OP v Gollschewski (No 2)

Case [2021] QCATA 45

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

OP v Gollschewski (No 2)  [2021] QCATA 45
PARTIES: OP

(applicant/appellant)

v
DEPUTY COMMISSIONER STEVEN GOLLSCHEWSKI

(respondent)

APPLICATION NO/S:

APL296-19

ORIGINATING APPLICATION NO/S:

OCR005-16

MATTER TYPE:

Appeals

DELIVERED ON:

20 April 2021

HEARING DATE:

9 April 2021

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC
ORDERS:

1.   The sanction imposed by the Tribunal on 11 October 2019 be set aside.

2.   In its place, it is ordered that the appellant be suspended without pay from duty with the Queensland Police Service for a period of eight months, to take effect from 19 February 2016.

3.   That sanction of suspension is itself suspended, pursuant to the Crime and Corruption Act 2001 (Qld) s 219L, for a period of two years from the date on which the appellant returns to duties with the Queensland Police Service, on condition that, during that period of two years, the appellant not commit any act of misconduct.

4.   If during that period of two years the appellant commits any act of misconduct, the suspension is revoked and the suspension of the appellant from the Queensland Police Service has immediate effect. 

5.   If the appellant seeks any order for costs, he must file in the Tribunal and serve on the respondent submissions in writing in support of the order sought within twenty-one days from the date of this decision.

6.   If such submissions are served on the respondent, the respondent may file and serve submissions in response within twenty-one days from the date of receipt of such submissions.

7.   Any submissions in reply are to be filed and served within fourteen days of the service of the submissions in response. 

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – appeal from decision of Tribunal upholding findings of sexual abuse of son and breach of bail condition – decisions set aside – on rehearing, charges not substantiated – new sanction required – sanction of suspension – sanction suspended 

Crime and Corruption Act 2001 (Qld) s 219L

Aldrich v Ross [2001] 2 Qd R 235
Austin v Martin [2018] QCAT 120
Compton v Stewart [2010] QCAT 384
DA v Stewart [2011] QCATA 359
DA v Stewart (No 2) [2013] QCATA 162
Flanagan v Gee [2020] QCAT 204
Flegg v Crime and Misconduct Commission [2014] QCA 42
Harvie v Stewart [2014] QCAT 388
Kennedy v Stewart [2012] QCAT 66
Kennedy v Stewart [2012] QCATA 258
McKenzie v Wright [2011] QCATA 309
Police Service Board v Morris (1985) 156 CLR 397
Spencer v Baulch [2004] QCA 234
Stewart v Dark [2012] QCA 228

APPEARANCES & REPRESENTATION:

Applicant:

M Black, instructed by Gilshenan & Luton, solicitors

Respondent:

S A McLeod QC, instructed by Police Service Solicitor

REASONS FOR DECISION

  1. This is an appeal from the decision of a Tribunal Member on 11 October 2019 in a Police disciplinary matter.  The appellant had been charged with official misconduct, constituted by five matters, which had all been upheld by the…

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Details
AGLC
Op v Gollschewski (No 2) [2021] QCATA 45
Case
[2021] QCATA 45
Decision Date

CaseChat Overview and Summary

The case of OP v Gollschewski (No 2) involved an appeal by a police officer against a decision of the Queensland Police Service Tribunal, which had upheld findings of sexual abuse of his son and a breach of bail conditions. The Court of Appeal was required to review the Tribunal's decision and determine whether the sanctions imposed were appropriate. The primary legal issue before the court was whether the Tribunal's findings and the subsequent sanction of dismissal were justified by the evidence and whether the process followed was fair and lawful.

The court found that the Tribunal's findings of misconduct were not substantiated on rehearing and thus set aside the original decision. The Court of Appeal concluded that the appropriate sanction should be a suspension without pay for a period of eight months. The court held that this sanction should be suspended under the Crime and Corruption Act 2001 (Qld) for two years, contingent upon the appellant not committing any further acts of misconduct. If the appellant were to commit any misconduct during this period, the suspension would become effective immediately. The court also outlined the process for any future applications for costs between the parties.

Orders

Orders of the court

1. The sanction imposed by the Tribunal on 11 October 2019 be set aside.

2. In its place, it is ordered that the appellant be suspended without pay from duty with the Queensland Police Service for a period of eight months, to take effect from 19 February 2016.

3. That sanction of suspension is itself suspended, pursuant to the Crime and Corruption Act 2001 (Qld) s 219L, for a period of two years from the date on which the appellant returns to duties with the Queensland Police Service, on condition that, during that period of two years, the appellant not commit any act of misconduct.

4. If during that period of two years the appellant commits any act of misconduct, the suspension is revoked and the suspension of the appellant from the Queensland Police Service has immediate effect.

5. If the appellant seeks any order for costs, he must file in the Tribunal and serve on the respondent submissions in writing in support of the order sought within twenty-one days from the date of this decision.

6. If such submissions are served on the respondent, the respondent may file and serve submissions in response within twenty-one days from the date of receipt of such submissions.

7. Any submissions in reply are to be filed and served within fourteen days of the service of the submissions in response.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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