Crime & Corruption Commission v Dawes

Case [2017] QCAT 66


CITATION:

Crime & Corruption Commission v Dawes & Anor [2017] QCAT 66

PARTIES:

Crime and Corruption Commission
(Applicant)

v

Superintendent Mark Kelly
Sergeant Gregory Adam Dawes

(Respondents)

APPLICATION NUMBER:

OCR131-16

MATTER TYPE: Occupational regulation matters

HEARING DATE:

15 December 2016

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

6 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The review application filed by the Crime and Corruption Commission is struck out.

CATCHWORDS:

POLICE – EXTERNAL OVERSIGHT – Review of internal disciplinary proceedings – where allegation of breach of discipline made and substantiated against officer – whether reviewable decision

Crime and Corruption Act 2001 (Qld), s 15, s 219BA, s 219G, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 17, s 18, s 19, s 20, s 21, s 22, s 23, s 24
Police Service Administration Act 1990 (Qld), s 1.4, s 6.9 s 7.2, s 7.4, s 7A.4, s 7A.5, s 9.3
Police Service (Discipline) Regulations 1990 (Qld), s 4

Arndt v Crime and Misconduct Commission [2013] QCATA 340
CMC v Deputy Commissioner & Chapman [2010] QCAT 564
Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384
Crime & Corruption Commission v Assistant Commissioner Dawson & Anor. [2017] QCAT 37
Crime & Misconduct Commission v Acting Deputy Commissioner Barron & Alexander [2014] QCAT 241
Crime and Misconduct Commission v Deputy Commissioner Barnett & Thomas [2013] QCAT 365
Crime & Corruption Commission v Deputy Commissioner Gollschewski & Anor (No 2) [2014] QCAT 488
Crime & Corruption Commission v Deputy Commissioner Pointing & O’Sullivan [2016] QCAT 510
Crime and Misconduct Commission v Flegg & Anor [2012] QCAT 74
Flegg v CMC & Anor [2014] QCA 42
Flegg v Crime and Misconduct Commission & Anor [2013]QCA 376
PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 184 CLR 301

APPEARANCES:

APPLICANT:

Mr M. Copley QC instructed by the Official Solicitor to the Commissioner for Crime and Corruption

FIRST RESPONDENT:

SECOND RESPONDENT:

Mr S. McLeod, Counsel

Mr T. Schmidt, Counsel

REASONS FOR DECISION

  1. The Crime and Corruption Commission (CCC) applied to the Queensland Civil and Administrative Tribunal (QCAT) for review of a decision of Superintendent Mark Kelly about disciplinary action taken against Sergeant Gregory Dawes. The CCC’s application nominated two bases. Firstly, it says that  Superintendent Kelly incorrectly decided that the substantiated conduct of Mr Dawes was a breach of discipline, when it should have been determined to be misconduct. Secondly, the CCC says that the sanction imposed by Superintendent Kelly does not reflect the seriousness of the conduct engaged in by Mr Dawes.

  2. Mr Dawes has filed an application seeking orders that the review application of the CCC be struck out pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on the basis that it is misconceived.[1] In essence, Mr Dawes argues that the decision of Superintendent Kelly is not a reviewable decision and therefore the Tribunal has no jurisdiction for the review. Superintendent Kelly agrees.

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Details
AGLC
Crime & Corruption Commission v Dawes [2017] QCAT 66
Case
[2017] QCAT 66
Decision Date

CaseChat Overview and Summary

The case of Crime & Corruption Commission v Dawes involved the Crime & Corruption Commission (CCC) seeking review of a disciplinary decision made by the Queensland Police Service (QPS) against Mr Dawes. The QPS had found Mr Dawes guilty of breaching discipline in his capacity as a police officer, and had imposed a sanction of two penalty points. The CCC sought a review of this decision under the Crime and Corruption Act 2001 (Qld). The central legal issue was whether the decision made by the QPS was a "reviewable decision" within the meaning of the CCC Act, thereby subject to review by QCAT. The CCC argued that the disciplinary decision constituted a reviewable decision because it involved a finding of misconduct by a police officer, which fell within the definition of a reviewable decision as provided in the Act.

The court considered the definitions and provisions of both the CCC Act and the Police Service Administration Act 1990 (Qld), focusing particularly on the definition of "reviewable decision" and what constituted a disciplinary declaration. It concluded that the disciplinary decision made by the QPS was not a "reviewable decision" as it did not involve a disciplinary declaration under the Public Service Act 2008 or the Police Service Administration Act 1990. Instead, the decision was a disciplinary action taken by a senior officer under the Police Service Administration Act, which did not meet the criteria for a reviewable decision under the CCC Act.

Accordingly, the court found that the disciplinary decision was not subject to review by QCAT and dismissed the review application brought by the CCC. The decision was clear and straightforward, grounded in the statutory definitions and the nature of the disciplinary action taken. The court’s reasoning emphasised the importance of adhering to the statutory criteria for what constitutes a reviewable decision. The final order was that the review application filed by the Crime and Corruption Commission was struck out.

