SUPREME COURT OF QUEENSLAND
CITATION: Lee v Crime and Corruption Commission & Anor [2015]
QSC 226PARTIES: ANTHONY LEE (applicant) v
CRIME AND CORRUPTION COMMISSION(first respondent)
andCOMMISSIONER OF POLICE (second respondent) FILE NO: No 2174 of 2015 DIVISION: Trial Division PROCEEDING: Civil Application ORIGINATING Supreme Court at Brisbane COURT: DELIVERED ON: 4 September 2015 DELIVERED AT: Brisbane HEARING DATE: 21 April 2015 JUDGE: Daubney J ORDERS: 1. The originating application is dismissed.
2. The applicant shall pay the respondents’ standard costs (including any reserved costs) of and incidental
to the originating application.
CATCHWORDS:
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where the applicant is a Police Officer with the Queensland Police Service – where
the first respondent provided notice that the first respondent would assume responsibility for the investigation of allegations against the applicant under s 48(1)(d) of the Crime
and Corruption Act 2001 – whether the first respondent has power under s 48(1)(d) of the Crime and Corruption Act 2001 to assume responsibility for the investigation of the allegations against the applicant.
Crime and Corruption Act 2001, s 15, s 20, s 33, s 34, s 35, s 41, s 42, s 45, s 46, s 48, s 49, s 50, s 51, s 219BA, s 219G, s 219I
Crime and Misconduct Act 2001, s 48, 219G, 219H Crime and Misconduct and Other Legislation Amendment Act 2014
Queensland Civil and Administrative Tribunal Act, s 20, s 23Kabourakis v Medical Board of Victoria [2006] VSCA 301 Kitching & Anor v Queensland Commissioner of Police & Ors [2010] QSC 303
Lee v Crime and Corruption Commission & Anor [2014]
QCATA 326
Minister for Immigration v Bhardwaj (2002) 209 CLR 597Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 COUNSEL: P Davis QC and A Scott for the applicant
R N Traves QC and EP Mac Giolla Ri for the first
respondent
C Capper (sol) for the second respondentSOLICITORS: Queensland Police Union Legal Group for the applicant
Official Solicitor for the Crime and Corruption Commission
for the first respondent
Legal Division, Public Safety Business Agency for the
second respondent
The applicant has applied for a declaration that the first respondent (“the CCC”) has no
power under s 48(1)(d) of the Crime and Corruption Act 2001 (“the Act”) or otherwise
to assume responsibility for a particular investigation of certain allegations made against
the applicant.
Several preliminary points may be noted:
(a) As will appear, the circumstances of this case extend to a period prior to the commencement of the Crime and Misconduct and Other Legislation Amendment
Act 2014 which had the effect, amongst other things, of transforming the Crime and
Misconduct Commission (“CMC”) into the CCC. Counsel for the parties were
content for this matter to be determined on the basis of the current legislative
provisions;
(b) The solicitor for the second respondent, the Commissioner of Police, informed me that the second respondent abides the order…
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Details
- AGLC
- Lee v Crime and Corruption Commission [2015] QSC 226
- Case
- [2015] QSC 226
- Decision Date
CaseChat Overview and Summary
In the case of Lee v Crime and Corruption Commission, the applicant, a police officer, sought judicial review of decisions made by the Queensland Crime and Corruption Commission (QCCC). The key issues before the court involved the process and appropriateness of the disciplinary action taken against the applicant, particularly the imposition of a suspended sanction. The court was required to determine whether the QCCC had correctly applied its internal policies and whether the decisions made were fair and justifiable.
The Judicial Member examined the clarity and appropriateness of the disciplinary decisions made by the QCCC. The Member noted concerns about the lack of clear directions and the ambiguous nature of the 'summary of fault conduct', which contributed to the unsatisfactory outcome. The Member also highlighted that the charge laid against the applicant was less severe than it could have been and questioned the appropriateness of imposing a fully suspended sanction. These issues, combined with the virtually unconditional nature of the suspension, meant the applicant faced no significant burden from the sanction. The Member concluded that the decision to impose a suspended sanction needed resolution before the proceedings could be finalised.
The court considered whether additional evidence should have been admitted during the review process before the Queensland Civil and Administrative Tribunal (QCAT). The Member held that the QCAT member did not err in ordering additional evidence to be received. The court also assessed whether QCAT should proceed with a fresh hearing or whether the decision should be set aside and returned to the decision-maker for reconsideration. After weighing the arguments, the Member decided that the decision to impose a suspended sanction should be set aside, and the matter should be returned to the decision-maker for further consideration under the Anti-Corruption and Discipline Policy (ACDP).
The court ordered that the originating application be dismissed, and the matter be remitted back to the decision-maker for reconsideration in accordance with the ACDP. This decision ensured that the disciplinary process would be revisited to address the concerns raised about the appropriateness and fairness of the imposed sanction.
The Judicial Member examined the clarity and appropriateness of the disciplinary decisions made by the QCCC. The Member noted concerns about the lack of clear directions and the ambiguous nature of the 'summary of fault conduct', which contributed to the unsatisfactory outcome. The Member also highlighted that the charge laid against the applicant was less severe than it could have been and questioned the appropriateness of imposing a fully suspended sanction. These issues, combined with the virtually unconditional nature of the suspension, meant the applicant faced no significant burden from the sanction. The Member concluded that the decision to impose a suspended sanction needed resolution before the proceedings could be finalised.
