O'Keeffe v Rynders, Deputy Commissioner

[2011] QCAT 119

CITATION: O'Keeffe v Rynders, Deputy Commissioner [2011] QCAT 119

PARTIES:	Mr John Damian O'Keeffe
v
Ms Kathy Rynders Deputy Commissioner

APPLICATION NUMBER:   MSR001-09  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     22 March 2011

HEARD AT:  Brisbane

DECISION OF: Mr James Thomas AM QC, Member

DELIVERED ON: 22 March 2011

DELIVERED AT:      Brisbane

ORDERS MADE: The application to cross-examine the four named witnesses is refused.

CATCHWORDS:  Police Misconduct Review – application to call and cross-examine persons whose evidence was before the original decision-maker – failure to make such application when previous opportunities – fishing expedition – section 219H of CMC Act 2001 – discretionary considerations – application refused

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr John Damian O'Keeffe represented by Mr T D Gardiner
RESPONDENT:	Ms Kathy Rynders Deputy Commissioner represented by Mr P Davis SC and Mr S McLeod

REASONS FOR DECISION

1. This appeal/review was initiated before the commencement of the Queensland Civil and Administrative Tribunal.  However counsel for the parties are agreed that in the light of subsequent events it is governed by the Queensland Civil and Administrative Tribunal Act 2009 and by the enabling act, the Crime and Misconduct Act 2001 rather than the Misconduct Tribunals Act 1997. In particular, I am bound by the provisions of section 219H of the CMC Act.

2. At the outset counsel for the appellant made an application for a direction that four named witnesses be summoned by the Tribunal for cross-examination in the present appeal.  If received, the evidence obtained under cross-examination would be added to the original record of evidence and be taken into account by me, along with the original evidence received by the original decision-maker.

3. Counsel for the appellant resisted the characterisation of such evidence as “fresh evidence” contending that the calling of such evidence would merely be the remedying of a defect in procedural fairness before the original decision-maker.  Even if that were so, it would still result in the receipt of new evidence. 

4. Counsel for the respondent likewise submitted that this is not an application to call “new evidence” because we do not yet know what it is.  However I think that it has the character of new evidence whatever it turns out to be.  He further submitted that if the present application is really an appeal against alleged procedural unfairness by the original decision-maker, this Tribunal has no jurisdiction to entertain an appeal on such a ground.  The latter part of the submission is probably correct in that the duty of this Tribunal is to look at the matter anew and to make its own decision irrespective of whatever errors might or might not have been made by the original decision-maker.  It is not an appeal in the strict sense as is made clear in the decision of Aldrich v Ross [2001] 2 Qd R 235. It is a fresh hearing on the merits and its purpose is to produce the correct and preferable decision. That last sentence is a direct reference to section 20 of the Queensland Civil and Administrative Tribunal Act 2009.

5. Now irrespective of whether or not the application is characterised as an application to call new evidence, it is this Tribunal’s duty to reach a decision in the manner prescribed and on the materials designated by statute, in particular section 219H. 

6. Subsection (1) of that section declares that the present review is by way of rehearing on the original evidence given in the proceeding before the original decision-maker.  Subsection (2) however permits an exception allowing the Tribunal to give leave to adduce fresh, additional or substituted evidence, which is classified as “new evidence”, but only if satisfied (relevantly for present purposes) that “in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence”.  (I mention in passing that no attempt was made to rely on section 219H(2)(a) which is a statutory formulation of the common-law test requiring that the party did not know or could not reasonably be expected to have known of the existence of the evidence).  Subsection 3 then declares that the review is by way of rehearing on the original evidence and on the new evidence adduced.

7. This is a very old matter, the relevant events of which occurred in February 2004.  The application is to summon, for the first time, four citizens who gave evidence to the CMC investigation during 2006 and 2007.  It is a belated application which first saw the light of day only last week.  A request for cross-examination or further examination of these witnesses could have been made before the original disciplinary officer in 2008 but was not.  The present request could also have been made in the subsequent misconduct hearing in 2008 or again during the directions hearing in QCAT last January.

8. Furthermore, and importantly, it seems to be a fishing expedition.  No particular foundation was able to be laid or suggested by counsel calling for the witnesses’ interrogation other than that they ought to be “tested” and that failure to do so would be a denial of natural justice.

9. In this context I note that they were subjected to fairly lengthy interrogation by police officers during the CMC investigation.  The records of all the statements and interviews have been in the possession of the respondent for a long time and if there are discrepancies in the versions, then counsel may make any relevant point and his client has the benefit of the Briginshaw test.  Until now apparently the appellant has been content to proceed on that basis.  It is also obvious that the memories of the witnesses will have faded since the relevant time and bringing them to this Tribunal for cross-examination is likely to be oppressive and unrewarding.  It would also create further delay in this matter, a situation of which the appellant’s legal advisors have already seriously complained.  It is also possible that the introduction of cross-examination at this stage would provoke a cross-application to cross-examine other witnesses who say otherwise. 

[10]  The system under which these matters are determined is a peculiar one and in many respects unsatisfactory and it probably needs legislative remedy.  I have previously adverted to this in CMC v Chapman OCR015-10, 4 November 2010 and 8 December 2010.  I may say more about this aspect when I prepare a judgment in the principal proceedings.

[11]  Counsel for the appellant, in a very helpful and carefully researched submission, contended that by following the usual procedure the respondent Rynders caused a miscarriage of justice and that she should not have determined the matter without further testing of these witnesses by a process of cross-examination.  But she had no power to require them to attend, and the submission seems unrealistic in the light of the procedures that are in place for a determination of these disciplinary matters. Counsel submitted that alternatively Commissioner Rynders could have referred the matter back to the CMC for further investigation, but both these submissions face the difficulty that the appellant and his counsel did not urge her to do so at the time.

[12]  I can envisage cases in which an application of the present kind would succeed in this Tribunal, but I do not think that this is one of them.  Quite simply I don’t think it is in the interests of justice to delay this old matter further by authorising a fishing expedition.  At this stage then, my ruling is that the application to cross-examine the four named witnesses is refused.