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Cavanagh v Gollschewski (No 2)

Cavanagh v Gollschewski (No 2)

Case [2023] QCATA 36 12 April 2023

Judicial Review

Discipline and Dismissal

Driving While Intoxicated

Administrative Law

Criminal Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cavanagh v Gollschewski and anor (No 2) [2023] QCATA 36

PARTIES:

ISAAC CAVANAGH

(applicant/appellant)

v

STEPHEN GOLLSCHEWSKI

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

APL133-21

ORIGINATING APPLICATION NO/S:

OCR159-20

MATTER TYPE:

Appeals

DELIVERED ON:

12 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1. The decision of the Tribunal of 28 April 2021 is set aside.

2. The decision of the first respondent of 5 May 2020, that the appellant be dismissed from the Queensland Police Service, is set aside.

3. In place of that decision, the Tribunal decides that the appellant be suspended from duty without pay for twelve months, pursuant to s 7.34(b) of the Police Service Administration Act 1990 (Qld), the suspension to take effect from the date on which the decision of the first respondent took effect.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL – QUEENSLAND – determination of sanction – driving while intoxicated – driving police vehicle without authorisation – vehicle ran off road and damaged – subsequent inappropriate behaviour while intoxicated – consideration of mitigating factors including psychiatric condition – sanction imposed

Police Service Administration Act 1990 (Qld) s 7.34

Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151
Crime and Corruption Commission v McCarthy [2022] QCATA 106
O’Brien v Gollschewski [2014] QCATA 148
Price v Gee [2019] QCAT 179
Queensland Police Service v Compton (No 2) [2011] QCATA 246
Scott v Martin [2015] QCAT 423
Tolsher v Stewart (No 2) [2013] QCAT 590

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”)

Applicant:

C Gnech solicitor of Gnech and Associates

Respondents:

M Nicolson instructed by the Queensland Police Service Solicitors Office for the first respondent

J Rodriguez legal officer for the second respondent

REASONS FOR DECISION

In this matter on 1 December 2022 I allowed an appeal on a question of law against the confirmation of a disciplinary decision by the Tribunal, and granted leave to appeal so that the appeal could be conducted by way of rehearing: [2022] QCATA 166. The sanction imposed by the first respondent and confirmed by the Tribunal was to dismiss the appellant from the Queensland Police Service. I held that the Tribunal had made errors of law in rejecting the appellant’s psychiatric condition at the time as a mitigating factor. The effect of the grant of leave to appeal is that I exercise the discretion to impose a sanction afresh. After my decision was delivered the parties made further submissions in writing, which I have considered.

The relevant conduct

There was no contest as to the facts involved in the matter, or that the conduct of the appellant amounted to misconduct. The following is taken from the reasons of the first respondent dated 5 May 2020, the reasons of the Member,…

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.

Continue reading Cavanagh v Gollschewski (No 2)

Details

AGLC: Cavanagh v Gollschewski (No 2) [2023] QCATA 36
Case: [2023] QCATA 36
Decision Date: 12 April 2023

CaseChat Overview and Summary

The case of Cavanagh v Gollschewski (No 2) involved the appellant, a police officer, and the respondents, the Queensland Police Service and the Police Tribunal. The central issue in this appeal was the appropriateness of the sanction imposed on the appellant following an incident in which he drove a police vehicle while intoxicated, resulting in a crash and subsequent inappropriate behaviour. The appellant challenged the decision to dismiss him from the service, arguing that the sanction was disproportionate and should instead be a suspension without pay.

The court had to determine whether the dismissal was the correct sanction under the circumstances, considering the appellant's history, the circumstances of the incident, and the mitigating factors presented. These included the appellant's psychiatric condition, which was argued to have contributed to his actions on the day in question. The court also examined whether the Tribunal and the first respondent had correctly applied the law in reaching their decisions.

In its judgment, the court found that the Tribunal had erred in not adequately considering the mitigating factors and the appellant's psychiatric condition. The court held that the Tribunal should have given more weight to these factors when deciding on an appropriate sanction. The court concluded that dismissal was an excessive penalty and that a twelve-month suspension without pay was more appropriate. As a result, the court set aside the Tribunal's decision and substituted it with a twelve-month suspension without pay, effective from the date of the original dismissal.

Orders

Orders of the court

1. The decision of the Tribunal of 28 April 2021 is set aside.

2. The decision of the first respondent of 5 May 2020, that the appellant be dismissed from the Queensland Police Service, is set aside.