Orders

Orders of the court

1. The review application filed by the Crime and Corruption Commission is struck out.

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

The CCC Act defines reviewable decision, as follows:219BA Meaning of reviewable decision(1) A reviewable decision means—(a)a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or(b)a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that corruption is proved against an officer.(2) In this section—decision, made in relation to a disciplinary allegation of corruption, if a disciplinary declaration is made, includes the disciplinary declaration.Note—A reviewable decision may also involve a failure to make a disciplinary declaration.disciplinary declaration means a disciplinary declaration made under—(a) the Public Service Act 2008, section 188A; or(b) the Police Service Administration Act 1990, section 7A.2(2).prescribed person, in relation to a prescribed person mentioned in section 50(4), definition prescribed person, paragraphs (a)(ii) and (b)(ii), means—(a)a prescribed person against whom a disciplinary declaration has been made; or(b)in relation to an appeal[4] started by the commission under section 219G—(i)a prescribed person mentioned in paragraph (a); or(ii)a prescribed person against whom a disciplinary declaration has not been made if a ground of appeal states that a disciplinary declaration should have been made.[4]Despite the reference in s 219BA to an ‘appeal’, s 219G provides, as discussed above, for review. A review is a merits review conducted in QCAT’s review jurisdiction:(the proceeding is not an appeal conducted in the Tribunal’s appeal jurisdiction): see for example, Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384; and CMC v Deputy Commissioner & Chapman [2010] QCAT 564. For the CCC Act, corruption is defined as corrupt conduct[5] or police misconduct.[6] Police misconduct is relevantly defined in the CCC Act, as follows:police misconduct means conduct, other than corrupt conduct, of a police officer that—(a) is disgraceful, improper or unbecoming a police officer; or(b) shows unfitness to be or continue as a police officer; or(c) does not meet the standard of conduct the community reasonably expects of a police officer.[7][5]‘Corrupt Conduct’ is defined in Crime and Corruption Act 2001 (Qld), s 15.[6]Crime and Corruption Act 2001 (Qld) Schedule 2, definition of ‘corruption.’[7]Ibid ‘police misconduct.’ By virtue of these provisions police misconduct meets the definition of corruption in the CCC Act. The Police Service Administration Act 1990 (Qld) (PSA Act) provides broadly (among other things) for disciplinary action to be taken against police officers by more senior police officers. Pursuant to s 7.4 of the PSA Act, an officer is liable to disciplinary action in respect of the officer’s conduct, which a prescribed officer (an officer duly authorised under the regulations) considers to be misconduct or a breach of discipline, as provided for in the regulations.[8] [8]Police Service Administration Act 1990 (Qld), s 7.4(2) and s 7.4(1).

Ratio Decidendi

Legal Principle Established

Superintendent Kelly provided Mr Dawes with a notice entitled ‘Direction to attend a disciplinary hearing – Breach of discipline’. The notice relevantly advised Mr Dawes that (emphasis original):By virtue of the provisions of Sections 7.2 and 7.4 of the Police Service Administration Act 1990 and s.4 of the Police Service (Discipline) Regulations 1990, it is my duty to take such action in relation to the following matters that I consider, if substantiated, constitute breaches of discipline. The notice set out the disciplinary charge against Mr Dawes, alleging breach of the Commissioner’s directions in failing to:(a) Take adequate action in relation to a high risk person;(b) Notify Search and Rescue personnel or the on-call Commissioned Officer; and(c) Ensure the efficient and effective deployment and management of [a Senior Constable] who was under your control in compliance with Service policy and procedures. Superintendent Kelly found the disciplinary charge substantiated. He found the conduct was a breach of discipline. He imposed a sanction of two penalty points. Among its other functions, the CCC has, what might be broadly described as, an oversight role over the manner in which the Queensland Police Service (QPS) deals with police misconduct. The Crime and Corruption Act 2001 (Qld) (CCC Act) provides that the CCC (or a prescribed person[2] against whom the decision was made) may apply for review of a reviewable decision and QCAT may determine the disciplinary proceeding.[3] For present purposes, it is sufficient to note that a prescribed person includes an officer (or former officer) who is the subject of the reviewable decision. [2]‘Prescribed person’ is defined in Crime and Corruption Act 2001 (Qld), Schedule 2 definition ‘prescribed person’ (which refers to s 50); as modified in s 219BA(2) for the section.[3]Crime and Corruption Act 2001 (Qld), see s 219B, s 219C, s 219G, s 219H and s 219J. The CCC Act defines reviewable decision, as follows:219BA Meaning of reviewable decision(1) A reviewable decision means—(a)a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or(b)a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that corruption is proved against an officer.(2) In this section—decision, made in relation to a disciplinary allegation of corruption, if a disciplinary declaration is made, includes the disciplinary declaration.Note—A reviewable decision may also involve a failure to make a disciplinary declaration.disciplinary declaration means a disciplinary declaration made under—(a) the Public Service Act 2008, section 188A; or(b) the Police Service Administration Act 1990, section 7A.2(2).prescribed person, in relation to a prescribed person mentioned in section 50(4), definition prescribed person, paragraphs (a)(ii) and (b)(ii), means—(a)a prescribed person against whom a disciplinary declaration has been made; or(b)in relation to an appeal[4] started by the commission under section 219G—(i)a prescribed person mentioned in paragraph (a); or(ii)a prescribed person against whom a disciplinary declaration has not been made if a ground of appeal states that a disciplinary declaration should have been made.[4]Despite the reference in s 219BA to an ‘appeal’, s 219G provides, as discussed above, for review. A review is a merits review conducted in QCAT’s review jurisdiction:(the proceeding is not an appeal conducted in the Tribunal’s appeal jurisdiction): see for example, Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384; and CMC v Deputy Commissioner & Chapman [2010] QCAT 564.