McCarthy v Crime and Misconduct Commission

[2009] QSC 302

SUPREME COURT OF QUEENSLAND

CITATION:

McCarthy v Crime and Misconduct Commission [2009] QSC 302

PARTIES:

CHRISTIAN ROBERT McCARTHY
(applicant)
v

CRIME AND MISCONDUCT COMMISSION
(respondent)

FILE NO/S:

BS 1880/09

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 September 2009 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2009

JUDGE:

Byrne SJA

ORDER:

The Application is dismissed. The Applicant pay the Respondent’s costs of and incidental to the application to be assessed. 

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS –where applicant seeking judicial review of decision of Crime and Misconduct Commission to refer investigation of applicant’s complaint to the Queensland Police Service – whether decision to refer investigation so unreasonable no reasonable person could have made it

ss 34(c), 46(2)(b), 46(2)(e) Crime and Misconduct Act 2001

s 20 Judicial Review Act 1991

COUNSEL:

Mr J Allen for the respondent

SOLICITORS:

Ms S L Wood of Crime and Misconduct Commission for the respondent

1. This is an application seeking a statutory order for review in respect of a decision by the respondent (“the CMC”) made in response to a complaint by the applicant about the conduct of police officers.

1. The decision in question was communicated by letter dated 10 February 2009, by which the applicant was informed that the CMC would not take further action on his complaint of perjury by a police officer unless the applicant accepted that his complaint be investigated, initially, by the Queensland Police Service pursuant to section 46(2)(b) or (e) of the Crime and Misconduct Act 2001.

1. I interpolate that the applicant had made other complaints which he sought be investigated.  But these were merely repetitious of complaints made years earlier which had been the subject of investigation by the Queensland Police Service at the request of the CMC.  The CMC decided not to further investigate those old complaints.

1. The applicant would not agree to the suggestion that the Queensland Police Service initially investigate, subject to the monitoring of the CMC, his complaint of perjury. 

1. He now contends, in effect, that the CMC decision not to conduct the investigation itself, using its own resources, was unlawful because (it seems to be said by him) the CMC possessed information to show that the Queensland Police Service was incapable of conducting a proper investigation into the subject matter of his most recent complaint.

1. There was no attempt by the applicant to relate his challenge to a ground stated in section 20 of the Judicial Review Act 1991. However, as best I can understand it, the essence of the challenge appears to be that the CMC's decision to involve the Queensland Police Service in the investigation was so unreasonable that no reasonable person could have made it.

1. Such a contention lacks substance.

1. The applicant complains about an investigation made by the Queensland Police Service, at the request of the CMC, into complaints he made in 2003 to the CMC of misconduct by two police officers: one of them the officer against whom the new perjury allegation is made.  Those officers interviewed him in connection with serious offences.

1. The major complaint appears to be in respect of that old investigation that the officer who interviewed him in 2003 did not electronically record the interview.  The applicant also contends that the officer, despite what the applicant asserts is a contravention of the Police Powers and Responsibilities Act 2000 in connection with a failure to record the interview, has not been charged with any breach of that legislation.

1. The absence of such a charge is, I gather, said to demonstrate that the Queensland Police Service should not be trusted to undertake the investigation into the perjury allegation.

1. The mere fact that a police officer has not been charged with an offence in connection with the kind of allegation now made - that is, of failure to record an interview – is scarcely a basis for supposing that it is beyond the capacity of the Queensland Police Service fairly to investigate the allegation of perjury now made.

1. Further, the evidence of Ms McFarlane, the officer who made the decision communicated in December to ask that the Queensland Police Service investigate the complaint pursuant to section 46(2)(b) of the Crime and Misconduct Act 2001, reveals that the decision is not shown to be unreasonable. Her testimony explained the justification for that decision, including reference to the statutory requirement imposed by section 34(c) of the Crime and Misconduct Act 2001 that:

"It is the Parliament's intention that the commission apply the following principles when performing its misconduct functions -

(c) Devolution - subject to the cooperation and public interest principles and the capacity of the unit of public administration, action to prevent and deal with misconduct in a unit of public administration should generally happen within the unit."

1. Ms McFarlane considered the pertinent matters and concluded that the Queensland Police Service could appropriately investigate the allegation in question “quite adequately”. And the material does not suggest a basis for supposing that her decision was even arguably wrong let alone so unreasonable that no reasonable person could have made it.

1. The application is therefore dismissed.

1. The costs should follow the event.

1. There will be a further order that the applicant pay the respondent's costs of and incidental to the application to be assessed.