Crime and Corruption Commission v Assistant Commissioner Maurice Careless

[2023] QCAT 56

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission v Assistant Commissioner Maurice Careless & Anor  [2023] QCAT 56

PARTIES:

Crime and corruption commission

(applicant)

v

assistant COMMISSIONER Maurice careless

(first respondent)

v

SENIOR CONSTABLE BKA

(second respondent)

APPLICATION NO/S:

OCR207-20

MATTER TYPE:

Review

DELIVERED ON:

16 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The application is listed for a final hearing on a date to be advised to the parties.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – PRACTICE AND PROCEEDURE – where applicant sought review of the first respondent’s decision on sanction – where review Tribunal varied the sanction imposed by the first respondent – where the applicant appealed the Tribunal’s decision – where appeal Tribunal set aside the primary decision and ordered a rehearing – where the second respondent resigned his employment before the appeal was determined – where parties disagree as to the future conduct of the proceeding – whether the Tribunal should invite the second respondent to reconsider the decision on sanction – whether the matter should proceed according to law as directed by the appeal Tribunal.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 23, s 24 and s 46.
Police Service Administration Act 1990 (Qld), s 7.4

Crime and Corruption Commission v Deputy Commissioner Maurice Carless [2022] QCATA 121

APPEARANCES AND REPRESENTATION:

This application was heard and determined on the papers.

REASONS FOR DECISION

Background

1. The second respondent is a former police officer who was the subject of internal disciplinary proceedings because he engaged in misconduct between March 2016 and June 2019. The first charge related to accessing the QPS computer system without an official purpose. The second charge was for driving a marked police vehicle while taking non-prescribed prescription drugs for pain relief and making inappropriate comments relating to a child, which were recorded on his body worn camera.

2. Assistant Commissioner Careless, found both charges substantiated and imposed a sanction of 12 months probation with conditions. The Crime and Corruption Commission considered the sanction was inadequate and sought a review of the decision of the Deputy Commissioner in the Tribunal. On 23 September 2021 the Tribunal varied the decision of the Deputy Commissioner and imposed a sanction of 3 years probation with conditions. The Commission appealed that decision to the Appeal Tribunal. On 12 August 2022 the Appeal Tribunal set aside the primary decision of 23 September 2021, principally on the ground that the sanction imposed of 3 years probation was not permitted because under s 7.4 of the Police Service Administration Act only a 12-month probationary period could be imposed. It provided:

   7. 4        Disciplinary Sanction

   (1)         Each of the following sanctions is a disciplinary sanction –

   (a)       dismissal;

   (b)       suspension from duty without pay for not longer than 12 months;

   (c)       probation for not longer than 12 months;

   Note –

   See also section 7.36 in relation to probation

   (d)      demotion, whether permanently or for a stated period;

   (e)       comprehensive transfer;

   (f)       local transfer;

   (g)       performance of up to 100 hours of community service;

   Note-

   See also section 7.39 in relation to community service.

   (h)       a fine of up to 50 penalty units;

   Note –

   See also section 7.40 in relation to fines

3. There were other grounds for allowing the appeal including the exercise of discretion in imposing the sanction. The learned Senior Member who heard the appeal considered the appropriate course was to remit the proceeding back to the Tribunal for “reconsideration according to law”.[1]

   [1]  Crime and Corruption Commission v Assistant Commissioner Careless & Anor [2022] QCATA 121 at [72]

4. Between the decision being handed down in the primary hearing on 23 September 2021 and the decision in the appeal on 12 August 2021, the second respondent resigned from the Queensland Police Service. The resignation came after the hearing of the appeal on 3 May 2022.

5. The question has now arisen, because of the second respondent’s resignation, as to how the Tribunal should proceed with this application to review the decision of the Deputy Commissioner. The parties are in disagreement as to the future conduct of the proceeding.

6. Because of this dispute it has been directed that there should be a determination, on the papers, as to the future conduct of the proceeding. The Commission contends that the Tribunal should invite the Deputy Commissioner to reconsider the sanction in light of the appeal decision, and the second respondent supports this approach. The Deputy Commissioner contends the review hearing should proceed in accordance with decision of the Appeal Tribunal.

