Tolsher v Commissioner Stewart - [2013] QCAT 47

CITATION:

Tolsher v Commissioner Stewart [2013] QCAT 47

PARTIES:	David Tolsher (Applicant)
v
Commissioner Ian Stewart (Respondent)

APPLICATION NUMBER:

OCR409-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Kerrie O’Callaghan, Senior Member

DELIVERED ON:

24 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to stay the decision of Commissioner Stewart is refused.

CATCHWORDS:

POLICE DISCIPLINE – application for stay of order of demotion

Queensland Civil and Administrative Tribunal Act 2009, ss 20(1), 22(4), 32

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
QPS v Compton [2011] QCATA
Robb v The Law Society of the Australian Capital Territory [ACT 634 1996]
Legal Services Commissioner v Baker [2005] QCA 482

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

In the early hours of 12 August 2012 Sergeant Tolsher whilst off duty drove home intoxicated from a function. He was pulled over by police, undertook a breath test which resulted in a reading of .15.
He was charged with drink driving and pleaded guilty in the Magistrates Court on 20 August 2012. He was convicted (though no conviction was recorded), fined and disqualified from driving for six months.
Only three weeks prior to this incident he had received a promotion to the rank of Senior Sergeant Officer in Charge Oxley District Child Protection and Investigation Unit.
A disciplinary hearing was conducted in relation to the incident and Commissioner Stewart found the following charge of misconduct against Sergeant Tolsher was substantiated:
That on the 12th day of August 2012 at Brisbane your conduct was improper in that you, whilst off duty:
(a) drove a private motor vehicle whilst under the influence of alcohol;
(b)effectively made requests and comments to Constables Surman and Cairns to avoid being required to submit to a breath analysing test.
The following particulars were provided:
Investigations have identified that in relation to matters one (a):
·at about 1.45am on 12 August 2012 you were observed by police from Indooroopilly station driving erratically in a black Lexus on Milton Road Brisbane;
·you were off duty at the time and had attended a social function in the City;
·you were subsequently intercepted by police and upon request, provided a roadside breath test reading of .16%;
·at about 2.54am, upon requirement made and direction given, you provided a specimen of breath for analysis on an approved breath analysing instrument that resulted in a certificate being issued for a breath alcohol concentration of .150 grams of alcohol per 210 litres of breath (.15%);
·you were issued with a Notice To Appear at the Brisbane Magistrates Court on 10 September 2012;
·you brought forward this matter for an early plea of guilty on Monday 20 August 2012; and
·you were subsequently found guilty, fined $700.00 and disqualified from driving for 6 months. No conviction was recorded.
In relation to matter one…

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: [2013] QCAT 47
Decision Date

CaseChat Overview and Summary

In this case, the applicant, David Tolsher, a police officer, sought a stay of the disciplinary decision made by the Commissioner, Ian Stewart. The Commissioner had found Tolsher guilty of misconduct for driving while intoxicated and attempting to evade a breath test, leading to his demotion. Tolsher contested the decision and sought a stay of the demotion pending the outcome of his review application. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the stay should be granted.

The legal issues before the Tribunal were whether Tolsher had an arguable case for the review of the demotion decision and, if so, whether the balance of convenience favoured granting the stay. An arguable case exists if there is a possibility that the Tribunal might find the decision to be incorrect. The balance of convenience involves weighing the potential harm to both parties and the public if the stay is granted or refused. The Tribunal considered whether staying the demotion would erode public confidence in the police force, which is crucial for maintaining law and order.

The Tribunal found that Tolsher had presented an arguable case for the review, as there was a possibility that the demotion could be deemed manifestly excessive. However, in considering the balance of convenience, the Tribunal emphasised the importance of maintaining public confidence in the police force. The Tribunal agreed with the Commissioner that staying the demotion could undermine public confidence due to Tolsher’s drink driving offence and his attempt to evade the breath test. The potential loss of public confidence outweighed the possible disadvantage to Tolsher if his position was filled before the review was determined.

Ultimately, the Tribunal refused the application for a stay of the demotion, as it was not desirable to make an order staying the decision. The Tribunal concluded that the potential harm to public confidence in the police force if the demotion was stayed was too significant to warrant granting the stay.

Orders