Officer JXR v Deputy Commissioner Gollschewski
[2018] QCATA 55
•26 April 2018
CITATION: | Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55 |
PARTIES: | Officer JXR |
| v | |
| Deputy Commissioner Stephen Gollschewski (Respondent) | |
APPLICATION NUMBER: | APL244-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | 31 March 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O’Callaghan, Presiding |
DELIVERED ON: | 26 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. (i) On its own initiative and with the consent of the parties, the Appeal Tribunal directs that the Tribunal must make the necessary correction pursuant to section 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to its orders dated 29 July 2016 to reflect that it did not find Matters 1b)a) and 1b)b) to be substantiated; (ii) All procedural requirements under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) for the making of the correction are waived. 2. The Appeal is allowed. 3. (i) The Tribunal’s decision dated 29 July 2016 on substantiation of the disciplinary charge in respect of Matter 1d)b) dot point 2 is set aside; (ii) The following decision is substituted: Matter 1d)b) dot point 2 is not substantiated. (iii) Subject to the correction of the Tribunal’s decision as directed in order 1 and subject to order 3(i) and (ii) above, the Tribunal’s decision on substantiation of the disciplinary charge is otherwise confirmed. 4. The decision of the Tribunal dated 29 July 2016 in respect of sanction is confirmed. 5. Publication of the material before the appeal tribunal and the reasons for decision of the appeal tribunal other than in de-identified format are prohibited, except as authorised by this order: (i) the appeal tribunal’s reasons for decision may be published in a de-identified format as follows: (a) identification of JXR, his former wife, their extended family members, Senior Constable OL, and Constable AE must be avoided. (b) Other persons and police officers may be identified provided that publication of their names does not tend to identify JXR. (ii) The parties to the proceeding may disclose copies of the material before the appeal tribunal to third parties if lawfully requested or required to do so, including to prospective employers, employment agencies, government departments, and professional bodies and boards. (iii) Both parties have liberty to apply in respect of any proposed amendments to this non-publication order within 14 days of receiving these orders. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW - whether error of law in police disciplinary matter - where appeal relating to substantiation of disciplinary charge and sanction imposed – whether mitigating factors may be taken into account in deciding whether misconduct is substantiated POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT - whether error in exercise of discretion - whether error in imposing global sanction - whether error in treatment of original decision-maker’s reasons for decision Crime and Corruption Act 2001 (Qld) s 219A, Albrecht v Ainsworth & Ors [2015] QCA 220 |
APPEARANCES: | |
APPLICANT: | JXR represented himself |
RESPONDENT: | Deputy Commissioner Gollschewski was represented by Mr S McLeod of Counsel, instructed by Queensland Police Service Legal Unit |
REASONS FOR DECISION
JXR, at the time a senior constable in the Queensland Police Service (QPS), was dismissed effective 15 April 2015 as a result of disciplinary action taken by Deputy Commissioner Gollschewski (the Deputy Commissioner). JXR applied to the Tribunal for review of the Deputy Commissioner’s decision. Although some aspects of the disciplinary charge against JXR that had been found substantiated by the Deputy Commissioner were found not substantiated by the Tribunal, the sanction of dismissal was confirmed.
JXR has appealed the Tribunal’s decision. He submits that the Tribunal erred in finding that the remaining substantiated aspects of the disciplinary charge were substantiated as misconduct. He characterises the alleged errors as errors of law. He alleges a myriad of errors, but in large part, he argues that the Tribunal failed to consider relevant facts; considered irrelevant facts; and made findings that are not supported by evidence, as well as, not correctly applying the relevant standard of proof. He also appeals the Tribunal’s decision in respect of the sanction imposed on him, alleging error of law on the basis that the sanction of dismissal is manifestly excessive, unreasonable, unjust and is a misapplication of the Tribunal’s discretion.
The Deputy Commissioner submits that the Tribunal did not err and that the appeal should be dismissed. We observe that the Deputy Commissioner’s submissions in response to JXR’s detailed and extensive submissions are somewhat unhelpfully devoid of detail and references to ‘the evidence’ which he says support the Tribunal’s decision. We observe Counsel’s submissions that JXR’s framing of and submissions about his grounds of appeal are somewhat confusing. However, in response to JXR’s submissions of some 95 pages, we received just over eight pages of submissions from the Deputy Commissioner, providing little practical assistance to the Appeal Tribunal in considering JXR’s grounds of appeal and detailed submissions. Additionally, at the oral hearing, counsel for the Deputy Commissioner’s assertions that he was being put on the spot when requested to address specific matters were unhelpful.
That said, we acknowledge that the issues and arguments relied upon by JXR in respect each of the grounds are not in all instances, clear and/or straight-forward (and are somewhat repetitious), no doubt leading to the Deputy Commissioner’s counsel’s submissions about the difficulties in responding to the submissions.[1] We also observe that some of the submissions made in support of the grounds of appeal appear to mirror the arguments made by JXR before the Tribunal. However, this is not unusual in QCAT proceedings when a party or parties represent themselves. The Appeal Tribunal has made all reasonable attempts to understand and consider each of the grounds of appeal raised.
[1]Transcript of Proceedings, 31 March 2017, I-14, lines 25-35.
We expect that legal representatives will do likewise. We encourage more helpful submissions in future proceedings. Although these are appeal proceedings (rather than review proceedings in which the decision-maker has an obligation to assist the tribunal[2]), the Deputy Commissioner is obliged to act as a model litigant in the disciplinary jurisdiction. The most regrettable delay in the delivery of the Appeal Tribunal’s decision is due to a variety of factors. However, we observe that the lack of assistance from the Deputy Commissioner did not support a speedy determination.
[2]Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21.
There is a slip error affecting the Tribunal’s decision about substantiation of two aspects of the disciplinary charge. The Tribunal’s order does not record that Matter 1b)a) and Matter 1b)b) were found not substantiated by it. With the consent of the parties, we have made directions requiring that error to be corrected. For the reasons explained in these reasons for decision, we have allowed the appeal related to substantiation of the disciplinary charge on several grounds. The Tribunal’s order in respect of substantiation is set aside with respect to one aspect of the charge, namely Matter 1d)b) dot point 2. Subject to these matters, we have otherwise confirmed the Tribunal’s decision on substantiation.
We have confirmed the Tribunal’s decision in respect of the sanction imposed on JXR.
The Tribunal’s decision and orders
In the review proceeding, the learned Tribunal Member found allegations of misconduct substantiated against JXR as summarised below:[3]
[3]Reasons for decision, at [3-5].
Matter One
That between 11 September 2006 and 14 September 2014 at Bundaberg your conduct was improper when you:
a) Committed acts of domestic violence against [MR];
b) Knowingly provided false testimony before the Bundaberg Magistrates Court;
c) Threatened injury to a judicial officer and police officers in retaliation for their involvement in the making of a domestic violence order with you as the respondent spouse;
d) Whilst off duty behaved in a disorderly manner; and
…
For Matter 1a), (‘the counselling incident’) the following allegations were substantiated:
…
c) On 2 February 2012 during a counselling session with Relationships Australia you threatened [MR] when you stated, “How’s this for grounds for a DV order. I’m going to fucking kill you.” And “You had better watch your back or I am going to fucking hunt you down and fucking kill you.”
…
For Matter 1b), (‘the false testimony Incident’) the following allegations were substantiated:
…
c) Threatening to kill [MR] [sic], you falsely stated it was just a flippant remark.
…
For Matter 1c), (‘the threats against judicial and police officers’) the following allegations were substantiated:
…..you were named as the respondent spouse in a Queensland Police Service Application for a Domestic Violence order with your wife [MR] as the respondent.
Sergeant Ken Hendrie was the applicant for the Domestic Violence order and Justice Smith the presiding Magistrate, with Senior Constable Grigoris the police prosecutor and Sergeant Elder assisting in the process.
On 15 December 2012m [sic] in the course of his duties, you stated to Sergeant Brett Gillard:
a) “I’m not suicidal but I’m fucking homicidal I’ll tell you now.”;
b) “Oh yeah [ha ha} [sic] and there’s a few people that should fucking watch out.”;
c) “Tell you if I ever see Ken Hendrie fucking that SMITH cunt or any of those prosecutions from fucking Maryborough I will kill the cunts I’ll tell you that now you can go back and –“;
d) “- report that because I fucking will.”;
e) “I never want to see them cunts because I will fucking kill ‘em.”;
f) “well make sure you get this on tape, I will kill SMITH.” And
g) “I will kill HENDRIE and I will kill GREGORIS and I will kill ELDER if I ever, ever see them. So do with that what you like.”
For matter 1d), (‘the disorderly conduct’) the following allegations were substantiated:
Investigations have identified that on three occasions whilst off duty you were affected by alcohol and:
a) On 23 February 2013 police attended at the Central Hotel Bundaberg, in relation to an alleged disturbance, when exiting you screamed at Senior Constable [OL]:
“you fucking dog cunt, you slut, you fucking dog cunt.” “Come on slut, what are you going to do about it?” (‘the [OL] incident’)
b) On 14 September 2013 police attended at the intersection of Targo and Woongarra Streets, Bundaberg in relation to an alleged disturbance. Whilst police were talking to male aboriginal persons in attendance you:
. approached police and started to verbally abuse the group;
. tapped Constable David Morgan, one of the police in attendance on the “bottom”; and
. threatened Constable Roy Robinson, when you stated, “Your (sic) fucked, you wait til tomorrow”, and
. when speaking to Constable Anthony Edgar, in reference to Constable Roy Robinson you stated, “call off your little dog or I’ll sort the cunt out.” (‘the group incident’)
…
The Tribunal found that Matters 1a)a) (the pillow incident) and 1a)b) (the gun incident) and 1d)c) (disorderly conduct at the Brother’s Sports Club) as well as 1b)a) (false testimony about the pillow incident) and 1b)b) (false testimony about the gun incident) were not substantiated. As discussed, the sanction imposed on JXR was dismissal from the police service.
The Tribunal’s orders set aside the Deputy Commissioner’s decision in respect of Matters 1a)a), 1a)b) and 1d)c). However, the Tribunal’s orders did not reflect its decision to set aside the Deputy Commissioner’s findings in respect of 1b)a) and 1b)b).
As discussed earlier, correction is to be attended to by the Tribunal pursuant to the ‘slip rule’ pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). We have also made directions waiving compliance with the usual procedural requirements of the QCAT Act and QCAT Rules for a correction to be made.
The grounds of appeal: alleged error of law
At the oral hearing, the Appeal Tribunal indicated to the parties that it may characterise some issues raised by JXR’s appeal as alleged errors of fact or mixed fact and law. It was agreed that if this was ultimately the case, we would treat the appeal in relation to those grounds as an application for leave to appeal and appeal. However, upon reflection, all grounds of appeal raise alleged errors of law.
A party to a proceeding may appeal as of right against a decision of the tribunal that was not decided by a judicial member on a question of law.[4] In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the original tribunal for reconsideration.[5] An appeal on a question of law is an appeal in the strict sense. The appeal tribunal may only substitute its own decision based on the facts as found by the original tribunal, if the question of law disposes of the matter in its entirety.[6] Otherwise, the Appeal Tribunal must remit the proceeding to the Tribunal for determination according to law.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142.
