DA v Deputy Commissioner Stewart - [2011] QCATA 359

CITATION: DA v Deputy Commissioner Stewart [2011] QCATA 359

PARTIES: DA
(Applicant/Appellant)

v

Deputy Commissioner Ian Stewart
(Respondent)

APPLICATION NUMBER:   APL047-11

MATTER TYPE: Appeals

HEARING DATE: 5 October 2011

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Joanne Browne, Member

DELIVERED ON: 9 December 2011

DELIVERED AT: Brisbane

ORDERS MADE:
1.    The appeal is allowed.

2.    The decision made by the Tribunal in matter no OCR033-10 on 17 January 2011 is set aside.

3.    The following decision is substituted for it:

i)     Matter 1: the decision is confirmed.

ii)    Matter 2: the decision is confirmed.

iii)   Matter 3: the decision is set aside. The charge is not substantiated.

iv)   Matter 4: the decision is set aside. The charge is not substantiated.

v)    Matter 5: the decision is set aside. The charge is not substantiated.

vi)   Matter 9: the decision is set aside. The charge is not substantiated.

vii)     The decision to dismiss DA from the Queensland Police Service is quashed.

viii)   DA is suspended from the Queensland Police Service for 6 months effective from 2 February 2010.

CATCHWORDS:
APPEAL – LEAVE TO APPEAL – Whether leave to appeal necessary – where reasons did not reveal the Member’s process of reasoning on critical issues – whether leave should be granted

APPEAL – FRESH EVIDENCE – Where evidence of events that occurred after the hearing should be admitted – where evidence relates to the credibility of statements made in relation to a charge of forgery – whether leave should be granted

DISCIPLINARY PROCEEDINGS – POLICE OFFICER – MISCONDUCT – whether charges substantiated to the necessary standard – whether certain conduct constituted misconduct or was a private matter – whether other conduct constituted misconduct or a breach of discipline –
whether sanction excessive

Crime and Misconduct Act 2000, ss 219A, 219B, 219BA, 219C, schedule 2
Police Service Administration Act 1990, ss 1.3, 1.4, 7.2(1), (2A)(b), 7A.5(1)(b)
Queensland Civil and Administrative Tribunal Act 2009, ss 146, 147

Briginshaw v Briginshaw (1938) 60 CLR 336 applied

Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564 cited

Commissioner of Queensland Police Service v Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1995] QCA 187 applied
Hawkins v Pended Bros Pty Ltd (1990) 1 Qd R 135 applied
Henry v Ryan [1963] Tas SR 90 applied
House v R (1936) 55 CLR 499 applied
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 applied
Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309 applied
Mulholland v Mitchell [1971] AC 666 applied
Orme v Atkinson No TA 2 of 1999 cited
Orr v Holmes (1948) 76 CLR 632 applied
R V S [2000] 1 Qd R 445 applied
Schauer v Banham Misconduct Tribunal – Appeal No. 11 of 1996 cited
Smith v Cullinan Misconduct Tribunal – Appeal No. 4 of 1996 cited

Sullivan v Department of Transport (1978) 20 ALR 323 applied

Wollongong Corporation v Cowan (1955) 93 CLR 435

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.

Keep reading for free

Create a free CaseChat account to read DA v Deputy Commissioner Stewart and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] QCATA 359
Decision Date: 9 December 2011

CaseChat Overview and Summary

In the case of DA v Deputy Commissioner Stewart, the appellant, DA, a police officer, sought leave to appeal the Tribunal's decision regarding charges of misconduct and dismissal from the Queensland Police Service. The Tribunal had found certain conduct to be substantiated, leading to DA's dismissal. The Court of Appeal examined whether the Tribunal's reasons adequately reflected its reasoning on critical issues, the admissibility of fresh evidence, and the substantiation of the charges against DA.

The legal issues before the court were whether the Tribunal's reasons for its decision were sufficient, whether fresh evidence should be admitted in relation to the credibility of statements made in connection with the charge of forgery, and whether the charges of misconduct were substantiated to the required standard. The court had to determine if the Tribunal's decision was legally sound and if the evidence supported the findings of misconduct.

The court found that the Tribunal's reasons did not sufficiently reveal its reasoning on critical issues, which was necessary for the appeal process. Furthermore, the court held that the fresh evidence, which related to the credibility of statements made regarding a charge of forgery, was relevant and should be considered. The court concluded that several charges were not substantiated to the necessary standard, and therefore, the Tribunal's decision to dismiss DA from the Queensland Police Service was quashed. Instead, the court ordered DA to be suspended for six months, effective from 2 February 2010.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision made by the Tribunal in matter no OCR033-10 on 17 January 2011 is set aside.

3. The following decision is substituted for it:

i) Matter 1: the decision is confirmed.

ii) Matter 2: the decision is confirmed.

iii) Matter 3: the decision is set aside. The charge is not substantiated.

iv) Matter 4: the decision is set aside. The charge is not substantiated.

v) Matter 5: the decision is set aside. The charge is not substantiated.

vi) Matter 9: the decision is set aside. The charge is not substantiated.

vii) The decision to dismiss DA from the Queensland Police Service is quashed.

viii) DA is suspended from the Queensland Police Service for 6 months effective from 2 February 2010.

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.

PARTIES:	DA (Applicant/Appellant)
v
Deputy Commissioner Ian Stewart (Respondent)