Crime and Corruption Commission v Lee [2019] QCATA 38
PARTIES:
CRIME AND CORRUPTION COMMISSION (applicant/appellant)
v
ANTHONY WILLIAM LEE
(respondent)
APPLICATION NO/S:
APL021-18
ORIGINATING APPLICATION NO/S:
OCR096-16
MATTER TYPE:
Appeals
DELIVERED ON:
10 May 2019
HEARING DATE:
23 November 2018
HEARD AT:
Brisbane
DECISION OF:
Justice Daubney, President Member Browne
ORDERS:
1. Leave to appeal is granted.
2. Appeal allowed.
3. Leave to cross-appeal is refused.
4. The Tribunal’s decision of 22 December 2017 that the application for disciplinary orders is dismissed is set aside and the following decision is substituted:
Anthony William Lee engaged in conduct that is corrupt conduct pursuant to s 15 of the Crime and Corruption Act2001 (Qld) (“CC Act”).
THE APPEAL TRIBUNAL DIRECTS THAT:
5. The Crime and Corruption Commission must file in the Tribunal three (3) copies and give to Anthony William Lee one (1) copy of any written submissions in relation to the appropriateness of any order to be made following the finding of corrupt conduct against Anthony William Lee pursuant to s 219I of the CC Act, by:
4:00pm on 24 May 2019.
6. Anthony William Lee must file in the Tribunal three (3) copies and give to the Crime and Corruption Commission one (1) copy of any written submissions in response, by:
4:00pm on 7 June 2019.
7. The Crime and Corruption Commission must file in the Tribunal three (3) copies and give to Anthony William Lee one (1) copy of any written submissions in reply, by
4:00pm on 21 June 2019.
8. Unless otherwise ordered, the Appeal Tribunal will determine the final orders to be made against Anthony William Lee pursuant to s 219I of the CC Act, by written submissions of the parties, on the papers and without a further oral hearing on a date not before 24 June 2019.
CATCHWORDS:
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where the Crime and Corruption Commission filed an application for disciplinary orders in the Tribunal’s original jurisdiction seeking a finding of corrupt conduct – where the respondent police officer did not give evidence – where the Tribunal applied the principles in Jones v Dunkel (1959) 101 CLR 298 – where the Tribunal made findings of fact about the conduct – where the Tribunal made findings about the respondent’s motive for his conduct – where the Tribunal was not satisfied all of the elements of s 15 of the Crime and Corruption Act2001 (Qld) have been met – where the Tribunal dismissed the application for disciplinary orders – whether error in the Tribunal’s assessment of the evidence and findings made – whether error in the Tribunal’s findings and application of the principles in Jones v Dunkel
APPEAL AND NEW TRIAL – NEW TRIAL – where error in the Tribunal’s decision – where Tribunal made findings contrary to the principle in Jones v Dunkel (1959) 101 CLR 298 – where error of mixed fact…
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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Crime and Corruption Commission v Lee [2019] QCATA 38
Case
[2019] QCATA 38
Decision Date
CaseChat Overview and Summary
The Crime and Corruption Commission filed an application for disciplinary orders against Anthony William Lee, a police officer, alleging that he engaged in corrupt conduct. Lee did not give evidence during the proceedings. The Tribunal dismissed the application, finding that not all elements of the definition of "corrupt conduct" were met. The Commission appealed this decision. The appeal was about whether the Tribunal erred in its assessment of the evidence and findings made, and whether it correctly applied the principles in Jones v Dunkel.
The Court examined whether the Tribunal made findings contrary to the principle in Jones v Dunkel. It found that the Tribunal did indeed make findings contrary to this principle, leading to an error of mixed fact and law. The Court allowed the appeal, setting aside the Tribunal's decision and substituting its own. The Court found that Lee engaged in conduct that amounted to corrupt conduct under s 15 of the Crime and Corruption Act 2001 (Qld).
The Court's final orders included granting leave to appeal, allowing the appeal, and setting aside the Tribunal's decision. It directed that the Commission file submissions regarding the appropriate orders to be made following the finding of corrupt conduct, and that Lee respond to these submissions. The Court scheduled a date by which the final orders would be determined.
Orders
Orders of the court
1. Leave to appeal is granted.
2. Appeal allowed.
3. Leave to cross-appeal is refused.
4. The Tribunal’s decision of 22 December 2017 that the application for disciplinary orders is dismissed is set aside and the following decision is substituted:
Anthony William Lee engaged in conduct that is corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) (“CC Act”).
THE APPEAL TRIBUNAL DIRECTS THAT:
5. The Crime and Corruption Commission must file in the Tribunal three (3) copies and give to Anthony William Lee one (1) copy of any written submissions in relation to the appropriateness of any order to be made following the finding of corrupt conduct against Anthony William Lee pursuant to s 219I of the CC Act, by:
4:00pm on 24 May 2019.
