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Flanagan v Gee

Flanagan v Gee

Case [2020] QCAT 36 5 February 2020

Judicial Review

Discipline and Dismissal

Sanctions

Natural Justice & Procedural Fairness

Administrative Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Flanagan v Gee & Anor [2020] QCAT 36

PARTIES: SENIOR CONSTABLE STEPHEN FLANAGAN

(applicant)

v

DEPUTY COMMISSIONER BOB GEE

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

OCR 310-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 February 2020

HEARING DATE:

29 July 2019

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

The decision of Deputy Commissioner Bob Gee made on 6 November 2018 (being a disciplinary declaration pursuant to Part 7A of the Police Service Administration Act 1990 that if Senior Constable Stephen Flanagan had remained employed with the Queensland Police Service the sanction of dismissal from the Queensland Police Service would have been imposed) is confirmed.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where a police officer pointed a firearm at a citizen, used coarse language, and handcuffed the citizen in the course of a road traffic interception – where the police officer was convicted of assault and deprivation of liberty – where a disciplinary declaration as to dismissal was made by a Deputy Commissioner of the Queensland Police Service after a police officer had resigned – whether dismissal is the appropriate sanction – whether a suspended sanction could be imposed

Police Service Administration Act 1990 (Qld), Part 7A.2, Part 7A.2(3)(a), Part 7A.2(3)(b)

Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld), s 11
Police Service (Discipline) Regulations 1990 (Qld), s 5

Austin v Deputy Commissioner Peter Martin [2018] QCAT 120
Commissioner of Police v Flanagan [2018] QCA 109
Crime and Corruption Commission v Queensland Police Service and Anor [2015] QCATA 15
Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No. 1 of 2003
Police Service Board v Morris (1985) 156 CLR 397
Quinn v Law Institute of Victoria Limited [2007] VSCA 122
R v Gooder [2009] QCA 377
R v Price ex parte A-G [2011] QCA 87
R v Tsiaris [1996] 1 VR 398

R v Yarwood [2011] QCA 367

APPEARANCES & REPRESENTATION:

Applicant:

Gnech and Associates, Solicitors

First Respondent:

Queensland Police Service

Second Respondent:

Crime and Corruption Commission

REASONS FOR DECISION

Mr Flanagan was an officer with the Queensland Police Service (‘QPS’) from 13 November 1989 until his resignation on 29 June 2018, at which time he held the rank of Senior Constable.
Subsequent to his resignation, Deputy Commissioner Gee (‘the Deputy Commissioner’) made a disciplinary declaration on 6 November 2018 as follows:[1]
[1]Notice of Formal Finding, Misconduct, 6 November 2018, p.2.
Therefore, pursuant to the Police Service Administration Act 1990 and the Police Service (Discipline) Regulations 1990 and having regard to the purpose of discipline, the interests of the Service and the interest of the community in general, I make the following disciplinary declaration against you pursuant to Part 7A of the Police Service Administration Act 1990 that if you had remained employed with the Queensland Police Service the below sanction would have been…

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.

Continue reading Flanagan v Gee

Details

AGLC: Flanagan v Gee [2020] QCAT 36
Case: [2020] QCAT 36
Decision Date: 5 February 2020

CaseChat Overview and Summary

In Flanagan v Gee, the respondent, Stephen Flanagan, a police officer, was subject to disciplinary action following an incident involving the use of a firearm, coarse language, and the handcuffing of a citizen during a traffic stop. Flanagan was subsequently convicted of assault and deprivation of liberty. After Flanagan resigned from the Queensland Police Service, a disciplinary declaration was issued by Deputy Commissioner Bob Gee, stating that if Flanagan had remained employed, he would have been dismissed. Flanagan challenged the appropriateness of the dismissal as a sanction, arguing that a lesser penalty, such as a suspension, might have been more appropriate.

The central legal issues before the court were whether the sanction of dismissal was appropriate in light of the severity of Flanagan's misconduct and whether a suspended sanction could be imposed despite Flanagan's resignation. The court needed to assess the proportionality of the sanction relative to the gravity of the misconduct, taking into account the context of Flanagan's role as a police officer and the expectations placed on him as a member of the Queensland Police Service.

The court found that the Deputy Commissioner's decision to impose dismissal was well within the bounds of reasonableness. Given the seriousness of Flanagan's actions, which included pointing a firearm at a citizen and using excessive force, the court held that dismissal was a proportionate response. The court further determined that the resignation of Flanagan did not preclude the court from confirming the disciplinary declaration, as the declaration was made pursuant to statutory provisions allowing for such action even after resignation. The court was satisfied that the Deputy Commissioner had exercised his discretion appropriately, considering the circumstances and the need to maintain public confidence in the police force.

The court confirmed the decision of Deputy Commissioner Bob Gee, affirming that the sanction of dismissal was appropriate and correctly applied under the circumstances.