3. In place of that decision, the Tribunal decides that the appellant be suspended from duty without pay for twelve months, pursuant to s 7.34(b) of the Police Service Administration Act 1990 (Qld), the suspension to take effect from the date on which the decision of the first respondent took effect.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Cavanagh v Gollschewski (No 2) [2023] QCATA 36

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Cavanagh v Gollschewski
[2022] QCATA 166 Para 1

…t the confirmation of a disciplinary decision by the Tribunal, and granted leave to appeal so that the appeal could be conducted by way of rehearing: [2022] QCATA 166. The sanction imposed by the first respondent and confirmed by the Tribunal was to dismiss the appellant from the Queensland Police Service. I held t…
Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB
[2022] QCATA 106 Para 3

…In Crime and Corruption Commission v McCarthy [2022] QCATA 106 the officer was sanctioned for three incidents of inappropriate sexual conduct while on duty, and disobeying a direction not to contact a witness in relation to disciplinary matters. The Appeal Tribunal imposed a period of suspended dismissal with an op…
Cavanagh v Deputy Commissioner Gollshewski
[2021] QCAT 162 Para 1

…that the relevant conduct was serious misconduct. The appellant relied on a number of mitigating features, summarised in the reasons of the Member at [2021] QCAT 162, [10] – [12]: [10] Delay may be relevant to mitigation. In particular, it gives the Tribunal the opportunity to assess the officer’s behaviour in the…
Crime and Corruption Commission v Lee (No 2)
[2019] QCATA 151 Para 5

…In Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151 an experienced officer had failed to undertake a proper investigation of an allegation of assault by another police officer, including misrepresenting the effect of video evidence, leading to an inappropriate recommendation that no charge be brought.…
Price v Deputy Commissioner Gee
[2019] QCAT 179 Para 2

…In Price v Gee [2019] QCAT 179 the officer, who was said to have had a long and distinguished record, drank alcohol to excess on duty, and drove a police car at high speed, leading to a single vehicle accident where the car was written off. No-one was injured. On review a decision to dismiss him from the service w…
Austin v Deputy Commissioner Peter Martin
[2018] QCAT 120 Para 1

…red to a number of decisions of the Tribunal where serious misconduct has nevertheless not resulted in dismissal from the service. In Austin v Martin [2018] QCAT 120 the officer had, at a social function while off duty, assaulted a woman, damaged her mobile phone, assaulted her husband, and offered beer to a perso…
Hume v Keating
[2016] QCATA 67 Para 10

…In Hume v Keating [2016] QCATA 67 the sanction imposed for drink driving with a reading of 0.14 was a one point reduction in pay for twelve months, suspended on condition of completing one hundred hours community service. There were mitigating circumstances including medical evidence of depression, then untreated,…
Scott v Assistant Commissioner Peter Martin
[2015] QCAT 423 Para 9

…In Scott v Martin [2015] QCAT 423 the misconduct alleged and accepted was drink-driving, attending for duty affected by alcohol and lying to a superior about how she travelled there. She had initially returned a reading of 0.121, and was sent home, but when next reporting for work she admitted the conduct. The inc…
Legal Services Commissioner v Yarwood
[2015] QCAT 208 Para 4

…In that matter the Appeal Tribunal applied the general approach in Legal Services Commissioner v Yarwood [2015] QCAT 208, albeit in a non-binding way, although I note that that Tribunal did not consider the effect of the decision of the Victorian Court of Appeal in Quinn v Law Institute of Victoria Ltd (2007) 27 V…
O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service
[2014] QCATA 148 Para 8

…In O’Brien v Gollschewski [2014] QCATA 148 an officer drove her own car after a function while off duty and on testing recorded a reading of 0.07. She had considered the amount of alcohol consumed, and thought she was under the limit, but had miscalculated. She had an excellent record during seventeen years of serv…
Tolsher v Commissioner of Police Ian Stewart (No 2)
[2013] QCAT 590 Para 6

…st instance the Member referred in a footnote to a number of decisions of the Tribunal concerning drink driving cases.[3] In Tolsher v Stewart (No 2) [2013] QCAT 590 a senior sergeant was driving with a reading of .15 when stopped by two constables, whom he tried to persuade not to test him, conduct the Tribunal r…
Compton v Deputy Commissioner Ian Stewart Queensland Police Service
[2010] QCAT 384 Para 7

…a sanction of dismissal and substituted dismissal suspended for two years on stringent conditions,[4] confirmed on appeal by the Appeal Tribunal. [4][2010] QCAT 384.…
Quinn v Law Institute of Victoria Limited (No 2)
[2007] VSCA 132 Para 4

…208, albeit in a non-binding way, although I note that that Tribunal did not consider the effect of the decision of the Victorian Court of Appeal in Quinn v Law Institute of Victoria Ltd (2007) 27 VAR 1, discussed in my earlier decision. Since in the present case the factors listed in Yarwood ( supra ) are met, it is unnecessary for me to co…
[2011] QCATA 246
[2011] QCATA 246 Para 7

…In Queensland Police Service v Compton (No 2) [2011] QCATA 246 the officer was stopped when driving erratically and had a reading of 0.235, for which he was later convicted. He had served for less than two years. He did not attempt to avoid the consequences when stopped, was off duty, in his own vehicle, had caused…
Some additional information is given in the decision under appeal at
[2022] QCAT 529 Para 3

…n such general terms that it is difficult assess the significance of this.[2] [2]Some additional information is given in the decision under appeal at [2022] QCAT 529.…

Legislation cited in this decision · 2

Police Service Administration Act 1990 (Qld)
7.34 2 mentions (from Para 8)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
1 mention