Crime and Corruption Commission v Carless - [2019] QCAT 50

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:
Crime and Corruption Commission v Carless & Anor

[2019] QCAT 50

PARTIES:
CRIME AND CORRUPTION COMMISSION

(applicant)

v

ACTING DEPUTY COMMISSIONER MAURICE CARLESS

PLAIN CLOTHES SENIOR CONSTABLE DAMIEN JAY ANDERSEN

(respondents)

APPLICATION NO/S: OCR082-18

MATTER TYPE: Occupational regulation matters

DELIVERED ON: 5 March 2019

HEARING DATE: 10 October 2018

HEARD AT: Brisbane

DECISION OF: Member Paratz

ORDERS:
1.       The decision of Acting Deputy Commissioner Maurice Carless, made on 19 March 2018, in respect of sanction, is set aside.

2.       The decision as to sanction is substituted that:

(a) Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 5 to Senior Constable paypoint 1 for a period of 12 months, and

(b) Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would then have been if the reduction had not occurred, subject to normal industrial arrangements, and

(c) Plain Clothes Senior Constable Damien Jay Andersen is to complete the Managerial Strategy as set out in the Notice of Formal Finding dated 19 March 2018.

CATCHWORDS:
POLICE     –     INTERNAL     ADMINISTRATION     – DISCIPLINE AND DISMISSAL FOR MISCONDUCT

– QUEENSLAND – where a sanction was imposed by an Acting Deputy Commissioner on a police officer for

misconduct – where an application for review of the sanction was made by the Crime And Corruption Commission – where an off duty police officer was removed from licensed premises for harassing patrons, and struggled with security staff and police – whether the sanction was adequate – where the approach towards police discipline was discussed

Police Service Administration Act 1990 (Qld), s 1.4

Austin v Deputy Commissioner Peter Martin [2018] QCAT 120

Crime And Misconduct Commission v Deputy Commissioner Stuart and Anor (No 2) [2012] QCAT 382 Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82

Mackenzie v Acting Assistant Commissioner Wright
[2011] QCATA 309

APPEARANCES & REPRESENTATION:

Applicant: J Gorry of Counsel, instructed by the Crime And Corruption Commission

Respondent:
I Fraser (QPS Legal Unit – for Acting Deputy Commissioner Maurice Carless)

C Gnech (Queensland Police Union Legal Group – for Plain Clothes Senior Constable Damien Jay Andersen)

REASONS FOR DECISION

Acting Deputy Commissioner Maurice Carless (‘QPS’) made a decision on 19 March 2018 imposing a sanction on Plain Clothes Senior Constable Damien Jay Andersen (‘the officer’) following a disciplinary hearing which proceeded on the papers.
The Crime and Corruption Commission (‘the Commission’) filed an Application to review the decision on 3 April 2018. The orders sought by the commission are as follows:
1. The decision of the first respondent as to sanction be set aside pursuant to section 24 (1) (b) of the Queensland Civil and Administrative Tribunal Act 2009; and

2. The Tribunal substitute the correct and preferable decision.

The application was heard on 10 October 2018 in the Tribunal. This is the review decision.

The decision of the QPS

The matter that was the subject of the disciplinary hearing was as follows:
That…

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: [2019] QCAT 50
Decision Date: 5 March 2019

CaseChat Overview and Summary

In the case of Crime and Corruption Commission v Carless, the issue at hand was the adequacy of a disciplinary sanction imposed on a police officer for misconduct. The respondent, Plain Clothes Senior Constable Damien Jay Andersen, was sanctioned by an Acting Deputy Commissioner following an incident where he was removed from licensed premises for harassing patrons, and subsequently struggled with security staff and police. The Crime and Corruption Commission applied for a review of the sanction, arguing that it was inadequate.

The court was tasked with determining whether the sanction imposed was adequate in light of the misconduct. It was also necessary to consider the broader approach towards police discipline, taking into account the principles of fairness, consistency, and proportionality. The court was required to weigh the seriousness of the misconduct against the sanction imposed, and determine whether the Acting Deputy Commissioner had exercised his discretion properly in imposing the sanction.

In reaching its decision, the court found that the Acting Deputy Commissioner had failed to consider the relevant principles and had imposed a sanction that was not commensurate with the seriousness of the misconduct. The court emphasised the need for a fair and consistent approach to police discipline, and noted that the sanction imposed should reflect the gravity of the misconduct and serve to maintain public confidence in the police force. Consequently, the court set aside the decision of the Acting Deputy Commissioner and substituted a different sanction, which involved a reduction in paypoint and the completion of a Managerial Strategy.

The court's final orders included setting aside the original sanction imposed by the Acting Deputy Commissioner and substituting a new sanction that involved a reduction in paypoint and the completion of a Managerial Strategy. The new sanction was deemed to be more appropriate given the circumstances of the misconduct, and aimed to uphold the principles of fairness, consistency, and proportionality in police discipline.

Orders

Orders of the court

1. The decision of Acting Deputy Commissioner Maurice Carless, made on 19 March 2018, in respect of sanction, is set aside.

2. The decision as to sanction is substituted that:

(a) Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 5 to Senior Constable paypoint 1 for a period of 12 months, and

(b) Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would then have been if the reduction had not occurred, subject to normal industrial arrangements, and

(c) Plain Clothes Senior Constable Damien Jay Andersen is to complete the Managerial Strategy as set out in the Notice of Formal Finding dated 19 March 2018.

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.

CITATION:	Crime and Corruption Commission v Carless & Anor [2019] QCAT 50
PARTIES:	CRIME AND CORRUPTION COMMISSION (applicant)
v
ACTING DEPUTY COMMISSIONER MAURICE CARLESS PLAIN CLOTHES SENIOR CONSTABLE DAMIEN JAY ANDERSEN (respondents)
APPLICATION NO/S:	OCR082-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	5 March 2019
HEARING DATE:	10 October 2018
HEARD AT:	Brisbane
DECISION OF:	Member Paratz
ORDERS:	1. The decision of Acting Deputy Commissioner Maurice Carless, made on 19 March 2018, in respect of sanction, is set aside. 2. The decision as to sanction is substituted that: (a) Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 5 to Senior Constable paypoint 1 for a period of 12 months, and (b) Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would then have been if the reduction had not occurred, subject to normal industrial arrangements, and (c) Plain Clothes Senior Constable Damien Jay Andersen is to complete the Managerial Strategy as set out in the Notice of Formal Finding dated 19 March 2018.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where a sanction was imposed by an Acting Deputy Commissioner on a police officer for

Police Service Administration Act 1990 (Qld), s 1.4 Austin v Deputy Commissioner Peter Martin [2018] QCAT 120 Crime And Misconduct Commission v Deputy Commissioner Stuart and Anor (No 2) [2012] QCAT 382 Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 Mackenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
APPEARANCES & REPRESENTATION:
Applicant:	J Gorry of Counsel, instructed by the Crime And Corruption Commission
Respondent:	I Fraser (QPS Legal Unit – for Acting Deputy Commissioner Maurice Carless) C Gnech (Queensland Police Union Legal Group – for Plain Clothes Senior Constable Damien Jay Andersen)