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146.
[6]Ericson v Queensland Building and Construction Commission [2014] QCA 297, Albrecht v Ainsworth & Ors [2015] QCA 220; Harrison v Meehan [2017] QCA 315.
In his lengthy submissions, JXR prefaces discussion of his individual grounds of appeal, framing all of them as errors of law.
In relation to substantiation of the disciplinary charge, he describes the errors as breaches of natural justice (in relying on non-existent facts; failing to take relevant considerations into account; and failing to base the decision on logically probative evidence). In context, his submission (made in reliance upon Broadcasting Tribunal v Bond,[7]) relies upon the common law principle that an absence of evidence to support a finding or inference of fact gives rise to an error of law. Whereas the alleged errors are not (or not all) breaches of natural justice, we accept that making findings of fact and drawing inferences not supported by evidence; failing to take into account relevant considerations; and taking into account irrelevant considerations are errors of law.
[7](1990) 170 CLR 321, [94] (per Mason CJ).
JXR alleges 37 separate errors of law in substantiation. He raises numerous discrete alleged errors within many of the 37 alleged errors. Some are one-off issues. Some involve recurring issues.
As discussed earlier, in relation to sanction, JXR’s appeal is made on the basis that the Tribunal erred in the exercise of its discretion, resulting in the imposition of a sanction that is manifestly excessive, unjust and unreasonable.
JXR places substantial reliance on DA v Deputy Commissioner Stewart (No 2) (DA (No 2)) .[8] Indeed, he describes it as his primary argument on appeal.[9]
[8][2013] QCATA 162.
[9]Transcript of 31 March 2017, I-17, lines 35-40 and I-18, lines 5-22.
We address each of the grounds of appeal raised[10] in later paragraphs.
[10]Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119.
Application for fresh evidence
At the commencement of the hearing, JXR made an oral application for leave to rely upon fresh or new evidence,[11] largely as contained in the Appeal Books that he had filed with his submissions on the appeal. In particular, he sought leave to rely upon the following:
a) A report of Dr Jenkins;[12]
b) An extract from his Family Court of Australia decision;[13] and
Further, he sought to adduce oral evidence in relation to his life since the Deputy Commissioner’s decision to dismiss him.
[11]Leave is required under Crime & Corruption Act 2001 (Qld), s 219H.
[12]JXR’s Appeal Book, Volume 2, pp 483 to 485.
[13]JXR’s Appeal Book, Volume 2, p 486.
The Appeal Tribunal heard submissions from both parties in respect of the evidence proposed to be introduced in the appeal proceedings. The application regarding the Family Court decision was withdrawn by JXR. The Appeal Tribunal refused leave to adduce the other fresh evidence.
Oral reasons for decision were given at the hearing for the refusal.
In any event, we observe that the appeal is made on the basis of alleged errors of law only. It is therefore an appeal in the strict sense.
That said, it does appear that JXR has included in his appeal book and relies upon in making submissions in the appeal proceeding, at least some other documents that were not before the Tribunal. As far as we have located them, these are identified in these reasons for decision. There may be others in the voluminous material provided. Unfortunately, neither JXR nor the Deputy Commissioner drew them to our attention as fresh evidence during the appeal hearing.
A recurring alleged error of law relied upon by JXR in the appeal: the treatment of mitigating circumstances:
·Are defences available for disciplinary charges?
·If mitigating factors are not a defence to a disciplinary charge, can they affect whether conduct should be classified as a breach of discipline rather than misconduct?
JXR alleges error in multiple grounds of appeal (about substantiation of the various aspects of the disciplinary charge, as well as, about the imposition of sanction) that the Tribunal failed (in a variety of specified and unspecified ways) to have regard to his mitigating circumstances and in some instances, the defence of insanity, that he submits was available to him. In response, the Deputy Commissioner submits that the Tribunal considers mitigating circumstances only in relation to sanction, and that the Tribunal properly adopted this approach.
Although not well or clearly argued in his submissions, JXR clarified at hearing that he contends that a disciplinary charge may be equated to a criminal offence. In this regard, he argues that in criminal proceedings when a person has a legitimate defence, there is no offence at all.[14] In this regard, JXR submits in relation to some alleged errors that he had a defence of insanity, and in relation to others, a defence relating to mitigating circumstances. That said, he also submits on appeal that conduct which might otherwise be misconduct if substantiated, should be found to be a breach of discipline, because of mitigating circumstances.
[14]Transcript of 31 March 2017, I-40, lines 15-25.
This issue raised an apparently novel argument. (That said, since the Appeal Tribunal hearing in this proceeding, a somewhat similar argument has been unsuccessfully raised before the Tribunal in Caesar v Deputy Commissioner Brett Pointing).[15]
[15][2017] QCAT 169.
It is useful to consider the general issue/s raised here and refer back to them in considering the individual grounds of appeal/ alleged errors.
Caesar v Deputy Commissioner Brett Pointing
In Caesar, the Tribunal determined a police disciplinary review. Mr Caesar raised what was referred to as a preliminary question about whether misconduct could be substantiated against him (and then be sanctioned) in circumstances that there was psychiatric evidence of a diagnosed adjustment disorder and that as a consequence of his diagnosed mental illness, he did not fully appreciate the wrongness of the actions said to constitute the misconduct. Although the allegations pertaining to the conduct were admitted, Mr Caesar denied they constituted misconduct. Mr Caesar submitted that, as the former Misconduct Tribunal said in Melling v O’Reilly,[16] ‘there is a strong presumption’ that a charge of misconduct requires a culpable state of mind. (In Melling, the disciplinary charge of a false report was devoid of an allegation that the officer acted dishonestly, deliberately, negligently or recklessly.)
[16][1991] Misconduct Tribunal (unreported Appeal 6/1991) (Dr J Forbes).
Caesar also identifies a general principle in criminal proceedings that persons are presumed to be sane and possess a sufficient degree of reason as to take responsibility for his or her crimes, unless the contrary is proved.[17] For a defence of insanity to succeed, at the time of the crime the accused must have such a defect of reason from disease that he or she did not know the nature and quality of the act done, or if known, that he or she did not know it was wrong. Mr Caesar submitted that act/s of misconduct required a guilty mind, in that the acts were intentional, negligent or reckless. He argued that was consistent with the definition of misconduct and purpose of disciplinary proceedings because reasonable members of the public would not consider actions of a police officer improper or not meeting required expectations if the officer was unable to control or appreciate their actions.
[17]Re McNaughten’s Case (1843) 8 ER 718.
The Deputy Commissioner in Caesar submitted that the medical condition gave context to the conduct, but as the Court of Appeal said in Deputy Commissioner Stewart v Dark (Dark),[18] that did not bear strongly on the conclusions to be drawn about the officers character and integrity. He submitted that the question is whether the nature of the conduct was misconduct.
[18][2012] QCA 228, [35].
The Tribunal found that Mr Caesar’s psychiatric evidence did not support a finding that would establish the defence of insanity. It said that the defence was not available. However, and without directly saying that it did, the Tribunal appears to have accepted that if the medical evidence demonstrated the requisite matters, a defence of insanity would be available. (On the basis of our observations later explained, we would disagree with that conclusion.)
Our discussion of the relevant issues in JXR’s case
In relation to substantiation: Firstly, JXR places some reliance for his argument upon DA (No 2).[19] However, it does not assist him. In that decision, the Appeal Tribunal was considering the appropriate sanction to impose. It observed that the misconduct there largely occurred in the officer’s private life at a time of stress, although it reflected poorly on his character. It was in this context that the Appeal Tribunal also considered other relevant factors including evidence of rehabilitation. Accordingly, the authority relied upon by JXR is not relevant as it does not suggest that mitigating factors are to be taken into account in determining whether conduct is substantiated misconduct.
[19][2013] QCATA 162.
In JXR’s case, the medical evidence (as discussed later in these reasons for decision) would not support the availability of the defence of insanity, even if it applied in police disciplinary proceedings. Therefore, we do not need to decide whether it is available. However, for the reasons later discussed, we make the observation that it would not appear to us to be available. Further, we do not accept (for the reasons discussed in the following paragraphs) that mitigating factors or circumstances are a defence or relevant in determining whether conduct is substantiated as misconduct. (Further, even if mitigating circumstances were relevant to substantiation of a disciplinary charge, we observe that the medical evidence would not support JXR’s submissions that his diagnosed adjustment disorder was a defence or excuse for his conduct. Again, the reasons for this are later explained).
The purpose of police disciplinary proceedings in Queensland encompasses protection of the public,[20] maintenance of proper standards,[21] and promoting and maintaining public confidence in the police service.[22] Disciplinary action is protective in nature, not punitive.[23]
[20]Crime and Corruption Act 2001 (Qld) s 219A and Police Service (Discipline) Regulations 1990 (Qld), reg 3; see also Aldrich v Ross [2001] 2 Qd R 235, 247.
[21]See also Crime and Corruption Act 2001 (Qld) s 219A and Police Service (Discipline) Regulations 1990 (Qld), reg 3.
[22]Aldrich v Ross [2001] 2 Qd R 235, 247.
[23]Hardcastle v Commissioner of Police (1984) 53 ALR 593 [597].
An officer is liable to disciplinary action under s 7.4 of the Police Service Administration Act 1990 (Qld) (PSA Act) for conduct that is misconduct or breach of discipline on such grounds as prescribed by regulation. The Police Service (Discipline) Regulations 1990 (Qld) (PS Regulations) provide for grounds for disciplinary action as follows:
9 Grounds for disciplinary action
(1) For the purposes of section 7.4 or part 7A of the Act, the following are grounds for disciplinary action—
(a)unfitness, incompetence or inefficiency in the discharge of the duties of an officer’s position;
(b)negligence, carelessness or indolence in the discharge of the duties of an officer’s position;
(c)a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner;
(d)a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned;
(e)absence from duty except—
(i) upon leave duly granted; or
(ii) with reasonable cause;
(f)misconduct;
(g)conviction in Queensland of an indictable offence, or outside Queensland of an offence which, if it had have been committed in Queensland would have been an indictable offence.
(2) Where disciplinary action against an officer is contemplated on a ground referred to in sub-regulation (1)(e) the prescribed officer may appoint any medical practitioner or medical practitioners to examine the officer and to report to the commissioner upon the officer’s mental or physical condition or both, and may direct the officer to submit to such examination.
Misconduct and breach of discipline are defined in s 1.4 of the PSA Act as follows:
breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct.
…
misconduct means conduct that—
(a) is disgraceful, improper or unbecoming an officer; or
(b) shows unfitness to be or continue as an officer; or
(c) does not meet the standard of conduct the community reasonably expects of a police officer.
As a matter of construction, the grounds for disciplinary action in r 9, contemplate conduct that is deliberate, as well as conduct due to unfitness, negligence and carelessness. Specifically, unfitness in the discharge of an officer’s duties is a ground for disciplinary action. A variety of the other grounds concern performance of an officer’s official duties. Misconduct is a specific ground provided for in r 9. Unlike the other grounds, the regulation does not provide for misconduct to relate to the performance of an officer’s duties. Misconduct in r 9, means misconduct as defined in the PSA Act.[24] Consistently, decisions, including Dark,[25] have confirmed that conduct in an officer’s private life can constitute misconduct. The definition of misconduct specifically contains an unfitness limb.
