Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 106
PARTIES: Crime and Corruption commission

(applicants)

v
assistant commissioner alan mccarthy
psb

(respondents)

APPLICATION NO/S:

APL370-20

ORIGINATING APPLICATION NO/S:

OCR246-18; OCR321-18

MATTER TYPE:

Appeals

DELIVERED ON:

8 July 2022

HEARING DATE:

15 November 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1.   The appeal is allowed.

2.   The decision of the Tribunal is set aside;

3.   Matter 4 is substantiated;

4.   (i) PSB is dismissed.

(ii) The dismissal is suspended for the period of two years effective from 10 November 2020, on the condition that PSB does not commit any further act of misconduct similar to Matters 1, 2 or 3 during the period of suspension.

5. (i) Unless otherwise ordered, 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 APL 370-20 is prohibited;

(ii) Any party may give to the Appeal Tribunal and each other party written submissions about whether a final non-publication order should be made or its terms within 21 days of this decision;

(iii) Unless otherwise ordered, the Appeal Tribunal will make a final determination about whether to make a non-publication order, and if so the terms of any order, on the papers and without an oral hearing, not before 28 days from the date of this decision.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT – IN GENERAL - POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND - appeal of disciplinary order of demotion - whether the Tribunal erred in its application of Aldrich v Ross – whether the sanction imposed achieved the purposes of discipline – whether the Tribunal erred in mitigating the sanction based on a mental health diagnosis of PTSD – where the Appeal Tribunal gave the decision that ought have been given by the Tribunal below - where Appeal Tribunal imposed global sanction for all substantiated disciplinary matters

Crime and Corruption Act 2001 (Qld) (‘CCC Act’) s 219A, s 219H

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1), s 20(2)

Albrecht v Ainsworth & Ors [2015] QCA 220

Aldrich v Ross [2000] 2 Qd R 235

Allesch v Maunz (2000) 203 CLR 172

Austin v Deputy Commissioner Peter Martin [2018] QCAT 120

Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621

Briginshaw v Briginshaw 1938 60 CLR 336

Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169

CMC v Deputy Commissioner Barnett [2013] QCAT 477

Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384

Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510

Crime and Corruption Commission v McCarthy & Anor

Crime and Misconduct Commission v Deputy Commissioner and…

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Details
Case
[2022] QCATA 106
Decision Date

CaseChat Overview and Summary

The parties in this case are the Crime and Corruption Commission, acting as the appellant, and Assistant Commissioner McCarthy and PSB, the respondents. The dispute concerns a disciplinary order of demotion issued by the Queensland Civil and Administrative Tribunal against Assistant Commissioner McCarthy and PSB. The Queensland Court of Appeal was tasked with reviewing the Tribunal's decision and any errors it may have made. The central legal issues for the court were whether the Tribunal erred in its application of the principles from Aldrich v Ross, whether the sanction imposed achieved the purposes of discipline, and whether the Tribunal erred in mitigating the sanction based on a mental health diagnosis of PTSD. The court was also required to consider whether the Appeal Tribunal gave the decision that ought to have been given by the Tribunal below and if the Appeal Tribunal correctly imposed a global sanction for all substantiated disciplinary matters.

The Court of Appeal found that the Tribunal had indeed erred in its application of the principles from Aldrich v Ross and that the sanction imposed did not achieve the purposes of discipline. The Appeal Tribunal also erred in mitigating the sanction based on the mental health diagnosis of PTSD. The Appeal Tribunal gave the decision that ought to have been given by the Tribunal below and correctly imposed a global sanction for all substantiated disciplinary matters. Consequently, the appeal was allowed, the decision of the Tribunal was set aside, and Matter 4 was substantiated. Assistant Commissioner McCarthy and PSB were dismissed, but the dismissal was suspended for a period of two years on the condition that no further acts of misconduct similar to Matters 1, 2, or 3 were committed during the suspension period. Additionally, the court prohibited the publication of names and any information that may tend to identify the respondents and any third parties, except for the original decision-maker and investigating officers, for the disciplinary matters in the proceeding. Any party may give written submissions about whether a final non-publication order should be made or its terms within 21 days of this decision, and the Appeal Tribunal will make a final determination about whether to make a non-publication order and if so, the terms of any order, on the papers and without an oral hearing, not before 28 days from the date of this decision.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal is set aside;

3. Matter 4 is substantiated;

4. (i) PSB is dismissed.

(ii) The dismissal is suspended for the period of two years effective from 10 November 2020, on the condition that PSB does not commit any further act of misconduct similar to Matters 1, 2 or 3 during the period of suspension.

5. (i) Unless otherwise ordered, 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 APL 370-20 is prohibited;

(ii) Any party may give to the Appeal Tribunal and each other party written submissions about whether a final non-publication order should be made or its terms within 21 days of this decision;

(iii) Unless otherwise ordered, the Appeal Tribunal will make a final determination about whether to make a non-publication order, and if so the terms of any order, on the papers and without an oral hearing, not before 28 days from the date of this decision.

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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