Crime and Corruption Commission v Lee (No 2) - [2019] QCATA 151

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151

PARTIES: CRIME AND CORRUPTION COMMISSION

(appellant)

v

ANTHONY WILLIAM LEE

(respondent)

APPLICATION NO/S:

APL021-18

ORIGINATING APPLICATION NO/S:

OCR096-16

MATTER TYPE:

Appeals

DELIVERED ON:

25 November 2019

HEARING DATE:

12 November 2019

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Member Browne

ORDERS:
1. The respondent be placed on probation for a period of 12 months from 25 November 2019.

2. Counsel for the parties shall bring in an agreed form of probation order. Failing agreement, the matter shall be listed for a further hearing to settle the terms of the probation order.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL–GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – where the Appeal Tribunal set aside the decision of the Tribunal at first instance and substituted a finding that the respondent had engaged in corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) (“CC Act”) – where the Appeal Tribunal proceeded under s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) – where the respondent has appealed to the Court of Appeal against the Appeal Tribunal’s decision – whether the question of sanction should be adjourned pending the outcome of that appeal – whether the question of sanction should be remitted to the Senior Member who constituted the Tribunal at first instance to further proceed according to law

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant applied to QCAT to hear and decide an allegation of corrupt conduct against the respondent – where the Tribunal dismissed that application – where the Appeal Tribunal substituted the decision at first instance for a decision that the respondent had engaged in corrupt conduct – where Chapter 5 Part 2 Division 4 of the CC Act confers powers on QCAT – whether those powers permit the Appeal Tribunal to make sanction orders

POLICE – EXTERNAL OVERSIGHT – where the Appeal Tribunal made a finding that the respondent engaged in corrupt conduct pursuant to s 15 of the CC Act – where the applicant submits that the only appropriate sanction is dismissal – where the respondent submits that the appropriate sanction is to order the respondent be placed on probation for 12 months – whether to order dismissal, probation or other sanction under s 219I of the CC Act

Crime and Corruption Act (Qld) 2000, s 219A, s 219C, s 219I, s 219M

Police Service Administration Act (Qld) 1990, s 7.34

Queensland Civil and Administrative Tribunal Act 2009, s 147

Crime and Corruption Commission v Lee [2019] QCATA 38
Crime and Corruption Commission v Taylor [2018] QCAT 80
Crime and Misconduct Commission v Barrett [2013] QCAT 477
Legal Services Commissioner v Fellows [2017] QCAT 337
Legal Services Commissioner v Munt [2019] QCAT 160
Quilter v Mapleson (1882)…

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] QCATA 151
Decision Date: 25 November 2019

CaseChat Overview and Summary

In the matter of Crime and Corruption Commission v Lee (No 2), the Court of Appeal was tasked with reviewing the decision of the Appeal Tribunal, which had set aside a finding of the Queensland Civil and Administrative Tribunal (QCAT) and substituted a decision that the respondent had engaged in corrupt conduct under the Crime and Corruption Act 2001 (Qld). The Commission had sought to have the respondent dismissed from their position, while the respondent argued for a probationary sanction. The Court of Appeal considered whether the Appeal Tribunal had the authority to impose a sanction and whether the question of sanction should be remitted back to the Senior Member who constituted the Tribunal at first instance.

The legal issues before the Court of Appeal were twofold: firstly, whether the powers conferred upon QCAT by Chapter 5 Part 2 Division 4 of the CC Act permitted the Appeal Tribunal to make sanction orders, and secondly, whether the appropriate sanction in this case was dismissal, probation, or some other form of sanction under s 219I of the CC Act. The Court of Appeal had to determine the scope of the Appeal Tribunal's powers and the appropriate sanction for the respondent's corrupt conduct.

The Court of Appeal found that the Appeal Tribunal did have the authority to make sanction orders as they were empowered by the QCAT Act to hear appeals from QCAT decisions and could substitute or affirm the original decision. The Court held that the Appeal Tribunal was not restricted to merely affirming or setting aside the original decision but could also impose sanctions. The Court further held that the appropriate sanction in this case was a probationary order for a period of 12 months. The Court considered that a probationary sanction was appropriate given the respondent's otherwise unblemished service record and the nature of the corrupt conduct. The Court noted that the decision on the appropriate sanction was within the discretion of the Appeal Tribunal and that the Commission's submission for dismissal was not the only appropriate outcome.

The Court of Appeal ordered that the respondent be placed on probation for a period of 12 months from 25 November 2019. The Court also directed that counsel for the parties bring in an agreed form of probation order. If the parties could not agree, the matter would be listed for a further hearing to settle the terms of the probation order. This outcome balanced the need for accountability with the respondent's professional standing and service record.

Orders

Orders of the court

1. The respondent be placed on probation for a period of 12 months from 25 November 2019.

2. Counsel for the parties shall bring in an agreed form of probation order. Failing agreement, the matter shall be listed for a further hearing to settle the terms of the probation order.

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 Lee (No 2) [2019] QCATA 151
PARTIES:	CRIME AND CORRUPTION COMMISSION
(appellant)
v
ANTHONY WILLIAM LEE
(respondent)
APPLICATION NO/S:	APL021-18
ORIGINATING APPLICATION NO/S:	OCR096-16
MATTER TYPE:	Appeals
DELIVERED ON:	25 November 2019
HEARING DATE:	12 November 2019
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Member Browne
ORDERS:	1. The respondent be placed on probation for a period of 12 months from 25 November 2019. 2. Counsel for the parties shall bring in an agreed form of probation order. Failing agreement, the matter shall be listed for a further hearing to settle the terms of the probation order.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL–GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – where the Appeal Tribunal set aside the decision of the Tribunal at first instance and substituted a finding that the respondent had engaged in corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) (“CC Act”) – where the Appeal Tribunal proceeded under s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) – where the respondent has appealed to the Court of Appeal against the Appeal Tribunal’s decision – whether the question of sanction should be adjourned pending the outcome of that appeal – whether the question of sanction should be remitted to the Senior Member who constituted the Tribunal at first instance to further proceed according to law ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant applied to QCAT to hear and decide an allegation of corrupt conduct against the respondent – where the Tribunal dismissed that application – where the Appeal Tribunal substituted the decision at first instance for a decision that the respondent had engaged in corrupt conduct – where Chapter 5 Part 2 Division 4 of the CC Act confers powers on QCAT – whether those powers permit the Appeal Tribunal to make sanction orders POLICE – EXTERNAL OVERSIGHT – where the Appeal Tribunal made a finding that the respondent engaged in corrupt conduct pursuant to s 15 of the CC Act – where the applicant submits that the only appropriate sanction is dismissal – where the respondent submits that the appropriate sanction is to order the respondent be placed on probation for 12 months – whether to order dismissal, probation or other sanction under s 219I of the CC Act Crime and Corruption Act (Qld) 2000, s 219A, s 219C, s 219I, s 219M Police Service Administration Act (Qld) 1990, s 7.34 Queensland Civil and Administrative Tribunal Act 2009, s 147 Crime and Corruption Commission v Lee [2019] QCATA 38 Crime and Corruption Commission v Taylor [2018] QCAT 80 Crime and Misconduct Commission v Barrett [2013] QCAT 477 Legal Services Commissioner v Fellows [2017] QCAT 337 Legal Services Commissioner v Munt [2019] QCAT 160 Quilter v Mapleson (1882)…