[24]Lee v Crime and Corruption Commission & Anor. [2014] QCATA 326, [73].
[25][2012] QCA 228.
Under s 7.4(2) of the PSA Act, an officer is liable to disciplinary action for such conduct as considered to be misconduct or breach of discipline. For a breach of discipline to be substantiated, a decision-maker must be reasonably satisfied that there has been a breach of the relevant legislation or direction, but the conduct is not misconduct. For misconduct to be substantiated, a decision-maker must be satisfied that the conduct of an officer in committing the acts in the disciplinary charge, falls within limbs (a), (b), or (c) of the definition of misconduct.
The assessment about whether conduct is misconduct or a breach of discipline must be performed having regard to the definitions of misconduct and breach of discipline, as well as, the purposes of police disciplinary proceedings. Limb (a) of the definition of misconduct includes conduct that is disgraceful, improper or unbecoming an officer. The meaning of improper is not constrained. On a plain reading, conduct may be improper, irrespective of background that may provide some explanation as to why it occurred, that is, whether it is a consequence of a defect of character, lack of judgment, or in difficult personal circumstances. As the Court of Appeal said in Dark,[26] most people may act appropriately until tested, at which time a person’s true character may be revealed. Limb (b) refers to ‘unfitness to be or continue to be… an officer’. Again, no constraints are placed on the meaning of unfitness, which according to general usage would include unfitness arising on any basis. Limb (c) is broad, referring to conduct that does not meet the standard the community reasonably expects from an officer.
[26][2012] QCA 228.
Importantly, the purposes of police discipline includes protection of the public and maintenance of public confidence in the police service. The perspective of reasonable members of the public is relevant. Contrary to the submission in Caesar that reasonable members of the public would not consider conduct of an officer to be misconduct unless an officer understood the nature of his or her act and/or its wrongness, the public must have confidence that improper conduct of officers, whatever its underlying cause or circumstances, will not be tolerated.
Broadly speaking, police officers are responsible for maintenance of peace and good order in the community and upholding and enforcing the law, including bringing charges against those who contravene it. Police officers carry potentially life-ending weapons. They have significant coercive powers that may be exercised against members of the public. For the maintenance of public confidence, the conduct of police officers must be beyond reproach, irrespective that an officer may be unwell or going through a difficult personal situation at the time.
Also given the purpose of maintaining public confidence, whether the conduct is misconduct must be determined from the public perspective. An objective assessment is required about whether the conduct of the officer meets the definition.
The Court of Appeal said in Dark,[27] in making the assessment about whether conduct is misconduct, the nature of the conduct and the circumstances in which it took place are relevant.[28] However, it appears to us from the Court’s reasons that the circumstances referred to are those relevant to performing an objective assessment of the conduct as seen from the public perspective. That is, the conduct itself in the immediate circumstances in which it occurred. It is not a reference to the circumstances of an officer’s personal life and history that may have occurred over the weeks, months or years beforehand resulting in the officer being stressed, tempted or unwell at the time of the conduct. In Dark,[29] Muir J said that although conduct (there of dishonesty) of an officer occurred at a time of stress and that might engender sympathy, it ‘does not bear strongly on the conclusions capable of being drawn about his character and integrity, going on to say that it is expected that officers will resist any such temptation and will continue to behave with propriety regardless of stress’.[30] Particular conduct was confirmed in Dark as misconduct because it engendered a lack of trust on the part of other police officers and members of the public.[31]
[27][2012] QCA 228, [35].
[28][2012] QCA 228, [33].
[29][2012] QCA 228.
[30][2012] QCA 228, [35].
[31][2012] QCA 228, [36].
That is not to say that the trust and confidence of other officers and the public will be eroded only by dishonesty. Plainly, any other disgraceful or improper conduct and conduct that is unbecoming an officer, or other conduct meeting the definition, may constitute misconduct.
The former Misconduct Tribunal’s statement in Melling v O’Reilly [32] to the effect that a presumption operates such that misconduct requires a culpable state of mind (that is, it is limited to conduct that is deliberate, careless or reckless conduct), as a matter of construction on a plain reading and having regard to the purposes of discipline, does not appear to us to be correct. Accordingly, insofar as the Tribunal, in Caesar, appears to have accepted that culpability is required and that a defence of insanity may arise in an appropriate case, we would disagree.[33] That said, we do not have to decide the point.
[32]Misconduct Tribunal, Qld, Appeal 6/1991 (Dr Forbes J), p 13.
[33][2017] QCAT 169, [27-51].
That is not to say that disciplinary proceedings should be the preferred manner of dealing with all conduct issues. Employers including the QPS have human resources obligations towards its officers, such that conduct arising may be more appropriately dealt with through other means. In this regard, we observe that s 8.3 of the PSA Act provides for medical assessment of officers whom the commissioner reasonably suspects are unfit for duty by reason of infirmity; and consequences to follow that may end an officer’s employment as an officer. This is not inconsistent with our construction of the disciplinary provisions.
It follows that conduct that falls within the definition of misconduct cannot be mitigated to a breach of conduct on the basis of ‘mitigating factors’. In any event, misconduct and breach of discipline are defined terms. The scope of breach of discipline is considerably constrained to relate to breaches of specified legislation concerning performance of official duties and following official directions. However, it is plain that more serious conduct, despite technically falling within the ambit of the definition of breach of discipline, may be characterised as misconduct.
In relation to sanction: A defence (of insanity or other) cannot logically be available in considering sanction. Even on JXR’s own analogy to criminal proceedings, this would mean a defence was considered after conviction, and in sentencing. This is not so, and is illogical.
That said, mitigating factors are relevant to the exercise of discretion in determining the sanction to be imposed: DA (No 2).[34] It is at this stage, that an officer’s mitigating factors, including diagnosed medical conditions and personal hardships, are to be considered in disciplinary proceedings.
[34][2013] QCATA 162.
Part 1: The appeal on substantiation of aspects of the disciplinary charge
In the sections that follow, we summarise (in brief) the various components comprising each of JXR’s alleged errors of law or grounds of appeal; the submissions made; and then discuss the relevant issues and set out our conclusions. Where it appears the alleged error relates to a particular paragraph or paragraphs of the Tribunal’s reasons for decision, we have also referred to the paragraph/s in our summary of the components.
That said, each ground of appeal is determined in context of the overarching ground of appeal alleging error of law relied upon by JXR.
1.1 The Counselling Incident
Alleged error 1: in finding (in [191]) that JXR’s self-report was an admission that the threat to kill was domestic violence and not a flippant remark; placing weight on Magistrate Smith’s findings to this effect; in failing to explain why Judge Devereaux and Magistrate Batts findings were not taken into account; and in failing to base its decision on logically probative evidence.
To provide context, we observe that the Tribunal recites the evidence before it about the counselling incident at some length.[35] In discussing the evidence, it concludes that JXR’s attendance at the police station immediately after making the verbal threat towards his wife in order to self-report ‘is as much an admission that his conduct constituted domestic violence and that it was not a flippant remark’.[36] JXR submits that in finding that his self-report was an admission of domestic violence (DV) rather than a flippant remark, the Tribunal relied on non-existent facts and failed to take relevant considerations into account.
[35]Reasons for decision, at [154-178].
[36]Reasons for decision, at [191].
JXR makes a variety of seemingly unrelated or tenuously related arguments in support of this ground of appeal. He refers to dictionary meanings of ‘admission’ (to the effect of, acknowledging the truth of a statement) and ‘flippant’ (including not showing careful thought, off-hand and unconsidered, inappropriate). He submits that the Tribunal infers incorrectly that he acknowledged the conduct was DV, when he at no time (said or otherwise) acknowledged that was the case. While he admitted making the comments themselves and that they may fall within the (then) definition of DV, he submits that at no time were his actions an admission that his actions in making the threats amounted to DV, ‘especially one that would result in an application for a Domestic Violence Order (DVO)’.[37]
[37]JXR’s submissions filed 24 October 2016, at [15].
He relies upon S v D[38], where the District Court of Queensland dismissed an appeal from a Magistrate (who, although satisfied of past acts of DV) found that the evidence did not support a finding that future DV was likely, and declined to make a DVO. He also relies upon a decision in MAN v MAM[39] to support his belief that his statements at counselling would not result in the making of a DVO application and certainly not the making of a DVO. He argues that it was the only act of alleged DV during the relationship (it seems, consequent upon the Tribunal’s finding that the pillow incident and the gun incident were not substantiated). Further, he submits that a DVO was, in any event unnecessary, as no further incidents subsequently occurred.
[38][2010] QDC 187.
[39][2003] QDC 398, at [19-20].
In this ground of appeal, JXR also submits that the Tribunal erred in that it gave weight to findings of Magistrate Smith that the words spoken by him (JXR) constituted an act of DV, and were not flippant. He says that it failed to take into account, that (in the appeal against Magistrate Smith’s decision) Judge Devereaux, said it was open to infer that JXR ‘failed to understand that his conduct could amount to domestic violence’.[40] Further, he relies upon what he considers is Judge Devereaux’s acknowledgment that Magistrate Smith had an obvious bias against him.
[40]JXR’s Appeal Book Volume 2, Part D, at 365-366.
He also submits that the Tribunal failed to take into account that Magistrate Batts, (in considering whether to make a temporary DV order prior to the final hearing by Magistrate Smith) expressed some reservations about whether the threat was likely to be carried through[41] and that there was evidence before Magistrate Smith from Senior Constable Bach to the effect that she believed JXR made the threats in ‘the heat of the moment, out of frustration’[42] and that there was no real threat to MR.
[41]JXR’s Appeal Book, Volume 2, Part D, pp 376-377.
[42]JXR’s Appeal Book, Volume 2, Part D, pp380-382.
Finally, JXR submits that the Tribunal failed to base its decision on logically probative evidence in relying on Magistrate Smith’s findings because Magistrate Smith’s opinion is not a fact.
Discussion and our conclusions
In relation to the Tribunal’s finding about whether the counselling incident was substantiated as misconduct, the Tribunal had to make findings about whether JXR said the things alleged; if so, whether they constituted an act/s of DV; and if so, whether they were misconduct.
There was no issue before the Tribunal that JXR said the things alleged: JXR admitted it. The learned Member considered whether his threats amounted to DV, having regard to the definition of domestic violence in the Domestic and Family Violence Protection Act 1989 (Qld) (the DV Act).[43]
[43]Reasons for decision, at [14, 189].
The Tribunal’s finding in [191] that JXR’s self-report at the police station was ‘as much an admission’ is not a finding that JXR directly admitted or intended to acknowledge that his threats were an act of DV. On a fair reading of the reasons for decision, the Tribunal found that his actions, of themselves, in self-reporting the statements/threats he had made, supported a conclusion that the statements made to his wife during the counselling session that he would kill her, were threats rather than flippant comments and were DV.
In reaching this conclusion, it is apparent that the learned Member accepted the evidence of Inspector Bond. In [190], he refers to the Inspector’s evidence that JXR told him when self-reporting that he had crossed a line in making the comments. This evidence, juxtaposed as it is to the finding complained about, on a fair reading, was given weight in reaching the conclusion that the threats were DV. It is in this context that the Tribunal determined that the act of self-reporting and JXR’s statements to Inspector Bond about crossing a line was tantamount to an (indirect) admission. Although the learned Member’s explanation could, perhaps, have been clearer, no error is revealed.
