Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB - [2025] QCATA 33

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2025] QCATA 33

PARTIES:

CRIME AND CORRUPTION COMMISSION

(applicant)

v

ASSISTANT COMMISSIONER ALLAN MCCARTHY

(first respondent)

PSB

(second respondent)

APPLICATION NO/S:

APL370-20

ORIGINATING APPLICATION NO/S:

OCR246-18; OCR321-18

MATTER TYPE:

Appeals

DELIVERED ON:

24 April 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM

ORDERS:

1. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and any information that may tend to identify PSB and any third parties other than the original decision-maker and investigating officers for the disciplinary matters in the proceeding APL370-20 is prohibited.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where applicant is a service police officer – where applicant suffers from PTSD – where non-publication order has been in place for five years – whether there are ‘special circumstances’ – whether final non-publication order should be made

Police Service Administration Act 1990, s 7.1

Queensland Civil and Administrative Tribunal Act 2009, s 3, s 66, s 90

Crime and Corruption Commission v Acting Deputy Commissioner Wright (No. 2) [2021] QCAT 304

Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106
Legal Services Commissioner v XBN [2016] QCAT 471

Re Bowen [1996] 2 Qd R 8

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

The issue for determination is whether a final non-publication order should be made in the terms imposed by the Appeal Tribunal. The Appeal Tribunal noted that the Tribunal had:[1]
prohibited publication of any information identifying PSB (the second respondent), and all third parties. Pursuant to s 66 of the QCAT Act, on my initiative, I make an order, unless otherwise ordered, in similar terms regarding the non-publication of any information identifying or tending to identify PSB or any third parties excluding officers who conducted the investigation and disciplinary process.
[1]Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106, [127].
Having regard to the submissions of the applicant and the second respondent, as set out below, it is only necessary to determine if the second respondent should be included in the final non-publication order.

History

The second respondent is a serving police officer, who was the subject of disciplinary proceedings. The findings of the Tribunal were appealed by the applicant to QCAT.
It is not necessary to revisit the second respondent’s conduct or the findings and sanction of the Appeal Tribunal, except as necessary, to address the issue for determination. It is sufficient to say that the Appeal Tribunal set aside the decision of the Tribunal and imposed a sanction of dismissal, suspended for two years.
On 8 July 2022, the Appeal Tribunal made orders allowing the appeal, and setting aside the…

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: [2025] QCATA 33
Decision Date: 24 April 2025

CaseChat Overview and Summary

In the case of Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB, the applicant, a service police officer, appealed against a decision to lift a non-publication order that had been in place for five years. The Queensland Civil and Administrative Tribunal (QCAT) was the forum for this appeal, with the tribunal's decision being reviewed by the Court of Appeal. The primary concern was whether there were 'special circumstances' that warranted the continuation of the non-publication order.

The legal issues before the court centred on the interpretation of the term 'special circumstances' within the context of the non-publication order. The applicant argued that the disclosure of their identity could result in significant psychological harm due to their existing post-traumatic stress disorder (PTSD). The respondent, the Crime and Corruption Commission, contended that the public interest in transparency and accountability outweighed the applicant's privacy concerns.

The court found that the term'special circumstances' required a high threshold to be met, considering the public interest in open justice and the right to privacy of individuals involved in disciplinary proceedings. It determined that, given the five-year duration of the non-publication order and the absence of any new evidence or change in circumstances, the balance had shifted towards the public interest in disclosure. Consequently, the court dismissed the appeal and lifted the non-publication order, except for the names and any identifying information of the applicant, PSB, and any third parties other than the original decision-maker and investigating officers.

Orders

Orders of the court

1. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and any information that may tend to identify PSB and any third parties other than the original decision-maker and investigating officers for the disciplinary matters in the proceeding APL370-20 is prohibited.

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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