Kennedy v Deputy Commissioner Stewart

CITATION: Kennedy v Deputy Commissioner Stewart [2012] QCATA 258

PARTIES:	Brian George Kennedy (Applicant/Appellant)
v
Deputy Commissioner Ian Stewart (Respondent)

APPLICATION NUMBER: APL023-12 / APL077-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member
Ken Barlow SC, Member

DELIVERED ON: 7 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:

The appellant’s application for leave to appeal or appeal in APL023-12 is dismissed.1.    

The respondent’s application for leave to appeal or appeal in APL077-12 is dismissed.2.    

CATCHWORDS:

Misconduct – where charge of dishonestly gaining a benefit substantiated – where dishonesty an element of the charge – whether the Tribunal made findings that the conduct of the appellant was dishonest – whether reasons demonstrate the question of dishonesty was considered by the Tribunal

Sanction – whether sanction imposed inadequate for the appellant’s conduct – where imposition of sanction an exercise of discretion – whether discretion miscarried – whether a basis established for interference with the sanction imposed

Queensland Civil and Administrative Tribunal Act2009, s 142
Police Service Administration Act 1990, s 7.4(3)

R v Easton (1994) 1 Qd R 531
R v Laurie (1987) 2 Qd R 762
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Police Service Board v Morris (1985) 156 CLR 397
Aldrich v Ross [2001] 2 Qd R 235
House v R (1936) 55 CLR 499

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Zillman of counsel instructed by Gilshenan and Luton

RESPONDENT: Mr McLeod of counsel instructed by the Queensland Police Service Legal Officer

REASONS FOR DECISION

1. Mr Kennedy is a Senior Sergeant serving in the Queensland Police Service.  In 2009 he was the subject of an investigation for improper conduct which resulted in disciplinary proceedings being brought against him.  He was charged with three counts of improper conduct.  The Deputy Commissioner found that the charges were substantiated and imposed a sanction that he be dismissed from the Queensland Police Service.

1. Sgt Kennedy applied to the Tribunal for review of the Deputy Commissioner’s decision and on 22 December 2011 the Tribunal set aside two of the charges as being unsubstantiated, and confirmed one charge. 

1. The charge confirmed was that:

Between the 15^th day of April 2008 and the 24^th day of January 2009 at Mount Isa or elsewhere your conduct was improper in that you:-

(a)   Dishonestly gained the benefit of a “Trailblaza” portable camping fridge the property of the Mt Isa Police Citizens Youth Club.

Further and better particulars

Investigations have identified that a “Trailblaza” portable camping fridge was donated by Margaret Emily Albeiz for the assistance of the Mt Isa Police Citizens Youth Club.  The investigations have identified you:-

·        Utilised the said Trailblaza portable camping fridge at your (former) residence at Mt Isa;

·