Gunter v Assistant Commissioner Wilkins

[2021] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

Gunter v Assistant Commissioner Wilkins & Anor [2021] QCA 274

PARTIES:

JOSHUA GUNTER
(applicant)
v
ASSISTANT COMMISSIONER BRIAN WILKINS
(first respondent)
CRIME AND CORRUPTION COMISSION
(second respondent)

FILE NO/S:

Appeal No 5458 of 2021
QCATA No 305 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2021] QCATA 42 (Deputy President Judge Allen QC and Member Browne)

DELIVERED ON:

10 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2021

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDER:

The application be refused with costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant was charged under Part 7 of the Police Service Administration Act 1990 (Qld) with having committed misconduct by accessing confidential information in the Queensland Police Service computer system without having an official purpose related to the performance of his duties – where the Assistant Commissioner found that the applicant had accessed the information “without an official purpose related to the performance of [his] duties as a member of the Queensland Police Service” and concluded that conduct was “improper” – where the applicant applied to the Queensland Civil and Administrative Tribunal for a review and the decision of the Assistant Commissioner was set aside – where the applicant appealed to the QCAT appeal tribunal which set aside the member’s decision and confirmed the Assistant Commissioner’s original decision – whether the appeal tribunal erred in its appreciation of the scope of a police officer’s duty to investigate – whether there are reasonable prospects of establishing that there has been an error of law

Crime and Corruption Act 2001 (Qld), s 219BA, s 219G, s 219H
Police Service Administration Act 1990 (Qld), Pt 7, s 1.4, s 7.4, s 7A.4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 20

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Paterson v Paterson (1953) 89 CLR 212; [1953] HCA 74, cited
Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9, cited
Prestige & Rich Pty Ltd & Anor v Chief Executive, Department of Justice and Attorney General, Office of Fair Trading & Anor[2021] QCA 58, cited
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited

COUNSEL:

M Black and T Schmidt for the applicant
S A McLeod QC for the first respondent
J L Gorry for the second respondent

SOLICITORS:

Gnech and Associates for the applicant
Queensland Police Service Legal Unit for the first respondent
Crime and Corruption Commission for the second respondent

1. SOFRONOFF P: The applicant is a Sergeant of Queensland Police who accessed confidential information in the Queensland Police Service computer system on three separate occasions between November 2016 and February 2017. He was charged under Part 7 of the Police Service Administration Act 1990 with having committed misconduct by accessing such information without having an official purpose related to the performance of his duties.  The applicant admitted that he had accessed the information but denied that his access was unrelated to the performance of his duties.  This was the only disputed issue in the proceeding.  Assistant Commissioner Brian Wilkins found that the applicant had accessed the information “without an official purpose related to the performance of [his] duties as a member of the Queensland Police Service” and concluded that conduct was “improper”.[1]  As a result, Sergeant Gunter’s pay-point level was reduced from Sergeant level 3.6 to Sergeant level pay-point 3.4 for a period of 6 months and with a return to the original level after that period.

   [1]Police Service Administration Act 1990 (as at 19 September 2019), s 1.4 definition of “misconduct”, ss 7.4(1)(a) and 7.4(2A)(b); Standards of Practice, 2012/33 at Paragraph 16.

2. Such a decision is a “reviewable decision” for the purposes of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).[2]The applicant applied to the Queensland Civil and Administrative Tribunal for a review. The standard of review of such a decision is, pursuant to s 219H of the Crime and Corruption Act 2001, by way of rehearing on the original evidence in the proceeding, subject to a power to admit additional evidence if certain conditions are satisfied. That standard is to be contrasted with the standard of review that otherwise applies generally, pursuant to s 20 of the QCAT Act, to applications for review of decisions.  Under that provision a review is by way of a “fresh hearing on the merits”.  A review, or an appeal, “by way of rehearing” is not the same as a fresh hearing on the merits.  In particular, a reviewing tribunal which is conducting such a rehearing is constrained in its freedom to interfere with findings of fact which were based upon an assessment of the credit of a witness.[3]  It is not appropriate to engage in an analysis about the reasons for the statutory difference in the standard of review that applies to police disciplinary matters and the standard that applies generally to reviews of executive action under the QCAT Act.  One reason lies in the nature of a police service and the importance to the maintenance of public confidence in such a service of the integrity of its specialist internal disciplinary authority over its members.[4]

   [2]Police Service Administration Act 1990 (as at 19 September 2019), ss 7.4(2A)(b) and 7A.4(3)(a); Crime and Corruption Act 2001, ss 219BA(1)(b), 219G and 219H; Queensland Civil and Administrative Tribunal Act 2009, ss 17 and 18.

