DA v Deputy Commissioner Stewart (No 2)

CITATION: DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162

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

APPLICATION NUMBER: APL047-11

MATTER TYPE: Appeals

HEARING DATE: 22 May 2013

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham
Joanne Browne, Member

DELIVERED ON: 25 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The decision made by the respondent on 2 February 2010 in relation to matters 1, 2 and 4 that those charges are substantiated is confirmed.

2.    DA is suspended from the Queensland Police Service for 18 months effective from 2 February 2010.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where decision of the appeal tribunal contained in paragraphs 3(iv) and 3(iii) were set aside – where matter remitted to the appeal tribunal to determine sanction – where fresh evidence relates to credibility and circumstances of conduct – where evidence of rehabilitation and credit – where appropriate sanction to be determined.

DISCIPLINARY PROCEEDINGS – POLICE OFFICER – MISCONDUCT – whether matters relevant to determine sanction.

Crime and Misconduct Act 2000 (Qld), ss 219A, 219B, 219BA, 219C & Schedule 2.
Police Service Administration Act 1990 (Qld), ss 1.3, 1.4, 7.2(1), (2A)(b) & 7A.5(1)(b).

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 146,147 & 194A.

Aldrich v Ross [2001] 2 Qd R 235, cited.

DA v Deputy Commissioner Stewart [2011] QCAT 102, cited.

DA v Deputy Commissioner Stewart [2011] QCATA 359, cited.

Deputy Commissioner Stewart v Dark [2012] QCA 228, applied.

Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 066, cited.

McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, cited.

Ottaway v Commissioner of Police (Unreported, Queensland Civil and Administrative Tribunal, Mr P Richards (Member) 15 March 2013) cited.

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, cited.

APPEARANCES and REPRESENTATION:

APPLICANT: Mr P Flanagan QC, of Counsel, instructed by Gilshenan & Luton.

RESPONDENT: Mr S McLeod, of Counsel, instructed by the Office of the Queensland Police Service Solicitor.

REASONS FOR DECISION

Background

1. DA was subject to disciplinary proceedings regarding conduct when he was a police constable. This Appeal Tribunal published its decision on an appeal from a member of QCAT on 9 December 2011.[1] On 24 August 2012, the Court of Appeal set aside the Appeal Tribunal’s finding on one allegation of misconduct and remitted the matter to the Appeal Tribunal for reconsideration of sanction.[2]

   [1]        DA v Deputy Commissioner Stewart [2011] QCATA 359.

   [2]        Deputy Commissioner Stewart v Dark [2012] QCA 228.

2. The Appeal Tribunal has resumed these proceedings, constituted for this stage as it was for the original hearing, although one of its members, Judge Kingham, is no longer a member of QCAT. The parties were consulted on the constitution of the panel and did not object to this course. As they have not yet concluded, Judge Kingham is deemed to continue as a member of QCAT for the purpose of these proceedings.[3]

   [3]        Queensland Civil and Administrative Tribunal Act