Sutton v Acting Assistant Commissioner Glen Horton - [2022] QCAT 76

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sutton v Acting Assistant Commissioner Glen Horton [2022] QCAT 76

PARTIES: SCOTT SUTTON

(applicant)

v

A/ASSISTANT COMMISSIONER GLEN HORTON

(respondent)

APPLICATION NO/S:

OCR239-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 March 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

1. Leave to adduce the new evidence detailed in the Application for Miscellaneous Matters filed on 1 October 2021 is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – whether leave should be granted to adduce new evidence in review of police disciplinary decision – where review of substantiation and sanction relating to alleged improper conduct in making inappropriate comments of a sexual nature to female staff members of the general store and of inappropriate physical contact with one female staff member – where complainant owned the store - where competing versions of events – where new evidence said to show relationship between complainant and others in the community who ‘had it in’ for applicant – whether applicant knew or could be reasonably expected to know of the information the subject of the application - whether new evidence relevant and credible – likely value of the new evidence

Crime and Corruption Act 2001 (Qld), s 219P, s 219O, s 219Q, Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20

Clarke v Japan Machines (Australia) Pty Ltd [1994] QdR 404

Gee v Deputy Commissioner Ian Stewart [2011] QCAT 402
Germanos v Cosgrove [2013] QCATA 203

Pavlovic v Commissioner of Police [2007] 1 QdR 344

APPEARANCES & REPRESENTATION:

Applicant:

Gilshenan & Luton Legal Practice

Respondent:

MD Nicolson, counsel, instructed by QPS Legal Unit

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The substantive application seeks a review of the decision of the respondent made on 29 May 2020 in relation to substantiation of Matters 1 (a) and 1 (b) and the sanction imposed.
Sergeant Sutton seeks leave to adduce evidence that was not before the respondent when the decision was made. The respondent submits the application for new evidence should be dismissed but that, if leave was granted, that it be given leave to adduce evidence in reply
For the reasons that follow, I have decided not to grant leave to adduce the new evidence.
Nature of review of police disciplinary actions
Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) gives the Tribunal power to review decisions where that jurisdiction has been conferred by an enabling Act.
Section 219P of the Crime and Corruption Act 2001 (Qld) (CC Act) provides that an aggrieved person for a reviewable decision may apply to QCAT within 28 days after receiving notice of the decision.
‘Reviewable decision” for the purposes of the CC Act includes a decision made under the Police Service Administration Act 1990 (Qld) (PSAA) listed…

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.

Keep reading for free

Create a free CaseChat account to read Sutton v Acting Assistant Commissioner Glen Horton and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCAT 76
Decision Date

CaseChat Overview and Summary

In the case of Sutton v Acting Assistant Commissioner Glen Horton, Sergeant Sutton contested disciplinary charges related to his conduct, specifically denying allegations of misconduct. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with deciding whether Sergeant Sutton could introduce new evidence into the case. This new evidence comprised affidavits from Ms Regan Cooksley, Sergeant Joseph Coates, and Sergeant Sutton himself, which sought to establish that there were pre-existing rumours and a general dislike for Sergeant Sutton within the community, potentially influencing the formal complaint against him. The central legal issue was whether the tribunal should permit the introduction of new evidence that was not previously known or reasonably ascertainable by Sergeant Sutton at the time of the original hearing.

The tribunal exercised its discretion to refuse the application for new evidence. It was found that the proposed evidence was not unknown or unforeseeable by Sergeant Sutton at the time of the original proceeding. The tribunal noted that Sergeant Coates had already spoken to Ms Cooksley and taken contemporaneous notes in December 2018, which was about a year and a half before the original hearing. Despite Sergeant Sutton’s claims that he was unaware of these interactions, the tribunal concluded that there were ample opportunities for him to raise this evidence. Additionally, the tribunal found that the new evidence lacked relevance and probity, and was not sufficiently probative to influence the outcome of the case. As such, the application to adduce the new evidence was refused.