Before discussing the other issues raised in this ground of appeal, it is useful here to detail the learned Member’s consideration of and findings in relation to the counselling incident more generally as they are relevant not only to the further discussion about this ground of appeal, but a number of other grounds to follow.
The learned Member, in discussing the evidence before him, referred to Magistrate Smith’s findings that the words used by JXR constituted DV.[44] He went on to say that the Magistrate had the benefit of hearing oral testimony, while the Tribunal only had a copy of the transcript from the hearing. (We observe that the shortcomings in procedure prescribed for police disciplinary action and reviews has been the subject of sustained comment/concern by previous QCAT Tribunals). Nevertheless, on a fair reading, the learned Member then says that he was reasonably satisfied on the evidence before him that the relevant disciplinary allegation was substantiated.
[44]Reasons for decision, at [188].
He went on to explain why. In doing so, he took into account the evidence about the manner in which the words were delivered,[45] observing JXR’s own evidence that he was angry at the time, even though he had also given evidence that he delivered the words calmly. He also considered the context in which the words were said. In particular, he discussed JXR’s claim that he had made the threats in response to his estranged wife’s ‘threat’ to apply for a DVO, (after he suggested that he would return to their former home).[46] The learned Member acknowledged the issues that the prospect of a DVO would cause for JXR’s employment.[47]
[45]Reasons for decision, at [189-190, 193].
[46]Reasons for decision, at [193].
[47]Reasons for decision, at [194].
The learned Member discussed Magistrate Smith’s finding[48] to the effect that acts of self-reporting did not extinguish the acts of DV, although may be relevant to whether a DVO was required. The Tribunal then went on to observe that the issues for the Tribunal were different from those that had to be decided by Magistrate Smith.[49] The learned Member found that the question for the Tribunal was whether the threats were an act of DV. He stated that JXR’s self-reporting went to whether it was misconduct (and if so, sanction to be imposed). He acknowledged that while JXR’s mental health condition may have disposed him to outburst behaviour, he was taking medication and that the medical evidence did not suggest the condition excused his behaviour.[50] He then found, having regard to the matters discussed, that the words said were an act of domestic violence.[51]
[48]Reasons for decision, at [192].
[49]Ibid.
[50]Reasons for decision, at [195].
[51]Reasons for decision, at [196].
In paragraphs [197-198], the Tribunal considered whether the conduct was misconduct. It accepted that the conduct was misconduct, rather than (as contended by JXR) a breach of discipline. It appears to have accepted that misconduct is conduct that reveals a lack of integrity or want of character such as to substantially erode the trust and confidence of other members of the police service and the public.[52] The Tribunal said that, ‘He has threatened to commit violence against his wife. While the threat was made in the heat of a marital dispute, he could have defused it then and there. He chose not to and repeated the threat. He self-reported and acknowledged he had stepped over the line’.[53] The learned Member went on to say, ‘As a police officer, there is an expectation that [JXR] will uphold the law and clearly in making the threat to [MR], he was not upholding the law and that constitutes misconduct’.[54] That is, ultimately, his finding that the conduct was misconduct was based on the finding that police officers are expected to uphold the law, and in committing an act of domestic violence in making the threat to kill MR (and repeating it), JXR did not do so.
[52]Reasons for decision, [197].
[53]Reasons for decision, [198].
[54]Ibid.
Although the learned Member could, perhaps, have more clearly expressed his reasons, on a fair reading of the reasons for decision, he formed his own conclusion that the threats were DV, rather than a flippant comment, based on the evidence before him, including the evidence given in the domestic violence proceedings. The learned Member set out the evidence before him at some length.[55] It is further apparent that, to the extent the evidence before him included the transcript from the DV proceedings, he formed his own conclusions based on the evidence in the transcript, rather than relying upon findings made by Magistrate Smith. Although Deputy Commissioner Gollschewski appeared to concede on appeal that the learned Member relied on Magistrate Smith’s findings in finding that the threats amounted to DV, we do not agree. The learned Member treated Magistrate Smith’s decision was only one piece of evidence before him for consideration.[56]
[55]Reasons for decision, [155-178].
[56]Reasons for decision, [174-188].
Therefore, although the findings made by Magistrate Smith after the contested oral hearing were discussed, they were not relied upon or adopted by the learned Member. This was proper. The Tribunal’s role is to make its own decision in the proceeding in relation to the issues raised.
The comments by Judge Devereaux and Magistrate Batts relied upon by JXR were not specifically discussed by the Tribunal in considering the issue. A search of the documents filed by the Deputy Commissioner in compliance with s 21(2) of the QCAT Act in the file relating to the review proceedings reveals that the order made by Judge Devereaux was before the Tribunal.[57] However, it appears the associated extract from the transcript of the hearing[58] and reasons for his decision[59] relied upon now by JXR were not. Brief extracts from those documents are provided in JXR’s Appeal Book. The Tribunal’s approach to evidence not before it cannot be criticised. In any event, even if it was before him the comments are irrelevant because the learned Member reached his own conclusions about whether the threats were act/s of DV.
[57]Section 21(2) documents in OCR067-15, Volume 3, p 907: Judge Devereaux varied the DVO by reducing the term on the DVO to 15 months (from 2 years).
[58]Appeal Book, Volume 2, pp 383-384.
[59]Appeal Book, Volume 2, pp 365-366.
In case we are wrong, we observe that on appeal, the orders made by Judge Devereaux did not upset Magistrate Smith’s orders, except to reduce the term of the DVO to 15 months. In the one brief paragraph extracted from his reasons for decision and provided in JXR’s Appeal Book, Judge Devereaux said that Magistrates Smith’s finding that JXR did not genuinely accept that his conduct was domestic violence was ‘well and truly’ open to him, and that it was also open to infer that JXR appeared not to understand that his actions could constitute domestic violence.[60] This would not assist JXR’s argument on appeal. Further, in acknowledging that Magistrate Smith did not like or think much of JXR very much by the end of the DV hearing, Judge Devereaux does not indicate what JXR refers to as the ‘obvious bias’ of Magistrate Smith towards him. In essence, the requirements of observing procedural fairness include giving parties a fair hearing absent pre-judgement or bias (actual or reasonably apprehended), and in which the adjudicator has no personal interest. There is no bias or reasonable apprehension of bias arising from JXR’s ground of appeal as expressed or the argument made in respect of it. Whether a judicial officer ‘liked’ a person by the end of the hearing does not of itself reflect on whether he or she provided a fair hearing to the party, nor indicate actual bias or a reasonable apprehension of bias.
[60]JXR’s appeal submissions filed 24 October 2016, [68], referring to Appeal Book, Volume 2, Part D, p 366.
Magistrate Batts’ brief observations relied upon by JXR were made at a preliminary stage of the proceedings in the limited context of considering whether a temporary order should be made pending a final hearing. JXR also relies upon evidence of Senior Constable Bach in the DV hearing before Magistrate Smith. However, that evidence consists of the officer’s personal opinion/s about whether the threats made were serious threats. The evidence from these sources could be of little assistance to the Tribunal in forming its own conclusions. It is unsurprising that the they were not discussed.
Discussing the findings and observations of Judge Devereaux (even if they were before the Tribunal) and Magistrate Batts, and the opinion evidence of Senior Constable Bach could not have assisted the Tribunal to form its own conclusion about whether the making of the threats was an act/s of DV. No significant weight could be given to them by the Tribunal in forming its own conclusions. No Tribunal error is identified.
Finally, an argument is made that the Tribunal failed to rely on logically probative evidence in reaching its conclusions because Magistrate Smith’s opinion (or findings) are only his opinion, not facts. As discussed, Magistrate Smith’s findings were not relied upon by the learned Member. He formed his own conclusions that the actions of JXR constituted DV.
No error is revealed.
Alleged error 2: (in [191]), JXR made no attempt to reassure that the threat was only said in the heat of the moment.
In paragraph [191] of its reasons for decision, the Tribunal said, ‘He did not though immediately after the first threat was made make any attempt to try to calm down and reassure his wife that it was only said in the heat of the moment. He instead repeated it and left when asked’. JXR submits that the Tribunal erred in law in making the finding, because the comments were made, and repeated within seconds, in the heat of the moment. As a consequence, he was asked by the counsellor to leave. He did so immediately as requested.
He submits therefore, that the finding of the Tribunal that he did not attempt to calm down and reassure his former wife cannot reasonably be made: there was no interval within which his passion could have cooled. Accordingly, he says that in making the finding, the Tribunal failed to take relevant considerations into account, namely that he had no reasonable opportunity to calm down.
Discussion and our conclusions
The Tribunal does not discuss in [191], opportunities for JXR to calm down and apologise. Instead the learned Member goes on to state the undisputed fact that JXR repeated the threat during the counselling session. In context, the issue the Tribunal considered relevant, in determining whether the threat was an act of domestic violence (or a flippant remark/s as JXR contended), was JXR’s actions in repeating the threat and shortly afterwards, self-reporting it to Superintendent Bond, who described him at the time as upset and distraught, and describing himself as having crossed a line.[61]
[61]Reasons for decision, at [189-191] and Affidavit of Superintendent Bond, s 21(2) Documents, pp 748-749 in OCR067-16.
The discussion in [191] indicates that the learned Member considered that if JXR’s contention was to be accepted, the threats would have been delivered in a manner that was consistent with the description of flippant, and that if it appeared they were taken seriously, steps would have been taken immediately by JXR to address the misconception. Instead, JXR said the words in an angry manner. Then he repeated them. In assessing the inherent probability that JXR said the words flippantly, the learned Member considered whether the surrounding circumstances supported such a finding, concluding that they did not.
As discussed earlier, the Tribunal went on to discuss a variety of other matters in reaching his conclusion that the threat/s were an act of domestic violence.
No error is revealed.
Alleged error 3: in finding that the conduct was misconduct, rather than a breach of discipline, despite acknowledging mitigating circumstances (having been told there is no prospect of reconciliation (in [193])) for his upset at the time of the threat (inconsistently with DA (No 2)); and failing to take into account his continued good service for ten months after the conduct.
JXR alleges that the Tribunal erred in law in finding his conduct in the counselling incident to be misconduct, despite the mitigating circumstance (in that his wife had just told him that there would be no reconciliation), thereby failing to base its decision on logically probative evidence and failing to take relevant considerations into account.[62] In particular, JXR refers to the Tribunal’s statement that: [63]
I have some sympathy with his circumstances in being told that there was to be no reconciliation when he thought it would be possible and understand that would cause him upset.
[62]JXR’s submissions filed 24 October 2016, paras 38-47.
[63]Reasons for decision at [193].
JXR submits that in making these observations, the learned Tribunal member concedes that his threats were not misconduct, by demonstrating that a reasonable person would not find the conduct met the definition of misconduct. In particular, he submits that the conduct is not disgraceful or show unfitness to be… an officer.[64] He seems to argue that while the conduct may have been a breach of discipline, it was not misconduct, referring to a Misconduct Tribunal decision in which it was held that an officer is not regarded as professionally unfit for failing to perfectly meet departmental requirements.[65] In particular, JXR submits that his circumstances are not dissimilar to DA (No 2)[66] in that the incident occurred in his private life, at a time when he was under enormous stress from a bitter and protracted matrimonial dispute.
