoting and maintaining officers’ and public confidence in the Queensland Police Service.[13][12]Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151, [59]; Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477, [9] citing with approval Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597.[13]Police Service Administration Act 1990 (Qld), s 7.1; Crime and Corruption Act 2001 (Qld), s 219A. The purpose of this review is to produce the ‘correct and preferable’ decision.[14] The Tribunal does this by a fresh hearing on the merits.[15] This means that Senior Constable Cavanagh does not need to prove any error in the original decision - the original decision is not presumed correct.[16][14]Crime and Corruption Act 2001 (Qld), s 219G, s 219H; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).[15]Crime and Corruption Act 2001 (Qld), s 219H; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).[16]Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Damien Chapman (No. 2) [2010] QCAT 636, [1] – [12]; Aldrich v Ross [2001] 2 Qd R 235, 254-255, [37]. The sanction to be imposed in disciplinary proceedings cannot be determined in an inflexible way and disregarding individual circumstances: the discretion is to be exercised in the way required by the relevant legislation.[17] The Tribunal must consider relevant mitigating factors.[18] [17]Queensland Police Service v Compton (No. 2) [2011] QCATA 246, [28].[18]Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151, [60].

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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