Crime and Corruption Commission v McCarthy; PSB v McCarthy - [2020] QCAT 529

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission v McCarthy & Anor; PSB v McCarthy [2020] QCAT 529

PARTIES:

In OCR246-18:

CRIME AND CORRUPTION COMMISSION

(applicant)

v

ASSISTANT COMMISSIONER ALLAN MCCARTHY

(first respondent)

PSB

(second respondent)

In OCR321-18:

PSB

(applicant)

v

ASSISTANT COMMISSIONER ALLAN MCCARTHY

(respondent)

APPLICATION NO/S:

OCR246-18; OCR321-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 November 2020

HEARING DATE:

8 April 2019

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:
In OCR321-18:

Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of the names and or identifying particulars of the applicant and all third parties in proceedings OCR321-18 is prohibited.

In OCR246-18 and OCR321-18:

The decision of Assistant Commissioner Allan McCarthy dated 28 August 2018 both in relation to substantiation and sanction is confirmed.

CATCHWORDS:
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where review of decision on the substantiation of disciplinary charges and sanction imposed – where police officer on duty engaged in inappropriate sexual behaviour and disobeyed a direction of a Senior Officer – where mental health condition of the officer considered in determining sanction

Crime and Corruption Act 2001 (Qld), s 219L

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

Aldrich v Ross [2001] 2 Qd R 235
Austin v Deputy Commissioner Peter Martin [2018] QCAT 120
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122
R v Goodger [2009] QCA 377
R v Tsiaras [1996] 1 VR 398
R v Yarwood [2011] QCA 367

APPEARANCES & REPRESENTATION:

In OCR246-18:

Applicant:

D J Caughlin, Crime and Corruption Commission

First Respondent:

S McLeod QC

Second Respondent:

C Gnech, solicitor of Gnech & Associates

In OCR321-18:

Applicant:

C Gnech, solicitor of Gnech & Associates

Respondent:

S McLeod QC

REASONS FOR DECISION

On 28 August 2018, Assistant Commissioner Allan McCarthy (QPS) delivered his findings and reasons in respect of a disciplinary proceeding brought against PSB.
The disciplinary hearing notice alleged misconduct against PSB in four matters. Matters 1 to 3 alleged inappropriate sexual conduct whilst on duty with three separate female police officers. Matter 4 alleged that PSB had disobeyed the direction of a Senior Officer during the course of the disciplinary process.
In respect of each of matters 1 to 3, QPS found the conduct alleged against PSB substantiated and that it amounted to misconduct. He found matter 4 unsubstantiated.
The sanction imposed on PSB was a reduction in rank from Sergeant 3.6 to Senior Constable 2.10 for a period of 12 months.
The Crime and Corruption Commission (CCC) applied to the Tribunal for a review of the substantiated decision in respect of matter 4 and a review of the sanction. That application is proceeding number OCR246-18.
PSB belatedly applied for a review of the decision on 4 December 2018 and an extension of time to make that review application. These are proceedings OCR321-18.
The review application contends that QPS erred in making certain findings relating to substantiation and erred…

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: [2020] QCAT 529
Decision Date

CaseChat Overview and Summary

This case involved a review of a disciplinary decision made against Assistant Commissioner Allan McCarthy (QPS) by the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Crime and Corruption Commission, sought a review of the decision on the substantiation of disciplinary charges and the sanction imposed. The second respondent, PSB, sought a review of the decision on the substantiation and the sanction. The primary issues for the Tribunal to decide were whether the disciplinary charges were substantiated, and if the sanction imposed was appropriate. The Tribunal considered evidence from both parties and expert psychiatric evidence. The Tribunal found that the conduct alleged against PSB was substantiated and amounted to misconduct. The Tribunal did not find the alleged disobedience of a direction by PSB to be substantiated. The Tribunal confirmed the sanction imposed on PSB, a reduction in rank from Sergeant 3.6 to Senior Constable 2.10 for a period of 12 months. The Tribunal found that PSB's mental health condition at the time of the offending behaviour and investigation reduced his moral culpability for the behaviour and eliminated general and specific deterrents as a consideration in determining sanction. However, the Tribunal found that the sanction was not disproportionate to the misconduct in the circumstances. The Tribunal did not suspend the sanction as it was of the view that the benefit of the imposition of conditions did not appear to be supported by the evidence.

Orders