6. Anthony William Lee must file in the Tribunal three (3) copies and give to the Crime and Corruption Commission one (1) copy of any written submissions in response, by:
4:00pm on 7 June 2019.
7. The Crime and Corruption Commission must file in the Tribunal three (3) copies and give to Anthony William Lee one (1) copy of any written submissions in reply, by
4:00pm on 21 June 2019.
8. Unless otherwise ordered, the Appeal Tribunal will determine the final orders to be made against Anthony William Lee pursuant to s 219I of the CC Act, by written submissions of the parties, on the papers and without a further oral hearing on a date not before 24 June 2019.
Background
Background to the litigation
We are satisfied that this matter raises a question of general importance about the application of the principle in Jones v Dunkel and the inferences that can be made by the Tribunal in exercising its original jurisdiction, including whether it is open to the Tribunal as the trier of fact to make findings or draw inferences from the evidence in circumstances where the respondent, in this case Lee, has elected not to give evidence in the proceedings, and where such evidence would not have assisted him. Leave to appeal should be granted.Background facts It is convenient to adopt the following statement of the background:[11][11]See submissions of the appellant dated 25 May 2018 and outline of submissions for the respondent filed 10 September 2018, and omitting footnotes.·On 21 January 2008, Lee was assigned the task of investigating Ms Toms’ complaint against Price. Lee was given a full copy of a Compass Summary Report. The Summary of Precis on the first page of the report included a statement that: “The Concerned Party [Ms Toms] has had her version recorded on the tape and confirmed she wished to make a complaint. Watchhouse video tape was viewed and verified parts of the [Ms Toms’] version”. ·On the same day, Lee received an email from Professional Practice Manager (PPM) Howe directing him to, amongst other things, speak with Ms Toms and view any footage.·Between 21 January 2008 and 1 May 2008, Lee did little to pursue the investigation. There is inconsistent evidence in relation to Lee’s contact with Ms Toms. Lee did not contact two other officers that were relevant to the investigation.·On 8 February 2008, Lee had a conversation with Price. The nature, content and extent of the conversation was in issue.·On 8 February 2008 and then again some weeks after 8 February 2008, Inspector O’Connell informed Lee that he had seen the video and had concerns about it. Inspector O’Connell said words to the effect “well you’ll have a look at it and you’ll see why, why this matter’s not good”.·Despite being directed to review the CCTV footage by PPM Howe, knowing that the footage existed and being informed of its adverse content by the Summary of Precis and by Inspector O’Connell, Lee did not watch or did not watch all of the CCTV footage and gave inconsistent evidence on the matter.·On 26 February 2008, Lee emailed a preliminary report to PPM Howe. That report noted:a) He had been unsuccessful in attempting to contact Toms;b) He had viewed the CCTV footage and that it corroborated Price’s version; andc) He recommended that no further action be taken with regards to the complaint until the court action concerning Toms was finalised.·On 30 April 2008, Toms pleaded guilty in writing and the charges were dealt with by the relevant Magistrates’ Court.·On 1 May at 10:19 am, Inspector O’Connell forwarded an email to Lee reporting on the determination of Toms’ proceedings. The email stated inter alia: “She did not appear – pleaded guilty in writing – but claimed the police had lied in the statement about what had occurred – but insisted she wanted to plead guilty.”·At 10:46 am, Lee sent an email to Inspector Batterham recommending that Price be exonerated. He stated:“It appears that the complainant is not interested in pursuing her complaint as 1) she did not appear in court 2) does not answer her mobile phone which is the only point of contact as she has moved from the Airlie Beach area.”·On 17 May 2008, PPM Wood emailed Lee directing him to conduct further inquiries including obtaining a full version of events from Toms and the other arresting officers and report on the video footage.·Lee took no further steps to investigate the proceedings.·On 24 May 2008, Price assaulted another watchhouse prisoner. On the same day, the Ethical Standards Command took over the investigation from Lee.·Lee participated in a first interview about his conduct on 5 August 2008.·Lee participated in a second interview about his conduct on 16 March 2011. ·The accounts provided by Lee differed in various respects as between his first interview and his second interview, and as between his interviews and the documents.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Accordingly, the s 15(c) element of the definition of “corrupt conduct” is satisfied in this case. Conclusion It follows that, with the unchallenged findings below and this Appeal Tribunal’s finding on s 15(c), all elements of s 15 are satisfied in this case. There will therefore be a finding that Lee engaged in corrupt conduct. There will be orders to that effect. Having made those orders, it will be necessary to hear from the parties as to the necessary orders to be made consequent upon the finding of corrupt conduct. The Appeal Tribunal makes directions accordingly.