[64]PSA Act, s 1.4, ‘misconduct’.
[65]JXR relies upon decision of Schauer v Banham (Misconduct Tribunal) Appeal No 11/1996 (Member Dr J Forbes).
[66][2013] QCATA 162.
He also argues it is relevant that he continued to perform the role of police officer and to relieve in higher duties after the incident.
JXR also alleges here that the Tribunal failed to take into account a relevant consideration and failed to base its decision on logically probative evidence, namely his continued service as a valuable member of the police service for 10 months after the counselling incident.
The Deputy Commissioner submits that the Tribunal referred to Ziems v Prothonotary of Supreme Court (NSW) (Ziems)[67] as to the nature of misconduct,[68] wherein the Court described misconduct as conduct revealing such a lack of integrity or want of character as to significantly erode trust and confidence that colleagues and members of the public are entitled to repose in him.
[67](1957) 97 CLR 279, as referred to by the learned Member in Reasons for decision, at [197].
[68]Transcript 31 March 2017, I-38.
In response to JXR’s arguments, the Deputy Commissioner’s representative argued that mitigating circumstances have been raised and considered relevant in Tribunal proceedings in relation to the issue of sanction.[69] He says that, consistent with this, the learned Member indicated that mitigating factors would be dealt with in considering sanction.[70] He says that statement should be interpreted as a finding by the learned Member that mitigating factors are relevant only to sanction. He submits that the Tribunal was cognisant of all of those factors raised by JXR, it simply did not discuss the factors in considering whether the conduct was misconduct.
[69]Transcript of 31 March 2017, I-39 to I-42.
[70]Reasons for decision, at [273]. See also [198].
Discussion and our conclusions
In acknowledging that JXR’s circumstances evoked some sympathy, JXR argues that the learned Member acknowledged his threats were not misconduct. This is not so. The Member did no more than acknowledge that it was upsetting for JXR to learn that his estranged wife was not prepared to reconcile with him, when JXR had thought it was possible. The Tribunal’s expression of sympathy was not acknowledgment that the conduct was not misconduct.
For the reasons explained earlier, JXR’s circumstances raised in mitigation are not relevant to whether his conduct constituted misconduct.
That said, the learned Member appears to have accepted the proposition for which JXR contends. In [192], in saying that ‘The self-reporting will go to whether his conduct constituted misconduct[71] and any sanction if that misconduct is found’. This appears to be a finding that a subsequent act of self-reporting may be relevant to the classification of the conduct as either misconduct (or a breach of discipline). Despite this, the Tribunal did not then find that the self-reporting was relevant to the determination of whether the conduct was misconduct. Also, in [195], the learned Member considered whether there was any evidence that JXR’s diagnosed psychiatric condition was an ‘excuse’ for the behaviour, concluding that the evidence did not support such a finding.
[71]Our emphasis.
For reasons already explained, to the extent that the learned Member accepted the proposition that mitigating factors are relevant to the determination of whether conduct is substantiated, at all, or, as misconduct (or breach of discipline), he erred in law. However, as he ultimately did not consider those factors as mitigating in JXR’s case, the error does not affect and is not material to the decision.
In deciding that the conduct was misconduct, the learned Member considered established case law about the meaning of misconduct to which the Deputy Commissioner had referred him (and appears to adopt it, while not specifically saying that he did so).[72] He had also earlier set out the definition of misconduct,[73] although he did not here specifically refer back to it. The learned Member referred to JXR’s actions in making the threats as ‘not some mere failure to meet the requirements of police discipline,’[74] observing that in making the threat he did not uphold the law, namely the DV Act. That is, he was satisfied that the conduct was not a breach of discipline. The learned Member considered the conduct was misconduct not a breach of discipline.[75] There is no error revealed: making of the threats in the counselling session cannot be likened to a failure to perfectly meet departmental instructions/requirements. It was a contravention of a law that police officers have a significant role in administering and enforcing, that is, the DV Act. The learned Member went on to say, correctly that any mitigating factors will be discussed in regard to sanction.[76] It was appropriate for the Tribunal to consider, as it did, whether the conduct revealed such a lack of integrity or want of character as to be classified as misconduct. In drawing this conclusion, we observe for completeness that it is permissible for the Tribunal to make findings about contextual facts, provided that it does not result in a reformulation of the disciplinary charge (such that the officer is as a consequence later sanctioned for more serious conduct than the conduct for which he or she faces the disciplinary charge).[77]
[72]Reasons for decision, at [197].
[73]Reasons for decision, at [6].
[74]Reasons for decision, at [198].
[75]Reasons for decision, at [198].
[76]Reasons for decision, at [198].
[77]Lee v Crime and Corruption Commission [2016] QCA 145.
The Tribunal erred in law to the extent that it found mitigating circumstances were relevant in determining whether the conduct was misconduct. That aside, in finding the JXR’s conduct was misconduct, it did not consider, or at the very least did not give weight to, alleged mitigating circumstances (such as JXR’s upset or self-reporting of the incident). Therefore, although the appeal is allowed in respect of the error of law, it did not infect the learned Member’s finding that the conduct was misconduct and is therefore not material to the decision made.
[100]Alleged error 4: while conceding mitigating circumstances in that he could have been more upset by the prospect of a DVO because it would make him non-operational and explained the alleged conduct (in [194]), the Tribunal found his behaviour was misconduct.
[101]JXR relies upon his arguments that mitigating factors are relevant to whether conduct is misconduct, except that he relates them here to the Tribunal’s findings in paragraph [194] of its reasons for decision, that:
Clearly, for someone in [JXR]’s position the prospect of a domestic violence order was a problem as it would make him non-operational and could have disciplinary repercussions so he was sensitive to it. This could have caused him more distress.
[102]For the reasons discussed earlier, this argument must fail. As the Court of Appeal said in Dark,[78] distress or upset of an officer at the time of the alleged disciplinary transgression does not bear significantly upon the conclusions that may be drawn about an officer’s integrity. As an officer with a responsibility to uphold the law generally, and administer the DV legislation, JXR’s upset did not bear strongly on the conclusions to be drawn about his integrity and whether the conduct was misconduct.
[78][2012] QCA 228, [35-36].
[103]No error of law is revealed by the learned Member’s acknowledgment of his likely distress because of his estranged wife’s assertion that she would apply for a DVO.
[104]Alleged error 5: (in [195]), the Tribunal acknowledged JXR’s medical condition (adjustment disorder) as predisposing him to outburst behaviour, and noted that he was taking prescribed medication, Cymbalta, to assist with it. However, in finding that ‘Dr Jenkins gave no indication that the disorder could be any excuse for his behaviour,’ [79] the Tribunal implied the medication negated the symptoms, when the evidence suggests otherwise, and it failed to take into account his medical condition.
[79]Reasons for decision, at [195].
[105]The submissions made by JXR are to the effect that having accepted that he had an adjustment disorder, the learned Tribunal erred in finding that it did not account for JXR’s behaviour in making the threats against his estranged wife. The submissions are to the effect that the fact of his diagnosis meant his conduct was excused by the condition and that the medication does not cure the symptoms. Accordingly, he says the Member relied upon ‘non-existent facts’, and ‘failed to take into account relevant considerations, as well as failing to base his decision on logically probative evidence.
[106]For the reasons already explained, mitigating circumstances such as JXR’s adjustment disorder are not relevant to the issue of substantiation of the misconduct.
Observations about JXR’s medical evidence
[107]In any event, it is useful to observe here, (because it is a recurring issue in JXR’s alleged errors of law and submissions), that even if mitigating circumstances such as an adjustment disorder, were relevant to substantiation of the charge it would not assist JXR. The mere finding that JXR had an adjustment disorder would not lead to the inevitable conclusion that JXR was not responsible for his own actions. The fact that outburst or defiant behaviour may possibly be a symptom of the condition would be irrelevant unless JXR had the symptom. The evidence here does not suggest he did. Therefore, even if it was relevant, as the Tribunal found, the medical evidence would not support a finding that JXR’s adjustment disorder was the cause of or excused or diminished his behaviour.
[108]Dr Jenkins evidence, including his report of 29 July 2013,[80] and his oral evidence given in the domestic violence hearing,[81] suggests that JXR was medicated with Cymbalta from 2011 until at least 2013. It was used to manage his symptoms.[82] Although Dr Jenkins includes some general information about adjustment disorders at the conclusion of his report,[83] his report pertaining specifically to JXR does not suggest that JXR has the possible symptoms of defiant or impulsive behaviour that may accompany an adjustment disorder. Nor does it suggest that if they were his symptoms, that in Dr Jenkins’ opinion JXR’s behaviour, in making the threats, was a consequence of the condition or that JXR was not otherwise responsible for his actions. Similarly, the other medical evidence before the Tribunal does not suggest support JXR’s argument.[84] Therefore, even if the diagnosed condition was relevant to substantiation, no error would be revealed.
[80]Section 21(2) documents, Volume 1, page 162-164.
[81]Section 21(2) documents, Volume 2, pages 350-357.
[82]Ibid.
[83]Section 21(2) documents, Volume 1, pages 163-164.
[84]Section 21(2) documents, Volume 1, see between pp 162-190 (although not all of those pages are relevant) and pp 217-222.
[109]A further submission is made by JXR to the effect that the learned Member could not make a finding that there was no indication that his condition excused his behaviour because he is not a medical expert. The learned Member made no finding/s purportedly based on his own expertise in relation to medical matters. The Member’s task was to make findings of fact based on the evidence before him. The Tribunal’s findings complained about were open on the evidence, albeit that they were not relevant to whether the conduct was misconduct.
[110]For the reasons set out earlier, the alleged mitigating circumstance of JXR’s diagnosed adjustment disorder was not relevant to assessing whether the conduct was misconduct. To the extent the learned Member found otherwise, he erred in law. Once again, as he did not then find that it excused the conduct, the learned Member’s decision that the conduct was misconduct was not infected by the error. Accordingly, the error was not material to the decision.
[111]Alleged error 6: (in [198],) the Tribunal erred in finding that JXR’s failure to cooperate with Sergeant Hendrie was part of the reason the DV application proceeded, in circumstances when there was no requirement for him to cooperate, and when he did cooperate until Sergeant Hendrie attempted to take his service weapon and serve him with DV application in front of his peers.
[112]In paragraph [198] of his reasons for decision, the learned Member concluded that JXR’s ‘lack of cooperation with the investigating officer was part of the reason that the application proceeded’. JXR submits that this would have been an improper basis for the application because it demonstrates bias, presumably of Sergeant Hendrie, although he does not specify.
[113]Also, JXR submits that there is no requirement for cooperation with an investigating officer. That said, he asserts that he was co-operative, relying upon a copy of an email he sent to Sergeant Hendrie,[85] other than when Sergeant Hendrie attempted to remove his weapons and serve him with the DVO application at work, while many of his peers were present.
[85]JXR’s appeal submissions filed 24 October 2016, [68], referring to Appeal Book, Volume 2, Part D, pp 411-412.
