O'Brien v Assistant Commissioner Taylor & Anor - [2021] QCATA 12

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

O’Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12

PARTIES: KATIE O’BRIEN

(appellant)

v

ASSISTANT COMMISSIONER PAUL TAYLOR

CRIME AND CORRUPTION COMMISSION

(respondents)

APPLICATION NO:

APL147-19

ORIGINATING APPLICATION NO:

OCR085-18

MATTER TYPE:

Appeals

DELIVERED ON:

29 January 2021

HEARING DATE:

28 July 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member
Member Kanowski

ORDERS:
1.   Leave to appeal is refused.

2.   The appeal is dismissed.

3.   Other than to the parties to the proceeding, publication is prohibited of the names or any information that could identify or lead to the identification of any persons other than Katie O’Brien, Assistant Commissioner Paul Taylor and any other police officers.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – where disciplinary sanction imposed – whether sanction unreasonable

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where disciplinary sanction imposed – whether relevant issues addressed

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – PARTICULAR CASES – where police officer found unfit to be a sergeant – whether finding was correct

Police Service Administration Act 1990 (Qld), s 7.4

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1), s 142(3)(b), s 146

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95
Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96
Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151
Crime and Corruption Commission v Queensland Police Service & Anor [2015] QCATA 15
Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490
Flegg v CMC & Anor [2014] QCA 42
Flegg v Crime and Misconduct Commission and Anor [2013] QCA 376
Garth v Queensland Police Service [2013] QCATA 357
House v The King (1936) 55 CLR 499
Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18
O’Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 127
O’Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148
Shi v Migration Agents Registration Authority [2008] HCA 31

Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375

APPEARANCES & REPRESENTATION:

Applicant:

MM Black of counsel instructed by Gnech Associates

1^st Respondent:

JL Gorry, in-house counsel

2^nd Respondent:

ML Maccarone, legal officer, Queensland Police Service Legal Unit

REASONS FOR DECISION

Introduction

Ms Katie O'Brien, an officer in the Queensland Police Service, seeks in these appeal proceedings to challenge a disciplinary sanction imposed by the Tribunal…

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.

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Details

Case: [2021] QCATA 12
Decision Date: 29 January 2021

CaseChat Overview and Summary

The case of O'Brien v Assistant Commissioner Taylor & Anor involved a challenge to the disciplinary action taken against Katie O'Brien, a police officer, by Assistant Commissioner Paul Taylor. The Queensland Civil and Administrative Tribunal (QCAT) had previously demoted O'Brien from the rank of Sergeant to Senior Constable and imposed additional training requirements. O'Brien appealed against this decision, arguing that the sanction was unreasonable, that the Tribunal had addressed the wrong issues, and that it had erred in concluding she was unfit to be a Sergeant. The appeal was heard in the Queensland Court of Appeal.

The legal issues before the Court were whether the QCAT's decision to impose the disciplinary sanction was unreasonable, whether the Tribunal had addressed the relevant issues in deciding to demote O'Brien, and whether the Tribunal had correctly concluded that O'Brien was unfit to be a Sergeant. The Court had to consider the evidence and arguments presented by both parties and determine if the QCAT had exercised its discretion appropriately, or if there was any error in the findings of fact or principle.

In its judgment, the Court of Appeal found that the QCAT's decision was not unreasonable and that the Tribunal had addressed the relevant issues in deciding to demote O'Brien. The Court noted that the Tribunal had carefully considered the seriousness of O'Brien's misconduct, her experience, and the need to deter others. The Court also found that the QCAT had not erred in concluding that O'Brien was unfit to be a Sergeant, given the circumstances of the case. The Court held that the QCAT had correctly exercised its discretion and that there was no basis to interfere with its decision.

The Court dismissed the appeal and refused leave to appeal, upholding the QCAT's decision. The Court also made an order prohibiting publication of the names or any identifying information of persons other than O'Brien, Assistant Commissioner Taylor, and any other police officers involved in the proceedings.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The appeal is dismissed.

3. Other than to the parties to the proceeding, publication is prohibited of the names or any information that could identify or lead to the identification of any persons other than Katie O’Brien, Assistant Commissioner Paul Taylor and any other police officers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The role of the Tribunal in conducting a review is to produce the correct and preferable decision.[4] On 15 May 2019, the Tribunal set aside Assistant Commissioner Taylor’s decision, and substituted a decision that (in summary):(a)Ms O'Brien was demoted from Sergeant pay-point 3.3 to Senior Constable pay‑point 2.10 effective from 29 March 2018;(b)Ms O'Brien was eligible to progress subject to the usual industrial requirements effective from 29 March 2018; and (c)within 12 months, Ms O'Brien must complete three courses: Ethics and Ethical Decision-Making; Information Security; and QPRIME Fundamentals.[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1).The Tribunal’s reasons for decision in summary The Tribunal in its reasons made several references to the seriousness of the misconduct. It regarded the seriousness as exacerbated by the fact that it commenced only a month after Ms O'Brien had been promoted to the rank of Sergeant.[5] The Tribunal said that the disclosure of the intelligence submission involved a ‘gross lack of professional judgment’,[6] as such a submission can contain highly sensitive information. Disclosure could lead to the identification of a police informant, though it was not suggested that such identification had resulted in this case. Further, the Tribunal considered that the use of Constable Ayling’s logon details for one of the accesses constituted a ‘serious failing’,[7] when Ms O'Brien should instead have been setting a good example to the more junior officer. The Tribunal noted that Ms O'Brien was an officer with some seven years’ experience.[5]O’Brien v AC Taylor, [46].[6]Ibid [35].[7]Ibid. The Tribunal accepted submissions made on behalf of Ms O'Brien that she had been naïve in her dealings with NT, and that the relationship had ‘evolved into something unhealthy’.[8] Ms O'Brien regarded NT not only as a friend but also as a useful informant, describing her relationship with NT as a professional relationship and a friend. This was despite warnings from other police to be careful in dealing with NT and TT. The Tribunal acknowledged evidence about NT’s vindictive character (but considered it irrelevant), and submissions that Ms O'Brien may have been ‘clouded’ in her dealings with NT.[9] The Tribunal accepted that Ms O'Brien’s conduct may have been out of character.[10] [8]Ibid [30].[9]Ibid [31].[10]Ibid [36]. The Tribunal also took into account a number of other matters, including the need to deter others,[11] before reaching the conclusion that a demotion in rank was necessary.[12] However, the Tribunal considered that demotion to Senior Constable pay-point 2.10 was more appropriate than demotion to Senior Constable pay-point 2.09 in view of the financial impact of demotion upon Ms O'Brien and her cooperation in the disciplinary process.[11]Ibid [44].[12]Ibid [48]. The grounds of appeal to be considered are those as amended with the Tribunal’s leave as filed on 3 December 2019.[13] In broad terms, ground 1 is unreasonableness of the sanction imposed; ground 2 is addressing wrong issues in deciding to demote Ms O’Brien; and ground 3 is concluding in error that Ms O’Brien was presently unfit to be a Sergeant.[13]Appeal Tribunal order made on 26 February 2020.

Ratio Decidendi

Legal Principle Established

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