Ss v Assistant Commissioner Marty Mickelson - [2021] QCAT 73

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SS v Assistant Commissioner Marty Mickelson [2021] QCAT 73

PARTIES: SS

(applicant)

v

ASSISTANT COMMISSIONER MARTY MICKELSON

APPLICATION NO/S:

OCR009-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 February 2021

HEARING DATE:

29 January 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:
1. The disciplinary charge against the applicant is substantiated on the ground that his conduct amounted to misconduct.

2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the name of the person named in the domestic violence order as the aggrieved person. The applicant is similarly de-identified They are respectively referred to as GG and SS in this decision and accompanying reasons.

CATCHWORDS:
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether behaviour amounts to misconduct - breach of domestic violence order – finding of guilt by magistrate

Crime and Corruption Act 2001 (Qld), s 219O, Schedule 1
Police Service Administration Act 1990 (Qld), s 1.4, s 7.4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 24(1)(b), s 32

Murray v Deputy Commissioner Stewart [2011] QCAT 583
Austin v Deputy Commissioner Peter Martin [2018] QCAT 120
Shauer v Banham (Misconduct Tribunal) 24 February 1997
Orme v Atkinson (Misconduct Tribunal) 17 September 1999
Scott v Assistant Commissioner Peter Martin [2015] QCAT 423
Rohweder v Acting Assistant Commissioner Keating [2016] QCAT 347
Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor (No 2) [2020] QCAT 426
O’Brien v Assistant Commissioner Stephen Gollschewski, Qld Police Service [2014] QCATA 148
Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123
Deputy Commissioner Stewart v Dark [2012] QCA 228

Aldrich v Ross [2001] 2 Qd R 235

APPEARANCES & REPRESENTATION:

Applicant:

Mr Calvin Gnech

Respondent:

Ms Rachel Berry for the Respondent

REASONS FOR DECISION

The applicant, SS, is a Sergeant of the Queensland Police Service (QPS). On 9 December 2019, following disciplinary proceedings, there was a finding of misconduct against him made by the Respondent, the particulars of which are summarised as:
That on 24 May 2017, SS’ conduct did not meet the standard expected of a member of the Queensland Police Service in that he contravened a domestic violence order.
The particulars of that disciplinary charge were as follows:
(a)The applicant was respondent to a domestic violence order naming GG as the aggrieved spouse;
(b)Condition 5 of that order stated that the applicant was prohibited from following or approaching within 200 meters of GG;
(c)On 24 May 2017, the applicant was being treated as an inpatient at the Caloundra Hospital;
(d)He saw GG in the foyer of the hospital and approached within 200 meters of them and spoke their name twice.
On 11 April 2018, after a summary trial in the Caloundra Magistrates Court, the applicant was found guilty of the offence of breaching the domestic violence order. By way of sentence Magistrate Tonkin ordered that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 73
Decision Date

CaseChat Overview and Summary

SS, a member of the Queensland Police Service, was found to have breached a domestic violence order by approaching his ex-partner within 200 metres while he was an inpatient at a hospital. This incident led to disciplinary proceedings against SS for misconduct, which he contested. The central legal issue was whether SS's conduct amounted to misconduct under the Police Service Administration Act 1990 (Qld). The Tribunal had to determine if SS's actions, which included breaching a domestic violence order and subsequently being found guilty in a criminal court, met the threshold for misconduct as defined by the Act. This required an assessment of whether SS's conduct was disgraceful, improper, or did not meet the standard of conduct the community reasonably expects of a police officer.

The Tribunal examined the particulars of the charge and the evidence presented, including the fact that SS was found guilty by a Magistrate of breaching the domestic violence order. It considered submissions from both parties on the nature of misconduct, the impact of delay in disciplinary proceedings, and the relevance of SS's mental health at the time of the incident. The Tribunal also noted that while misconduct does not automatically follow every breach of discipline, the breach of a domestic violence order by a police officer sets a particularly high standard due to the role of police in enforcing such orders. The Tribunal concluded that SS's breach of the domestic violence order, especially given his role as a police officer, did not meet the standard of conduct expected by the community. Therefore, the Tribunal confirmed the substantiation of the disciplinary charge against SS.

The final orders of the Tribunal were that the disciplinary charge against SS was substantiated on the ground that his conduct amounted to misconduct. Additionally, the names of the parties involved in the domestic violence order were de-identified in accordance with section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Orders