   [3]Paterson v Paterson (1953) 89 CLR 212 at 221-224 per Dixon CJ and Kitto J; Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs ACJ, Jacobs and Murphy JJs; Fox v Percy (2003) 214 CLR 118.

   [4]See the discussion in Police Service Board v Morris (1985) 156 CLR 397 at 412 per Brennan J.

3. The member who heard the application appears to have proceeded as though the proceedings before him were a fresh hearing on the merits and, although several of the Assistant Commissioner’s crucial findings were based upon his assessment of the applicant’s credit,[5] found that the charge had not been substantiated because he “accepted” the applicant’s explanations for his conduct,[6] while the Assistant Commissioner had not been prepared to do so.  On 15 October 2019 the member set aside the decision.  This error in approach is not, however, material to this application.

   [5]Eg see the finding based upon a rejection of the applicant’s evidence about his purpose in accessing certain information being to alleviate suspicions that he held: Appeal Book page 303.

   [6]Gunter v Assistant Commissioner Wilkins [2019] QCAT 410 at [48] (Member Kanowski).

4. Assistant Commissioner Wilkins, appealed to the QCAT appeal tribunal which, constituted by the Deputy President Judge Allen QC and Member Browne, set aside the member’s decision and confirmed the Assistant Commissioner’s original decision.

5. The applicant now seeks leave to appeal to this court.

6. The applicant’s relevant acts happened in 2016 and 2017.  Whether or not these actions amounted to misconduct depended entirely upon whether or not the applicant’s excuses for his admitted conduct were accepted.  The matter has been the subject of forensic inquiry on three occasions and the applicant now seeks to ventilate the issues for a fourth time.

7. The strictures upon such a proceeding have been referred to many times in decisions of this court.  I repeat what I said in Prestige & Rich Pty Ltd & Anor v Chief Executive, Department of Justice and Attorney General, Office of Fair Trading & Anor.[7]  A statutory requirement for leave to appeal is a manifestation of the principle of finality in litigation.  The underlying public interest is that there should be finality in litigation and, in general, a litigant should not be repeatedly vexed in the same matter.[8]  In Coulton v Holcombe,[9] the High Court said that it is fundamental to the due administration of justice that issues between the parties are ordinarily settled at trial.  It follows that the tendency to treat a trial as the first round of a contest that will last until one side or the other exhausts its funds or available avenues of appeal has to be resisted.  Litigation has its limitations, not least because the parties are generally free to frame the issues and because the outcome is partly the result of an adversarial process.  Because of this, it is often possible to argue that, if the trial had been conducted differently, or different evidence had been presented, the outcome might have been different.  As Lord Wilberforce said in The Ampthill Peerage, the law aims at providing the best and safest conclusion compatible with human fallibility and, having reached that solution, it closes the book.[10]

   [7][2021] QCA 58 at [8]-[9].

   [8]See eg Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 per Lord Bingham.

   [9](1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ.

   [10][1977] AC 547 at 569.

8. It is for this reason that leave to appeal a decision of QCATrequires leave.  Leave will not be granted unless there are reasonable prospects of establishing that there has been an error of law and that an appeal has reasonable prospects of success.  Also, a mere demonstration of error is, generally, not sufficient and an applicant must show that an appeal is necessary to correct a substantial miscarriage of justice.

9. In this case the facts have been investigated three times.  Every time the outcome depended on a tribunal’s conclusion about the facts of the matter.  The applicant’s contention that the appeal tribunal erred in its appreciation of the scope of a police officer’s duty to investigate is without merit[11] because the tribunal’s reference to the applicant’s lack of instruction or permission to pursue his inquiries was not a statement of law but a statement of fact.  The tribunal’s conclusion that the applicant was not acting in the performance of his duties was the ultimate finding and it depended upon a consideration of the applicant’s excuses for his actions, which were matters of fact, and which were rejected as insufficient.  No arguable case of a substantial miscarriage of justice has been demonstrated.

   [11]Based upon a reading of the tribunal’s reasons in Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2) [2021] QCATA 42 at [63] (Deputy President Judge Allen QC and Member Browne).

10. The application should be refused with costs.

11. MORRISON JA:  I have read the reasons of Sofronoff P and agree with those reasons and the order his Honour proposes.

12. BODDICE J:  I agree with Sofronoff P.