In conclusion, the tribunal's decision was grounded in the principle that new evidence should only be admitted if it was not known or could not reasonably have been known at the time of the original hearing, and if it would significantly influence the outcome. Given the findings that the new evidence was foreseeable and lacked probative value, the application was appropriately denied. The tribunal upheld its discretion to maintain the integrity of the disciplinary process by refusing to allow the introduction of the new evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Sergeant Sutton admits saying “Any fitter and I’d be you” to Ms Tott but otherwise denies Matter One and Matter Two.The new evidence The new evidence consists of:(a)an affidavit of Ms Regan Cooksley sworn 29 September 2021;(b)an affidavit of Sergeant Joseph Coates of the QPS sworn 8 September 2020; and(c)an affidavit of the applicant sworn 28 September 2020. Ms Cooksley works at the Widgee General Store. She said that Sergeant Sutton’s neighbour (Emily) attended the store and told her that he had shot at her dog and that she was going to get him fired from his job. Sergeant Coates says in his affidavit that on 28 December 2018 he questioned Ms Cooksley and she said that Emily had made disparaging comments about Sergeant Sutton and had told her that he had discharged his firearm 20 metres away from her and that he was “going down because of it”. Sergeant Sutton says in his affidavit that he knows Emily and the complainant, Mrs McCallum were friends. He says he told Sergeant Coates in December 2018 that he believed Emily was spreading rumours about him and trying to get him removed from his position and that Sergeant Coates said he would look into it for him. Sergeant Sutton said several days after this he received a phone call from an Acting Inspector who told him, in effect, to not say anything about the rumours and to keep his powder dry. Consequently, Sergeant Sutton decided to not raise the matter again. Sergeant Sutton says that after he was sanctioned and after he filed his application for review, Sergeant Coates told him that he had actually spoken to an employee at Widgee General Store and taken contemporaneous notes. Sergeant Sutton then informed his legal representative of the information.Submissions The applicant submitted that the new evidence sought to be adduced by Ms Cooksley and Sergeant Coates was not known to him at the time of the original hearing and could not reasonably have been known by him. He was not to know that Sergeant Coates had made enquiries with Ms Cooksley and taken contemporaneous notes of their conversation. He submits that the evidence supports that there were rumours about him and a dislike of him in the community before a formal complaint was made and support the proposition that members of the community other than the complainant wanted him removed from his position as Acting Senior Constable of the Kilkivan Police Station. The applicant had originally submitted to the respondent that the complainant had developed a dislike of him and that she had discussed her dislike of him with many community members. The applicant had submitted that the true motivation for her complaint was to have him removed as the police officer at Kilkivan. The applicant submits that the new evidence supports the likelihood that there was a general dislike of him prior to the formal complaint and that the dislike was not only from Ms McCallum. Further, that it supports that the true motivation of the complaint was a longstanding dislike of him by the members of the community who were well known to Mrs McCallum and who desired to have him removed.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Further, the respondent submitted that the applicant has not demonstrated any special circumstances that would make it unfair to disallow the application for new evidence. They say he was legally represented at the disciplinary hearing, he had ample opportunity to provide submissions and did so and has not shown any extenuating circumstances to show why he could not obtain the new evidence for the original proceeding.Consideration In the exercise of my discretion, I have decided to refuse the application for new evidence. I am not satisfied that the proposed evidence was evidence which was not known, or could not reasonably have been expected to have known, by Sergeant Sutton at the time of the original proceeding on 29 May 2020.[2] The first affidavit of Sergeant Coates refers to a conversation he had with Ms Cooksley on 28 December 2018, approximately a year and a half before the original hearing. That affidavit appears to depose to the conversation referred to by Ms Cooksley in her affidavit. The second affidavit refers to a conversation with Sergeant Coates in December 2018 about the subject of Emily’s conduct. There appears to have been a deliberate decision not to use the information. In any event, there were prior opportunities for him to raise the proposed evidence.[3] Further, and in the alternative, the applicant has not demonstrated any special circumstances that would make it unfair to refuse the application to adduce the proposed evidence.[4][2]The disciplinary proceeding commenced on 4 March 2020 and the applicant filed submissions in his defence on 15 April 2020 and 23 June 2020.[3]Gee v Deputy Commissioner Ian Stewart [2011] QCAT 402 at [19]-[21].[4]Crime and Corruption Act 2001 (Qld) s 219Q(2)(b). Secondly, I think it unlikely that the evidence will have an important influence on the result. It is not sufficiently probative. It may go to a motive for Emily to dislike Sergeant Sutton, but it is not sufficiently probative for staff members of the Kilkivan General Store and Rural Store to fabricate evidence. I find that the proposed evidence lacks relevance and probity. Accordingly, I refuse the application.

CITATION:	Sutton v Acting Assistant Commissioner Glen Horton [2022] QCAT 76
PARTIES:	SCOTT SUTTON
(applicant)
v
A/ASSISTANT COMMISSIONER GLEN HORTON
(respondent)
APPLICATION NO/S:	OCR239-20
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	7 March 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Traves
ORDERS:	1. Leave to adduce the new evidence detailed in the Application for Miscellaneous Matters filed on 1 October 2021 is refused.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – whether leave should be granted to adduce new evidence in review of police disciplinary decision – where review of substantiation and sanction relating to alleged improper conduct in making inappropriate comments of a sexual nature to female staff members of the general store and of inappropriate physical contact with one female staff member – where complainant owned the store - where competing versions of events – where new evidence said to show relationship between complainant and others in the community who ‘had it in’ for applicant – whether applicant knew or could be reasonably expected to know of the information the subject of the application - whether new evidence relevant and credible – likely value of the new evidence Crime and Corruption Act 2001 (Qld), s 219P, s 219O, s 219Q, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20 Clarke v Japan Machines (Australia) Pty Ltd [1994] QdR 404 Gee v Deputy Commissioner Ian Stewart [2011] QCAT 402 Germanos v Cosgrove [2013] QCATA 203 Pavlovic v Commissioner of Police [2007] 1 QdR 344
APPEARANCES & REPRESENTATION:
Applicant:	Gilshenan & Luton Legal Practice
Respondent:	MD Nicolson, counsel, instructed by QPS Legal Unit
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)