[114]He submits that the error of law was a reliance on non-existent facts (the lack of co-operation); failing to take account of relevant facts (his cooperation as per the email communication); and failing to base the decision on logically probative evidence (that is, an attempt to cooperate).
Discussion and conclusions – alleged reformulation of the disciplinary charges
[115]In discussing the evidence before him about allegations of domestic violence in Matter 1a), including the counselling incident, the learned Member discussed Sergeant Hendrie’s evidence in the domestic violence proceedings.[86] In addition to detailing the events as he understood them, the report from Relationships Australia, and the history given by JXR’s estranged wife, Sergeant Hendrie also deposed to steps he took and interactions with JXR. It appears from his affidavit, that it was only after he had spoken to JXR that he concluded that a domestic violence application should be made, because he believed JXR’s behaviour was likely to continue.[87] Although it is not entirely clear from the reasons for decision, it appears that this is the basis for the Tribunal’s finding that JXR seeks here to impugn.
[86]Reasons for decision, at [27-28, 42, 122, 174-176].
[87]Section 21(2) documents, Volume 3, Affidavit of L. K. Hendrie, especially at p 761.
[116]The disciplinary charge about the counselling incident does not raise an issue about JXR’s cooperation or otherwise with Sergeant Hendrie. In [198], it appears that the learned Member concluded from Sergeant Hendrie’s evidence that, at least in part, JXR’s behaviour towards Sergeant Hendrie led to the DV application being made.
[117]It was not essential for the finding to have been made for the Member to conclude that the threats made at counselling were made, were domestic violence and were misconduct. Contextual findings are permissible, although the disciplinary charge brought against an officer cannot be thereby reformulated by the Tribunal so as to make the conduct more serious than the charge. [88] Here, although the finding about JXR’s level of cooperation was not essential, it is contextual and of itself does not reveal an error.
[88]Lee v CCC & Anor [2014] QCATA 326, especially at [63, 110-113], and CCC v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510, especially at [35-45].
[118]Does the evidence support the findings made? The email relied upon by JXR as demonstrating cooperation is not, or at least we cannot locate it despite a search, contained in the s 21(2) documents consisting in all of over some 2000 pages, or the other evidence before the Tribunal,[89] although it is included in JXR’s Appeal Book which should only include documents that were before the Tribunal.
[89]As to fresh evidence allowed by the Tribunal: see reasons for decision, at [15-18].
[119]As we said before, the Tribunal did not err by not considering evidence that was not before it.
[120]Assuming that the email relied upon by JXR was before the Tribunal although we cannot locate it, the Tribunal also had before it the evidence of Sergeant Hendrie about his interactions with JXR. It was open to the learned Member to prefer Sergeant Hendrie’s evidence on this point. If he did so, he was obliged to explain his reasons for doing so, but he did not. Failure to give adequate reasons for decision is an error of law. However, for the reasons explained in the following paragraphs, we have concluded that even if there was an error, the error was not material to the decision because the finding was not critical to substantiation of this aspect of the disciplinary charge.
[121]The learned Member’s reasons for decision explain that he did not accept JXR’s evidence about his demeanour at the time of making the threats. He may have also concluded, although he does not say so, that JXR was unreliable in reporting his own demeanour and attitude in dealing with Sergeant Hendrie. If so, the particular evidence relied upon to support that finding and the reasons for it are not apparent. That said, Sergeant Hendrie’s affidavit confirms that he did not decide the make the application until after he spoke with JXR, even though he says he had earlier concluded that the acts constituted domestic violence and that further violence was likely to occur.[90] There is, however, no evidence to support the submission that Sergeant Hendrie proceeded because of bias. Even if he did, that would not be relevant to substantiation of the counselling incident.
[90]Section 21(2) documents, Volume 3, Affidavit of LK Hendrie, at p762, paragraph [33].
[122]Finally, we consider later, in dealing with appeal about sanction, whether the disciplinary charge was impermissibly reframed by the learned Member resulting in JXR being sanctioned for misconduct more serious than that with which he was charged, as a result of the contextual findings about JXR’s lack of co-operation. (Although we conclude it was not).
[123]In summary, if an error of law was made by the learned Member in failing to provide reasons for giving greater weight to Sergeant Hendrie’s evidence as identified in respect of which the appeal should be allowed, it is not material to the decision made by the Tribunal about substantiation of this aspect of the disciplinary charge.
[124]Alleged error 7: the Tribunal erred in failing to take into account the mitigating factor of JXR’s former wife’s emotional, psychological and economic domestic violence towards him in preventing him from maintaining his connection to his children and refusing him access to property, while continuing an intimate relationship with JXR leading him to believe that reconciliation was possible, then telling him at the counselling session that there would be no reconciliation and threatening to obtain a DVO.
[125]JXR again submits that the Tribunal failed to take into account relevant considerations. Here, he refers to paragraph [193] of the reasons for decision as follows:
[193] [JXR] claims that the threat was made as a result of a threat made to make application for a domestic violence order. His wife in fact said that she (sic) make an application for a domestic violence order as he had threatened to return to the marital home. This was the true threat ([JXR]’s emphasis)….Him saying though that he was going to return home in circumstances where he had been separated from his wife since August….
[126]It appears that JXR contends that the Tribunal erred in not recognising that his estranged wife had committed acts of domestic violence against him. This is said to have occurred by way of emotional, psychological and financial abuse from the time of separation until the time of the counselling session, by letting him believe there was still some prospect of reconciliation, by controlling his access to his own property, finances (he had to pay most of their joint expenses) and the children. In particular, he refers to her threat to apply for a domestic violence order.
[127]The connection between the submission and the Tribunal’s statement that ‘This was the real threat’, is not entirely clear. It appears JXR argues that the Tribunal thereby acknowledged that the real threat was his wife’s statement that she would apply for a DV order, and in doing so, it should have taken into account her alleged domestic violence against him.
[128]At first glance, the learned Tribunal’s statement about the real threat is confounding, following as it does, reference to MR’s statement that she would make a domestic violence application. It does appear to be a finding that her statement was the real threat.
[129]On a fair reading of paragraph [193], and surrounding paragraphs under the heading of ‘Discussion’ at [187-198], it is sufficiently clear that the learned Member did not accept that MR’s statement was the real threat. Indeed, it appears that the Member may have been discussing JXR’s submissions (in this regard, we refer back to [181]) in the sentences leading up to the apparent finding about the ‘true threat’. The Tribunal was cognisant of the matters raised about MR’s conduct but did not consider them relevant to determination of this aspect of the disciplinary charge.
[130]The learned Member should perhaps have taken greater care in referring to submissions made by JXR. However, the ground of appeal and submissions do not disclose an error in the decision.
[131]Alleged error 8: the Tribunal had no jurisdiction to make a determination that the conduct was domestic violence (in [187]) and its finding is ultra vires. It was entitled to do no more than find, on the Briginshaw standard,[91] whether misconduct occurred.
[91]Briginshaw v Briginshaw (1938) 50 CLR 336.
[132]JXR contends that the Tribunal erred in finding that it must decide whether JXR committed an act of domestic violence at the counselling session, and whether it was an act of misconduct. He says the Tribunal had no jurisdiction to determine whether the conduct was domestic violence and that a decision about this is ultra vires. He argues all the Tribunal could do was consider whether the conduct was misconduct. He argues again that in view of the mitigating circumstances, it cannot be misconduct.
[133]In order to determine whether this aspect of the charge was made out, the Tribunal was obliged to determine whether the threats were made, whether they were an act/s of domestic violence, and then whether they were misconduct. JXR admitted having made the threat/s alleged in the charge.[92] The two questions identified by the Member in [187] remained for determination.
[92]Reasons for decision, at [155].
[134]The argument that making a finding about domestic violence was ultra vires the Tribunal’s jurisdiction is apparently made by JXR on the basis that the Tribunal has no role in determining DV applications. That is irrelevant. It did not do so. It determined this aspect of the disciplinary charge. JXR appeared to concede this at the appeal hearing.[93]
[93]Transcript 31 March 2017, 1-30 to 1-31, esp at lines 28-29.
[135]To the extent that JXR again raises mitigating circumstances in his arguments, we have already considered whether the Tribunal erred in its treatment of mitigating factors when determining whether the conduct was misconduct. We refer to those earlier reasons for decision.
[136]No error is revealed.
[137]Alleged error 9: the Tribunal erred in finding the threat was misconduct (in [198]) in light of the mitigating circumstances and erred in finding JXR did not uphold the law because he did uphold it in self-reporting the incident to police (in [198]).
[138]JXR contends that the Tribunal erred in finding that in making the threat/s, JXR did not uphold the law when as a police officer there was an expectation that he would do so, and that this was misconduct.[94]
[94]Reasons for decision, at [198].
[139]JXR submits that he did all that he was morally, ethically and legally required to do, upholding the law in self-reporting the incident.[95] He says the Tribunal erred in failing to take this relevant consideration into account.
[95]JXR’s appeal submissions filed on 24 October 2016, [86].
[140]The difficulty with JXR’s argument is that the failure to uphold the law referred to by the learned Member, occurred when he threatened his estranged wife. The obligations of an officer to report his own conduct are not what the Tribunal referred to.
[141]He further submits that the threats were not misconduct because of the mitigating circumstances. Again, to the extent that JXR raises the argument about the relevance of mitigating factors in determining whether conduct is substantiated as misconduct, we refer our earlier reasons for decision about this issue.
[142]No error is revealed.
[143]Alleged error 10: (in [372],) in deciding sanction, the Tribunal erred, amongst other things, in finding JXR did nothing to ameliorate/mitigate his threat, in circumstances that he was required to immediately leave but did then self-report resulting in loss of his weapon/s; and the Tribunal erred in finding that his former wife had not threatened him (when she threatened him with a DVO); and in contrast to [373] in finding, with respect to the threats against judicial and police officers, ‘and this time he did not even self-report’.
[264]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[360]Despite making voluminous submissions, JXR does not identify clearly the manner in which he contends the learned Member erred in the exercise of his discretion, except in that he says the Tribunal ought to have considered his medical condition was a mitigating factor generally and in finding that he was not a fit and proper person. That said, having regard to the nature of submissions made by JXR, it appears that he contends error in either the way factors were or were not given weight by the Tribunal, resulting in the imposition of a sanction of dismissal which he says is manifestly excessive in the circumstances.
[361]Having regard to the onus he bears, JXR should have specified which of those many factors he makes submissions about are said not to have been considered, or not considered appropriately, or not given adequate weight. That said, as he represents himself, we have taken the view that we should consider each of them.
[362]An argument relating to the mitigating effect of his medical condition relies upon the lack of medical expertise held by the learned Member. There is no merit in the contention that the Tribunal was not entitled to make a finding to the effect that JXR’s medical condition did not serve to mitigate his misconduct because the learned Member is not himself medically qualified. As explained in earlier paragraphs of these reasons for decision, the Member’s task was to make his findings based on evidence before him. He did so.
[363]In relation to JXR’s arguments about the findings relating to the mitigating factor of his medical condition more broadly made, as discussed earlier, the medical evidence would not support a conclusion that JXR’s conduct was caused by his adjustment disorder for the reasons explained earlier, (nor, even if it was relevant, to the extent that JXR’s submissions again raise in relation to sanction the ‘insanity defence,’ that he was incapable of understanding what he was doing, controlling his actions or knowing that he ought not do the acts). There is no error on this basis.
