Officer JGB v Deputy Commissioner Gollschewski - [2017] QCAT 146

CITATION:	Officer JGB v Deputy Commissioner Gollschewski & Anor [2017] QCAT 146
PARTIES:	Officer JGB (Applicant)
v
Deputy Commissioner Stephen Gollschewski Crime and Corruption Commission (Respondents)
APPLICATION NUMBER:	OCR176-15
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	8 February 2017
HEARD AT:	Brisbane
DECISION OF:	Member Howard
DELIVERED ON:	5 May 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision of Deputy Commissioner Gollschewski about sanction is confirmed.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – Sanction – where substantiated acts of misconduct include acts of domestic violence; threats to kill another person; improper behaviour towards wife and more junior officers in presence of wife; without official purpose accessing confidential information from police database– whether regard should be given to Deputy Commissioner’s reasons for decision – where not all of the same matters substantiated on review – whether principle adopted in sentencing when criminal conviction on two or more counts applicable – where mitigating circumstances relied upon – whether the misconduct meets community expectations of a serving member of the police service – whether dismissal should be suspended Crime and Corruption Act 2001 (Qld), s 219A, s 291L Police Service (Discipline) Regulations 1990 (Qld), reg 3 Aldrich v Ross (2001) 2 Qd R 235 Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320 Chapman v Crime & Misconduct Commission & Rynders [2012] QCATA 016 Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 Crime and Corruption Commission v Deputy Commissioner Gollschewski & Majewski (No 2) [2014] QCAT 488 Crime and Misconduct Commission v Acting Deputy Commissioner Barron & Alexander [2014] QCAT 241 Crime & Misconduct Commission v Swindells & Gardiner [2010[ QCAT 490 DA v Deputy Commissioner Stewart [2011] QCAT 102 DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162 Deputy Commissioner Stewart v Dark [2012] QCA 228 Flegg v Crime & Misconduct Commission [2014] QCA 42 Hardcastle v Commissioner of Police (1984) 53 ALR 593 O’Brien v Assistant Commissioner Gollschweski [2014] QCATA 148 McKenzie v Acting Commissioner Wright [2011] QCATA 309 Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348 Officer TXS v Acting Deputy Commissioner McCallum [2011] QCAT 739 Police Service Board v Morris (1985) 156 CLR 397 Ryan v R (1982) 149 CLR 1 Scott v Assistant Commissioner Peter Martin [2015] QCAT 423 Stirling v Legal Services Commissioner [2013] VSCA 374 Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590
APPEARANCES:
APPLICANT:	Mr M Black of Counsel, instructed by Gilshenan and Luton appeared for Officer GJB
FIRST RESPONDENT: SECOND RESPONDENT:	Mr JW Merrell of Counsel, instructed by the Queensland Police Service Legal Unit, appeared for Deputy Commissioner Gollschewski Ms S Harbidge, in-house lawyer for the Crime & Corruption Commission

REASONS FOR DECISION

Officer JGB was a senior constable in the Queensland Police Service (‘QPS’). On 11 September 2015, Deputy Commissioner Stephen Gollschewski (‘the Deputy Commissioner’) decided that…

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: [2017] QCAT 146
Decision Date: 5 May 2017

CaseChat Overview and Summary

Officer JGB sought judicial review of a decision by Deputy Commissioner Gollschewski to dismiss him for misconduct. The misconduct included acts of domestic violence, threats to kill another person, improper behaviour towards his wife and more junior officers, and unauthorised access to confidential information from the police database. The Deputy Commissioner considered the misconduct serious enough to warrant dismissal.

The primary legal issue was whether the Deputy Commissioner's reasons for the dismissal decision should be given regard. Another issue was whether the principle applicable when a person is convicted of two or more criminal counts, where not all charges are substantiated, should be applied to internal police disciplinary proceedings. Additionally, the court examined whether mitigating circumstances could be considered, and if the misconduct met the community's expectations of a serving police officer. The final issue was whether the dismissal should be suspended.

The court found that the Deputy Commissioner's reasons were sufficiently detailed and provided a clear basis for the decision, thus they should be given regard. The court held that the principle applied in sentencing when a person is convicted of multiple criminal counts could be applied in internal police disciplinary proceedings. The court also considered the mitigating circumstances and concluded that the misconduct did not meet the community's expectations of a serving police officer. However, the court found that the misconduct was serious enough to warrant dismissal. The application for judicial review was dismissed, and the Deputy Commissioner's decision was confirmed.

Orders

Orders of the court

1. The decision of Deputy Commissioner Gollschewski about sanction is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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