Orders

Orders of the court

The decision of Deputy Commissioner Bob Gee made on 6 November 2018 (being a disciplinary declaration pursuant to Part 7A of the Police Service Administration Act 1990 that if Senior Constable Stephen Flanagan had remained employed with the Queensland Police Service the sanction of dismissal from the Queensland Police Service would have been imposed) is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Flanagan v Gee [2020] QCAT 36

Most Recent Citation

Cavanagh v Deputy Commissioner Gollshewski [2021] QCAT 162

Cases Citing This Decision

Cavanagh v Gollschewski [2022] QCATA 166
Citation 1 (Para 2)

…overpowering influence sufficient to militate a conscious awareness of the behaviour.” For this proposition, the Member cited Flanagan v Gee [2020] QCAT 36 at [102], [103]. In that matter, a different Member dealt with a submission, that the effect of the officer’s mental health condition reduced his moral culpa…
Cavanagh v Deputy Commissioner Gollshewski [2021] QCAT 162
Citation 2 (Para 2)

…tion Commission [2015] QCA 218; Police Service Board v Morris (1985) 156 CLR 397, 411-412. [34] Flanagan v Deputy Commissioner Gee & Anor [2020] QCAT 36, [102] – [103]. [35]Unlike Crime and Corruption Commission v McCarthy & Anor, Queensland Civil and Administrative Tribunal, Member Holzberger, 10 November 2019,…

See all citing cases →

Cases Cited

Commissioner of Police v Flanagan [2018] QCA 109
Citation 1 (Para 4)

…addition, the magistrate made a number of specific adverse findings as to the respondents credibility. [23] Commissioner of Police v Flanagan [2018] QCA 109 at [17].…
Austin v Deputy Commissioner Peter Martin [2018] QCAT 120
Citation 2 (Para 21)

…ere reference was made to the following principles which were described as ‘applicable in police disciplinary proceedings in Queensland’:[51] [50][2018] QCAT 120. [51]Ibid [38]. [34] In R v Gooder[52] the Court of Appeal observed: [52][2009] QCA 377. This Court has accepted the proposition that, generally speaking…
Crime and Corruption Commission v Queensland Police Service [2015] QCATA 15
Citation 3 (Para 13)

…em of police officers and of efficiency. [46](1985) 156 CLR 397, 412. [47] Crime and Corruption Commission v Queensland Police Service and Anor [2015] QCATA 15.…
R v Yarwood [2011] QCA 367
Citation 4 (Para 21)

…ad to be “sensibly moderated” in this case, and that the implications for Quinn’s culpability had to be considered. [53][2011] QCA 367. [54][2007] VSCA 122.…
R v Price; ex parte [2011] QCA 87
Citation 5 (Para 14)

…es not only to the morale of the force and its esprit de corps , but to the efficacy of its operations through community cooperation and support. [48][2011] QCA 87, [53].…
R v Goodger [2009] QCA 377
Citation 6 (Para 21)

…police disciplinary proceedings in Queensland’:[51] [50][2018] QCAT 120. [51]Ibid [38]. [34] In R v Gooder[52] the Court of Appeal observed: [52][2009] QCA 377. This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender an…
Quinn v Law Institute of Victoria [2007] VSCA 122
Citation 7 (Para 21)

…oderated” in this case, and that the implications for Quinn’s culpability had to be considered. [53][2011] QCA 367. [54][2007] VSCA 122.…
R v Verdins [2007] VSCA 102
Citation 8 (Para 21)

…on is much less able than others not so afflicted to make sound judgments about conduct. The courts in Australia, as discussed in Verdins [2007] VSCA 102 at [23]-[26], have readily accepted that moral culpability for an offence as distinct from the offender’s legal responsibility for it might be reduced by mental…
R v Jiminez [1999] NSWCCA 7
Citation 9 (Para 21)

…QCA 147; R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53. [35] In R v Yarwood[53], at [33] and [34], the Court said: The court in Tsiaras [1996] 1 VR 398 at 400 observed that: “[A] prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence…” Where a person hold…
R v Dunn [1994] QCA 147
Citation 10 (Para 21)

…sanity may lessen the moral culpability of an offender and so reduce the claims of generally deterrence upon the sentencing discretion ( R v Dunn [1994] QCA 147; R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53. [35] In R v Yarwood[53], at [33] and [34], the Court said: The court in Tsiaras [1996] 1 VR 398 at 400…
Police Service Board v Morris [1985] HCA 9
Citation 11

…sland Police Service and Anor [2015] QCATA 15 Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No. 1 of 2003 Police Service Board v Morris (1985) 156 CLR 397 Quinn v Law Institute of Victoria Limited [2007] VSCA 122 R v Gooder [2009] QCA 377 R v Price ex parte A-G [2011] QCA 87 R v Tsiaris [1996] 1 VR 398 R v Yarw…

Legislation Cited

Police Service (Discipline) Regulations 1990 (QLD) 5
2 mentions (from Para 2)
Crime and Corruption Act 2001 (Qld)
1 mention (from Para 1)
Police Powers and Responsibilities Act 2000 (Qld)
1 mention (from Para 1)
Police Service Administration Act 1990 (Qld)
1 mention (from Para 2)