[364]Did the learned Member properly consider and weigh the factors relevant to the determination of sanction? He identified the areas he was required to consider, ‘where relevant’.[265] JXR does not suggest that those were not relevant considerations: indeed, he makes submissions against each of those specified factors as outlined earlier.
[265]Reasons for decision, [368].
2.3.1 Seriousness of the conduct
[365]The learned Member considered the seriousness of the substantiated misconduct. Seriousness was considered and discussed by the learned Member throughout the section devoted to sanction [366-396], but especially at [369, 371, 372, 374, 376, 385, 386, 390, 393, and 394]. It is apparent that he considered the misconduct of a very serious nature. He considered that JXR had damaged his standing as an officer ‘beyond repair’.[266]
[266]Reasons for decision, [394].
[366]In support of that conclusion, he made a number of findings. In relation to the counselling incident, he considered JXR’s failure ‘to ameliorate the situation with his wife’ was relevant.[267] He found that JXR, in giving false testimony, demonstrated ‘a disregard for the legal process which someone who would be called upon regularly to give evidence casts his integrity in alight(sic) light’.[268] Repeated instances of misconduct including involving ‘conduct over such a long period’ informed the Member’s conclusion, as well as that the misconduct included ‘adverse interactions with members of the force who he served with (sic) and would be expected to continue to serve with’. The Tribunal found that ‘when he was tested by the strain of his marriage breakup his character was fully revealed he threatened his wife and then gave false testimony about it and became an angry abusive person who had no respect for other members of the police service and the public.’..[269]
[267]Reasons for decision, [372].
[268]Ibid.
[269]Reasons for decision, [393].
[367]It is clear that the Tribunal considered JXR’s misconduct considerably more serious than JXR contends it was. These findings were open to him.
2.3.2 Mitigating circumstances: adjustment disorder
[368]JXR argues that his diagnosed adjustment disorder was a mitigating factor, and that the condition was exacerbated by factors associated with his marriage breakdown including the DVO, the complaints made by his former wife and mother-in-law, huge legal bills, being denied contact with his children.[270]
[270]JXR’s appeal submissions filed 24 October 2016, [221] at pp 67 and 68.
[369]In discussing circumstances of mitigation in relation to the issue of sanction, the learned Member specifically acknowledged JXR’s diagnosed adjustment disorder (as he had throughout his reasons for decision), as well as JXR’s submission that the condition ‘resulted in him displaying behaviour which included acting defiant or showing impulsive behaviour’.[271] The Tribunal found that JXR was receiving treatment including a medication, Cymbalta, that JXR knew ‘increased the effects of alcohol’.[272] Although the Tribunal appears to have accepted at [372] that the condition may have been a contributing factor in the counselling incident, it discounts its weight in mitigation because JXR did not later seek to overcome the threat made with his wife.[273] The learned Member did not give weight to JXR’s self-reporting and alleged remorse shown in doing so, rather he considered it was an attempt to minimise any impact on his career. This finding was open because JXR’s evidence did not suggest remorse.
[271]Reasons for decision, [371].
[272]Ibid.
[273]Reasons for decision, [372].
[370]Then in paragraph [389], the learned Member states that JXR’s marital issues and resulting adjustment disorder ‘need to be considered in mitigation…’. He observes that none of the medical evidence supports the contention that the adjustment disorder excuses his misconduct and that JXR was being treated for it from September 2011. He concludes that ‘It was the overlay of alcohol consumption with this medical condition and the treatment he was receiving which resulted in these incidents occurring. He had the choice not to consume alcohol…’. The learned Member found that even after the incident in December 2012, JXR continued to do so and the incidents in February and September 2013 resulted. He concludes ‘Therefore I do not consider that his medical condition provides any mitigation to [JXR]’s conduct’.[274] He acknowledges JXR’s hospitalisation in February 2013, following the incident involving his disorderly conduct involving Senior Constable OL.[275]
[274]Reasons for decision, [389].
[275]Reasons for decision, [392].
[371]The Tribunal considered JXR’s adjustment disorder in determining sanction. Ultimately, the Tribunal did not consider it should be given significant weight when considered against other factors, at least in part because it was treated, and because the medical evidence did not suggest it explained or caused his misconduct. Although the Tribunal could more clearly have expressed itself, it is sufficiently clear that the condition was weighed as a factor in the exercise of the Tribunal’s discretion. The findings made by the Tribunal were open on the evidence.
[372]As discussed, JXR again raises the defence of insanity, submitting that is open to him in relation to sanction on the basis of his diagnosed adjustment disorder. In his submissions in reply on his appeal, he also suggests that his diagnosed PTSD in remission, is relevant.
[373]For the reasons explained, defences are not available in police disciplinary action. That said, mitigating factors, including any relevant medical condition, are relevant considerations in determining the sanction to be imposed. If the medical evidence supported a finding that JXR’s mental state was such that his actions were not his own, or he could not at the time understand that they were wrong, that would be relevant a as mitigating factor in determining sanction. In JXR’s case, the medical evidence did not support a finding to that effect in respect of either his adjustment disorder or his PTSD. No error of the Tribunal is revealed.
2.3.3 Mitigating circumstances: the marriage breakdown
[374]In relation to JXR’s marriage breakdown and various associated stressors and stresses, again, the learned Member discusses them throughout the reasons. In making his findings about the issue of sanction, he did not refer again individually or specifically to some of the matters relied upon by JXR, including, the stress associated with legal bills, and withholding of contact to the children for a period (which had been summarised earlier at [309]). However, these are common incidents of a marriage breakdown. The Tribunal references marital issues and ‘the strain of his marriage breakup’,[276] indicating that regard was had to them in determining sanction. However, the Tribunal’s conclusion was that JXR’s character was fully revealed when tested by the strain of his marriage breakdown.
[276]Reasons for decision, [393].
[375]JXR submits that enmeshment of his work colleagues in his personal affairs and marriage breakdown occurred because of former wife’s numerous complaints against him. Some of the complaints were subsequently the subject of disciplinary action but found not substantiated by the Tribunal (the pillow incident and the gun incident).[277] His mother-in-law also made a variety of allegations against him,[278] at least some of which were investigated, but later retracted by her.[279] JXR submits that In DA (No 2), the context of misconduct was found to include the enmeshment of other police officers in the demise of DA’s marriage as a result of a campaign by his former wife to attack him.[280] DA also had a diagnosed adjustment disorder for which he was being treated at the time of the misconduct and was suicidal. Although the Appeal Tribunal did not consider it excused his behaviour, it held that they were relevant in determining the sanction to be imposed.
[277]Matters 1 a) a) and 1 a) b), reasons for decision, paragraphs [122-152].
[278]See Reasons for decision, at [15], and Section 21(2) documents, Volume 4, see generally pp1035-1260; especially at 1035-1043 and copy letter dated 26 May 2015 from NG addressed to JXR.
[279]Leave was granted by the Tribunal for the retraction to be filed as new evidence in the review proceeding: Tribunal’s reasons for decision, at [15].
[280]DA (No 2), at [38-39].
[376]The learned Member was alert to the making of allegations. He allowed fresh evidence in relation to the retraction.[281] He found Matters 1 a) a) and 1 a) b) unsubstantiated. He considered JXR’s arguments relying upon DA (No 2) at [374] (noting that it involved domestic violence allegations in the context of an adjustment disorder). The Tribunal also considered the Court of Appeal’s decision in Dark at [375]. In particular, the Tribunal referred to the Court’s finding that while an officer’s personal circumstances may evoke sympathy, they do not bear strongly on conclusions that may be drawn about the officer’s character. The community and QPS are entitled to expect that officers will behave appropriately despite their personal circumstances.
[281]Reasons for decision, [15].
[377]Although in discussing these matters, the learned Member did not specifically refer to the stress caused by the complaints made, it appears that he considered them generally in referring to JXR’s marital stresses when considering mitigating factors. It cannot be said that in dealing with them, he acted upon a wrong principle or disregarded relevant considerations.
2.3.4 The mitigating factors relied upon by JXR in respect of the individual aspects of the disciplinary charge substantiated by the Tribunal
[378]It is apparent from the learned Member’s reasons for decision that he had regard to the fact that the misconduct occurred in each case while JXR was off-duty.[282]That said, he identified appropriately that even though it occurred in his private life, aspects of the misconduct involved conduct towards a judicial officer, JXR’s in court behaviour in giving evidence and several incidents involved behaviour towards other police officers in the performance of their official duties.[283] He was cognisant of JXR’s ‘self-report’ in relation to Matter 1 a)c).[284] He referred to apologies made by JXR.[285] He discussed the admissions made by JXR throughout his reasons, (although as also discussed, the conduct was not admitted by JXR to be misconduct). Indeed, the learned Member found that JXR lacked insight into the seriousness of his actions and downplayed them.[286] The Member found that JXR lacked insight into the inappropriateness or impropriety of his conduct.[287] Those conclusions were reasonably open to him on the evidence.
[282]Reasons for decision, [376].
[283]Reasons for decision, [
[284]Reasons for decision, [372].
[285]Reasons for decision, [386].
[286]Reasons for decision, [390-393].
[287]Reasons for decision, [271].
2.3.5 Other mitigating factors
[379]It is apparent from the Tribunal’s reasons that it was aware of the dates of the misconduct and the period over which his acts of misconduct occurred.[288] It is also apparent that the Tribunal did not consider the period over which it occurred was a short period.[289] Further, the Tribunal did not accept that the conduct was out of character, as JXR continued to engage in improper conduct over some time, even after he was aware that the earlier incidents were being investigated.[290]
[288]Reasons for decision, [389-392].
[289]Ibid.
[290]Reasons for decision, [390-391].
[380]Although not discussing the details of JXR’s service, commendations, and the like, the learned Member had regard to JXR’s prior meritorious service.[291] It found that no doubt JXR had previously been a good police officer, that is, until his character was tested by the strain of his marriage breakdown.[292]
[291]Reasons for decision, [370], [393].
[292]Reasons for decision, [393].
2.3.6 The alleged impermissible reformulation of aspects of the disciplinary charge
[381]As discussed, there is no error in the making of contextual findings. Indeed, in Dark, the Court of Appeal, in considering whether an act of dishonesty was misconduct, said that the nature of the act and the circumstances in which it occurred are relevant to determining whether the act reveals the requisite lack of integrity or character to erode the trust that the public and other officers are entitled to repose in the officer.[293]
[293][2012] QCA 228, [33].
[382]However, there is error in reformulating a disciplinary charge.[294] As discussed in relation to the appeal on substantiation, JXR submits that some aspects of the disciplinary charges were impermissibly reframed, resulting in sanction being imposed on him for misconduct that is more serious than the conduct with which he was charged.
[294]Lee v CCC & Anor [2014] QCATA 326.
[383]In particular, he raised this issue in respect of the following grounds of appeal as summarised below:
a) Ground 6: the Tribunal made findings about his lack of cooperation with Sergeant Hendrie at [198, 372]. In his reasons for decision, under the heading of sanction, the learned Member refers in [372], to JXR’s lack of co-operation with Sergeant Hendrie in his discussion about the seriousness of the counselling incident and the false testimony incident.[295]
[295]Reasons for decision, [371-372].