7. The direction of the Appeal Tribunal that there should be a reconsideration according to law means that the proceeding must now be conducted as prescribed by the Queensland Civil and Administrative Tribunal Act, and the enabling Act, the Crime and Corruption Act. The relevant provisions of the QCAT Act are contained in Chapter 2 Division 3, which requires the Tribunal to produce the correct and preferable decision by way of a fresh hearing on the merits, s 20. However, the evidence in the review proceeding is restricted to the evidence before the Deputy Commissioner at the time of making the disciplinary decision. Given the passage of time the learned Senior Member in the appeal observed that the second respondent should have the opportunity to seek leave to lead further evidence. Of course, she was not aware at the time of giving her decision of the second respondent’s resignation so one can only speculate as to what evidence would now be relevant.

8. The Commission submits that the best course forward is for the Tribunal to make a decision under s 23 of the QCAT Act to invite the decision maker to reconsider the decision on sanction. Importantly, it is a matter for the Tribunal as to whether it does so or not. The section simply provides that:

   (1)    At any stage of a proceeding for a review of a reviewable decision, the Tribunal may invite the decision-maker for the decision to reconsider the decision.

9. If the invitation is extended then under s 23(2) the decision-maker can, within 28 days, confirm the decision; amend the decision; set aside the decision and make a new decision. If the decision is confirmed, then the review proceeding is to continue. However, there are complications because the second respondent is no longer an “officer” in the Queensland Police Service.

10. The Commission submits this is the preferable course in the circumstances, because there is no clear legislative mechanism available whereby the Tribunal can now impose a sanction on an officer who has resigned from service prior to the resolution of the disciplinary proceedings.[2] Be that as it may, but as provided for by s 20 of the QCAT Act it is not the Tribunal who imposes the sanction, its role is to produce the ‘correct and preferable’ decision. It is for the Deputy Commissioner to impose the sanction whatever it may be.

    [2]           Applicant’s submissions paragraph 6

11. The other reason why the Commission submits that the Tribunal should invite a reconsideration is because if the Deputy Commissioner makes a different decision:

    a.the applicant may either continue to review the amended decision, or withdraw the application for review;

    b.upon the applicant withdrawing, the proceeding will conclude, with the amended decision being substituted for the original decision.

12. The Commission further supports the argument on the basis that both the primary decision and the appeal decision considered the initial sanction was not appropriate given the severity of the conduct. Again, accepting that to be the case, it is not binding on any future decision maker conducting the review but a consideration only.

13. Now that the matter has been remitted back for determination according to law, the Commission submits that it questionable whether it can now withdraw the review application. Despite this submission, there does not seem to be any impediment to it being able to withdraw under s 46(1) of the QCAT Act or Rule 57A. Even though leave to withdraw is not required as this application does not fall within Rule 57(A)(2), however if there is concern the Commission is at liberty to apply for leave should it so chose. Again, by reference to the Appeal Tribunal’s direction, any rehearing will again be a fresh hearing on the merits.

14. The Deputy Commissioner acknowledges that the circumstances of the second respondent’s resignation from the QPS does causes some uncertainty as to the utility of reconsideration when the options are limited. Practically speaking this is so when one has regard to the sanctions that can be imposed under the s 7.4 of the PSA Act. Part 7 Division 5 relates to the imposition of sanctions on serving officers.[3] The options then for the Tribunal under s 24 of the QCAT Act would only be to confirm the decision or set it aside. If it were to go back to the Deputy Commissioner, then presumably his power to amend the decision is also limited. If he were to confirm the decision, then this review application would proceed. It is unlikely, in the circumstances and given the findings of the Tribunal at first instance and on appeal, the decision would be set aside.

    [3]           “officer” is defined in 1.4 of the PSA Act and includes a recruit.

15. It seems to me that the best course is for this review application to proceed to a final hearing. This will bring finality to the matter, whereas if it is referred back to the Deputy Commissioner the proceeding will be delayed further while this process is being undertaken. All parties can then make submissions as to the correct and preferable decision bearing in mind the limitations on what the Tribunal can do under s 24 because of the resignation of the second respondent. This approach is consistent with the objects set out in s 3 of the QCAT Act.

16. The evidence in the primary hearing will be the evidence in the rehearing. If either party intends to lead any further evidence they are at liberty to apply to do so in the usual way.

17. The application will be listed for final hearing, before me, on a date to be advised to the parties.