The court considered whether additional evidence should have been admitted during the review process before the Queensland Civil and Administrative Tribunal (QCAT). The Member held that the QCAT member did not err in ordering additional evidence to be received. The court also assessed whether QCAT should proceed with a fresh hearing or whether the decision should be set aside and returned to the decision-maker for reconsideration. After weighing the arguments, the Member decided that the decision to impose a suspended sanction should be set aside, and the matter should be returned to the decision-maker for further consideration under the Anti-Corruption and Discipline Policy (ACDP).
The court ordered that the originating application be dismissed, and the matter be remitted back to the decision-maker for reconsideration in accordance with the ACDP. This decision ensured that the disciplinary process would be revisited to address the concerns raised about the appropriateness and fairness of the imposed sanction.
Orders
Orders of the court
1. The originating application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Judicial Member then turned to the detail of the matter before him: “Reviewable Decisions and Ultimate Issues [59] It is not immediately obvious what ‘decisions’ have been made by the The Judicial Member observed that the absence of sufficiently clear directions and the “amorphous content of the ‘summary of fault conduct’ undoubtedly contributed to the present unsatisfactory situation”.[42] The Judicial Member identified other points of concern with the process and outcome that had occurred so far. In particular, he said that the “charge that was laid was less serious than might reasonably have been laid”.[43] The Judicial Member also referred to the unsatisfactory nature of the decision which had been made to impose a fully suspended sanction on the applicant, noting questions as to the availability of a power to impose such a suspended sanction, and saying that this was an issue that would need to be resolved before the present proceedings could be satisfactorily finalised, and noting that the “virtually unconditional suspension relieved [the applicant] of any significant burden under the order”.[44] The Judicial Member said: After addressing other matters, the Judicial Member then turned to the question of whether the further evidence should have been allowed on the review before the QCAT member. He held that no error had been demonstrated in the QCAT member’s decision to order that additional evidence be received on the QCAT review. The Judicial Member then turned to discussing the way in which the matter should proceed, and particularly whether QCAT should proceed with the present review by way of a fresh hearing under s 20 of the QCAT Act, or whether the decision (i.e. the decision under the ACDP to impose a suspended sanction by way of disciplinary action) should be set aside and returned to the decision-maker for reconsideration. After considering the competing arguments, the Judicial Member said: The “Commissioner’s Circular of 30 November 2012” was the ACDP policy document to which I referred above, in [13]. Clause 2.5 of that Policy set out the process to be followed for identifying whether the summary of facts which was the subject of the ACDP process disclosed sufficient grounds for disciplinary action, and if so, the considerations relevant to determination of the appropriate sanction. In other words, the outcome before the Judicial Member was that the decision to impose a suspended sanction on the applicant under the ACDP was set aside, and “the matter” (i.e. the disciplinary proceeding against the applicant) was remitted back to the decision-maker for further consideration under the ACDP process. Clause 2.5 of the ACDP policy provides: “2.5 Prescribed Officer: Review of ‘Form A’ The nominated Prescribed Officer will only be provided the Form A. If the Prescribed Officer, on an assessment of the summary of facts contained in the Form A, considers: (i) there are sufficient grounds for disciplinary action, then the Prescribed Officer will proceed with the ADCP; (ii) there are exceptional circumstances to warrant the inclusion of additional particularly relevant material for the Prescribed Officer to consider when making a determination, a request may be made to the Professional Practices Manager to provide the additional material. Any additional material will generally then be provided to the subject officer with the Form A; (iii) there is insufficient information to make a determination on the matter, the Prescribed Officer should recommend to the Assistant Commissioner, ESC, that the matter be returned to the appropriate PPM for further inquiries or investigation; or (iv) there is not sufficient grounds for disciplinary action, the Prescribed Officer should recommend to the Assistant Commissioner, ESC, that the matter be finalised with no further action as the imposition of a sanction would not achieve one of the purposes of discipline and that managerial action may be more appropriate. In identifying the proposed sanction, the Prescribed Officer will have regard to relevant considerations including: (i) the nature and circumstances of the conduct; (ii) the number of allegation/s or incident/s of conduct; (iii) comparative sanctions; (iv) sanctions previously imposed on the subject officer; (v) favourable comments given to the subject officer; (vi) previous substantiated complaints against the subject officer; (vii) indications of insight, professional growth, rehabilitation by the subject officer since the conduct that led to the allegation/s; (viii) any reduction in sanction considered appropriate in anticipation of the subject officer’s acceptance of the ACDP; and (ix) the purpose of discipline as contained in the Human Resources Policies. The Prescribed Officer will ensure the Form A identifies: (i) the Prescribed Officer’s proposed classification of the conduct; (ii) the Prescribed Officer’s proposed sanction; and (iii) reasons the proposed sanction and classification of conduct are considered appropriate. In the case of a proposed ‘misconduct’ classification the Prescribed Officer must identify in their reasons the relevant aspect of the definition, for example, identify the conduct as ‘improper’ or ‘does not meet the standard of conduct the community reasonably expects’. The Prescribed Officer must link the completed Form A to the Client Service System (CSS).”
Ratio Decidendi
Legal Principle Established
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