In discussion, the Tribunal makes it clear that although it considered there may have been mitigating circumstances at the time JXR delivered, at least the first of, the two threats, the act of repeating the threat was more serious, and that providing false testimony in the subsequent DV proceedings demonstrated a concerning disregard for the legal process such as to call his integrity (as an officer who would be called upon to give evidence regularly) into question. (He makes observations concerning Sergeant Hendrie only in the context of explaining that JXR likely considered the threats made would not result in a DV application, because of events that had occurred some years earlier when he was unwell with Cushing’s Disease).
The learned Member went on to suggest in [376], that if the only substantiated misconduct related to the domestic violence allegations, a different approach may have been appropriate, but the false testimony incident involving a court appearance and the other misconduct involving conduct with other police officers also had to be considered. It is sufficiently clear that the lack of co-operation with Sergeant Hendrie was not instrumental in imposition of sanction.
b) Ground 21: The Tribunal found that the disorderly conduct involving Senior Constable OL continued for a period of 10 minutes at [307]. However, he does not mention the time frame in considering sanction. It is sufficiently clear from his reasons for decision, that it is the language JXR used towards Senior Constable OL and the circumstances of the conduct (that is, in public and heard by many members of the public) that were taken into account in determining sanction.[296]
[296]Reasons for decision, [376-380], [382], [389], [383].
2.3.7 Matters raised about sanction in the numbered grounds of appeal
[384]Ground 10: As set out earlier, ground of appeal 10 relates to alleged error in determining sanction. JXR says the Tribunal in [372], erroneously found in relation to the counselling incident, that JXR did nothing to ameliorate the threat against his wife, in that, the first threat having been made, he did not pause, collect himself and apologise. Instead, he repeated the threat. Paragraph [191] and Ground 2, also relate. For the reasons discussed earlier, there was no error by the Tribunal. JXR also contends error in the Tribunal’s finding that his wife did not threaten him, (although the relevance to sanction for which JXR contends is not clear). This was dealt with in Ground 7; we found it sufficiently clear that the Tribunal did not find that MR’s statement was the real threat and no error in his approach.
[385]JXR also submits, it seems, that the Tribunal erred in failing to accept his self-report of the counselling incident as mitigating in [372], but then criticising him in [373], for not self-reporting. The learned Member’s reasons for decision make it clear that he did not accept JXR’s submission that his self-report of the counselling incident showed remorse for his conduct. Rather, the Tribunal found it was only evidence of compliance with requirements to protect his position, although it did ensure his weapons were removed. The Tribunal observed that Magistrate Smith had not found the self-report mitigating. JXR says he relied on the Magistrate’s finding rather than his own in doing so. We disagree. As explained earlier, the learned Member made his own decision.
[386]In paragraph [373], the Tribunal then refers to JXR’s failure to self-report the threats against judicial and police officers incident as required of him as an officer. No error of the Tribunal in exercising its discretion in sanction is revealed by this.
[387]Ground 29: In [377-380], the Tribunal distinguished a decision relied upon by JXR, Watson-Paul v Acting Commissioner Kerry Dunn.[297] The learned Member did so on a variety of bases. Mr Watson-Paul’s off-duty (and while on sick leave) use of obscene language towards officers was a one-off incident; was not directed to officers with whom he served; did not occur in public and heard by members of the public like the OL incident; and did not occur in public and involve putting members of the public and officers’ safety at risk like the group incident. The Tribunal found that JXR’s acting in such an improper manner witnessed by officers he would be expected to serve with would affect the ‘self-esteem of members of the service’ unless appropriately sanctioned.[298]
[297][2013] QCATA 245.
[298]Reasons for decision, [378].
[388]JXR now complains of error because he may not have returned to serve with those officers: he may have been posted elsewhere. He relies upon a document in his Appeal Book that is not referenced to the s 21(2) documents or other evidence that was before the Tribunal and does not appear to have been in the material before the Tribunal, or at least we cannot locate it. In any event, there are many other differences between JXR’s case and Mr Watson-Paul’s that make JXR’s misconduct much more serious, whether or not he would have returned to serve, (had he not been dismissed) with the same officers. It does not appear to us that the Tribunal erred in its findings, but even if it did, in light of the overall circumstances, the Tribunal’s exercise of discretion did not miscarry as a consequence.
[389]Ground 36: In relation to JXR’s submission that the conduct substantiated in Matter 1 b)d) did not warrant a sanction of dismissal, we refer to our earlier discussion that a global sanction for the substantiated misconduct was appropriate. This aspect of the disciplinary charge was not sanctioned in isolation.
2.3.8 Comparable decisions
[390]JXR has again made submissions about the comparable decisions he raised in the review proceeding. He does not point to any error in the learned Member’s consideration of them. There is no obvious or material error in the Member’s treatment of them.
[391]As discussed earlier, JXR submits that DA (No 2) is comparable to his circumstances and considers it his principal argument on appeal. In that case, there were 3 substantiated disciplinary charges against DA. Firstly, breach of a DVO in sending three emails (not involving any actual or threatened violence). Secondly, untruthfully telling a superior officer that he had not accessed his estranged wife’s email account. Thirdly, providing false and misleading information in a statutory declaration to his estranged wife. The context of the conduct was considered relevant, although not excusing the conduct. DA, like JXR, was going through a marriage breakdown had a diagnosed adjustment disorder. He was suicidal at the time of the breaches of the DVO. His ex-wife had embarked upon a campaign to attack him, and enmeshed his colleagues in their affairs. The Appeal Tribunal found the circumstances extraordinary. DA had no further acts of misconduct at the time of sanction, some years later. There had been regrettable delay in finalising the proceedings. A suspension of 18 months was imposed.
[392]The learned Member discussed and summarised DA (No 2).[299] DA’s mitigating circumstances were in some respects similar to JXRs. However, although JXR’s personal circumstances engendered a degree of sympathy in the Tribunal, they did not bear strongly on the conclusions drawn about his integrity and character. Delays had also occurred, as well as some subsequent good service, and previous good service. The Member was cognisant of those. The Tribunal did not expressly find that JXR’s misconduct is more serious than DA’s. However, it is sufficiently clear that he did so find, having regard to the matters discussed in the previous paragraphs.[300]
[299]Reasons for decision, [374], [390].
[300]Reasons for decision, [390-394].
[393]We agree. DA’s misconduct, while serious and reflecting poorly on DA, does not demonstrate the complete disregard JXR’s misconduct showed for the role of police officers in upholding the law (in threatening his former wife and judicial and police officers); maintaining public order (in acting in a manner that demeaned a police officer, OL, while she was on duty and in public, as well as abusing a group and thereby placing himself, members of the public and police officers in the performance of their duties in danger); integrity in dealing with the court system (in knowingly giving false testimony) and respect for the justice system generally (in knowingly giving false evidence).
2.3.9 Fitness to be or continue to be an officer
[394]JXR contends that he had no current references due to internal police policy against giving them. Therefore, he says the learned Member was in error in finding that he had no references from officers with he would be serving.[301]. Even assuming that what JXR says is correct, irrespective of that, based on the learned Member’s findings and the inferences the learned Member drew, there is no error in his conclusion that JXR’s acts of misconduct had damaged his standing as an officer beyond repair[302] and that he was unfit to be an officer.[303]
[301]Reasons for decision, [394].
[302]Reasons for decision, [394].
[303]Reasons for decision, [396].
[395]In this regard, JXR had spoken to his colleagues and former police officer friends in a most derogatory and quite improper manner in public on several occasions. He had lost the support of Detective Senior Sergeant Hildred.[304] He knowingly gave false testimony in the Magistrates Court during a DV hearing. He did not uphold the DV legislation, which police officers play a very significant role in administering and enforcing.[305] This undermines the effectiveness of officers to deter unacceptable behaviour in others. He had behaved in a disorderly manner that placed him, members of the public and other police officers at risk by inciting the group, and failed to follow a lawful direction, instead making a threat of retribution against the officer concerned.[306] [392-393]. He had demonstrated, the learned Member found, inability to deal appropriately with the stresses in his life.[307]
[304]Reasons for decision, [370].
[305]Reasons for decision, [393.
[306]Reasons for decision, [392-393].
[307]Reasons for decision, [394].
2.3.10 Did the Tribunal err in not suspending JXR?
[396]JXR submits on appeal, without explaining how the Tribunal erred in determining that suspension was not an appropriate option, that in any event, the sanction of suspension would serve as a deterrent and instil public confidence in the disciplinary system.
[397]The Tribunal found suspension was not appropriate, on the basis that JXR had the chance to show he could change during his sick leave. Instead of sorting out himself and the issues causing his adjustment disorder, more incidents occurred, even when he knew the earlier events were being investigated, that resulted in misconduct.[308] There is no error identified in the Tribunal’s approach.
[308]Reasons for decision, [395].
2.3.11 Conclusions
[398]The reputation of and internal discipline within the police service and public confidence in the service, depend upon the integrity of its officers. The learned Member found that JXR acted in a way that the general public would not tolerate from its members let alone from police officers.[309] JXR’s conduct fell very far short of meeting the standards reasonably expected by members of the community. He demonstrated, as the Member found, that he is unfit to be a police officer and the only appropriate sanction is dismissal.[310]
[309]Reasons for decision, [392].
[310]Reasons for decision, [396].
[399]No error was made by the Tribunal in exercising its discretion to impose the sanction of dismissal on JXR.
3. Orders on the appeal
[400]We make directions for correction of the Tribunal’s orders as earlier set out, in respect of Matters 1 b)a) and 1b)b).The appeal is allowed in relation to the identified errors in the appeal on substantiation. Substantiation of Matter 1b)d) dot point 2 is set aside. We substitute our decision that Matter 1b)d) dot point 2, is not substantiated. As none of the other errors in relation to substantiation were material to the decision, subject to the matters identified in this paragraph, the decision of the Tribunal about substantiation is otherwise confirmed.
[401]The decision of the Tribunal about sanction is confirmed.
[402]We make orders accordingly.
4. Non-publication order
[403]Orders were made by the Tribunal in OCR067-15 on 29 July 2016, prohibiting publication of the material on the Tribunal file and, other than to the parties, the reasons for decision except in de-identified form.
[404]In light of the allegations of domestic violence and references to evidence given in and the parties to the DVO, consistently with the DV Act, we are satisfied that it is in the interests of justice that a similar non-publication order be made in these appeal proceedings pursuant to s 66 of the QCAT Act, preventing the publication of information that may identify JXR and his estranged wife. To achieve this aim, all family members of JXR, MR, as well as, Senior Constable OL and Constable AE must be de-identified in these reasons for decision. It is appropriate to exclude from the non-publication order, provision of copies of documents contained in the material by JXR and the QPS as may be lawfully required or requested by prospective employers, employment agencies, government departments, and professional bodies/organisations.
[405]As we have not received submissions about the terms of the non-publication order made and in case of any unforeseen and unintended consequences for the parties as a result of the wording of the order, we give both parties liberty to apply for 14 days in respect of any proposed amendments to the non-publication order.
8
14
1