Vercoe v Deputy Commissioner Taylor - [2025] QCAT 58

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Vercoe v Deputy Commissioner Taylor & Anor [2025] QCAT 58

PARTIES:

LANCE VERCOE

(applicant)

v

DEPUTY COMMISSIONER TAYLOR

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

OCR259-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 February 2025

HEARING DATE:

21 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.     Particular (iii) relied on in Matter 1, although substantiated, did not constitute official misconduct and the first respondent’s decision that it constituted official misconduct is set aside.

2.     The decision of the first respondent that Matter 1 is substantiated and constituted official misconduct is confirmed.

3.     The sanction imposed by the first respondent in respect of Matter 1 is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – POLICE – MISCONDUCT – review of a finding of misconduct by the applicant officer – nature of the review – where the applicant accessed information using the Queensland Police Service computer system – where the information accessed was not for an official police purpose – where applicant’s access to information raised a conflict of interest – whether all particulars of Matter 1 substantiated – whether sanction imposed by the respondent manifestly excessive – whether valid exercise of discretion.

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

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20
Police Service Administration Act1990 (Qld), s 7.1, s 7.2, s 7.4, s 7.8, s 7.34, s 7.35, s 7.44, Schedule 2 Dictionary

Police Service Administration (Discipline Reform) and Other Legislation Amendment Act2019 (Qld)

Acreman v Deputy Commissioner Pointing [2021] QCATA 133

Assistant Commissioner Brian Wilkins & Anor v Gunter (No 2) [2021] QCATA 42
Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123
Briginshaw v Briginshaw (1938) 60 CLR 336
Crime and Corruption Commission v Chief Superintendent Horton APM & Anor [2021] QCAT 437
Deputy Commissioner Stewart v Dark [2012] QCA 228
Gunter v Assistant Commissioner Wilkins [2021] QCA 274
Heuston v Horton [2024] QCAT 432
House v R (1936) 55 CLR 499
Jadwan Pty Ltd v Rae & Partners(a firm) [2020] FCAFC 62
MAM Mortgages Ltd v Cameron Brothers [2002] QCA 330
Pillai v Messiter(No 2) (1989) 16 NSWLR 197
Robinson Helicopter Company Inc v McDermott [2016] HCA 22
Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375

Willmott v Carless [2024] QCA 115

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Mr Grant of counsel instructed by the Queensland Police Service Legal unit

Second Respondent

Ms Price of the Crime and Corruption Commission

REASONS FOR DECISION

Introduction

In January 2021 the applicant was given a Disciplinary Proceeding Notice (‘Notice’) relating to “unauthorised access to information stored on Service databases”.[1] The database referred to is the Queensland Police Service (‘QPS’) computer system, QPRIME. It is contended that the applicant’s access was unrelated to his official police duties. The Notice states that the conduct, if substantiated, would provide grounds for disciplinary action pursuant to s 7.4 of the Police Service Administration Act1990

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: [2025] QCAT 58
Decision Date: 4 February 2025

CaseChat Overview and Summary

In Vercoe v Deputy Commissioner Taylor, the applicant, a police officer, sought review of findings of misconduct and the sanctions imposed by the Deputy Commissioner, including a demotion. The primary issue for the court was whether the Deputy Commissioner's decision to substantiate the misconduct and the subsequent sanction were legally sound. The court needed to determine whether the findings of misconduct were supported by evidence, and if the sanction imposed was excessive or an error in discretion.

The court found that the Deputy Commissioner had correctly followed the required process, and the decision to substantiate the misconduct was not flawed except for one particular. The court emphasised that the review was not a rehearing of the disciplinary proceeding and that the applicant needed to demonstrate an error of fact or law that warranted interference with the Deputy Commissioner's decision. The court upheld the substantiation of misconduct except for one particular that did not constitute official misconduct. Regarding the sanction, the court held that the Deputy Commissioner's discretion was validly exercised, and the sanction was not manifestly excessive. The principles in House v R guided the court in reviewing the exercise of discretion, and no error was found in the Deputy Commissioner's decision.

The court confirmed the substantiation of misconduct in all aspects except one, which was set aside. The sanction imposed by the Deputy Commissioner was upheld as a valid exercise of discretion. The court did not substitute its own decision on sanction, as the review was not a merits review. The final orders were that the particular not constituting official misconduct was set aside, the overall substantiation of misconduct was confirmed, and the sanction imposed was also confirmed.

Orders

Orders of the court

1. Particular (iii) relied on in Matter 1, although substantiated, did not constitute official misconduct and the first respondent’s decision that it constituted official misconduct is set aside.

2. The decision of the first respondent that Matter 1 is substantiated and constituted official misconduct is confirmed.

3. The sanction imposed by the first respondent in respect of Matter 1 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision under review both in terms of substantiation and sanction have been signed off by the Deputy Commissioner and that satisfies me that the correct process has been followed. This ground of review fails.Conclusion on Substantiation This review application is not a rehearing of the disciplinary proceeding before the Deputy Commissioner. The onus is on the applicant to demonstrate some error of fact or law which would warrant an interference with the Deputy Commissioner’s decision on substantiation. The Deputy Commissioner took into account the standard of proof required to be applied having regard to the seriousness of the charges against the applicant.[30][30]Briginshaw v Briginshaw (1938) 60 CLR 336. Except for Matter 1 particular (iii) the applicant has not demonstrated any error in the Deputy Commissioner’s decision that the applicant engaged in misconduct in accessing QPRIME for matters unrelated to the performance of official police duties. Therefore Matter 1 remains substantiated.Sanction On 9 August 2021, the Deputy Commissioner imposed the following sanction:I order that you be demoted from Superintendent pay point 1 to Inspector pay point 7. Further, that 6 months from the date of this sanction your demotion is suspended until 24 September 2022 on condition that you do not commit any misconduct. Once your demotion is suspended you will return to Superintendent ay point 1. In recognition of the time already served as a Superintendent, you will be eligible to progress immediately to pay point 2. Because this review is not a merits review the Tribunal cannot substitute its own decision on sanction. Therefore, in respect of the sanction imposed, the applicant must demonstrate that on the findings of the Deputy Commissioner, there was an error in the exercise of discretion resulting in the sanction being manifestly excessive. The exercise of the discretion must be considered in light of the principles in House v R:[31]It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so…[31](1936) 55 CLR 499. Once the Deputy Commissioner found the conduct substantiated, s 7.35(2)(b) of the PSA Act authorised him to impose any of the disciplinary sanctions referred to in s 7.34 of the PSA Act. Under s 7.35(3) the Deputy Commissioner is to have regard to:(a)Any considerations provided for in a guideline made under section 7.44;(b)The subject officer’s disciplinary history and service history;(c)Any professional development strategies imposed on, or completed by, the subject officer in relation to the ground for disciplinary action.

Ratio Decidendi

Legal Principle Established

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