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  • Unreported Judgment

ODM v Deputy Commissioner Gollschewski

 

[2019] QCAT 306

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ODM v Deputy Commissioner Gollschewski [2019] QCAT 306

PARTIES:

ODM

(applicant)

v

DEPUTY COMMISSIONER STEVEN Gollschewski

(respondent)

APPLICATION NO/S:

OCR005-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 October 2019

HEARING DATE:

30 and 31 May 2019

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. The decision of Deputy Commissioner Gollschewski in respect of Matters 1, 4 and 5 is confirmed.
  2. The decision of Deputy Commissioner Gollschewski in respect of Matters 2 and 3 are set aside.
  3. The decision of Deputy Commissioner Gollschewski that the applicant be dismissed from the Queensland Police Service is confirmed.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where applicant was charged with a number of matters involving indecent dealing with minors, interfering with a potential witness in a criminal trial, and offensive behaviour in a court room – whether the conduct in the court room constitutes misconduct or breach of discipline – whether charges substantiated to a level of reasonable satisfaction – where credibility of witnesses challenged

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

Police Service Administration Act 1990 (Qld), s 7.4(2)

Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123

Deputy Commissioner Stewart v Dark [2012] QCA 228

Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564

Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348

APPEARANCES:

Applicant:

M Black of counsel instructed by Gilshenan & Luton Legal Practice

Respondent:

S McLeod QC instructed by the Queensland Police Service Legal Unit

REASONS FOR DECISION

  1. [1]
    The applicant was sworn in as a police officer on 23 May 2001. In October 2013, he was directed to attend a disciplinary hearing in respect of allegations that he had engaged in official misconduct.
  2. [2]
    The official misconduct alleged against the applicant are as follows:

Matter 1

That between 30 October and 30 November 2002 at Wellington Point your conduct was improper in that you, whilst off duty, engaged in sexual activities with your son, DOJ who was at the time under the age of 16.

Matter 3

That between 17 April 2003 and 20 January 2004 at Zilzie your conduct was improper in that you, whilst off duty, engaged in inappropriate sexual activities with your daughter, ODL, who was then aged under 16 years.

Matter 4

That on 30 March 2010 at Yeppoon your conduct was improper in that whilst suspended from the Queensland Police Service you breached bail conditions imposed after you were charged with a number of criminal offences.

Matter 5

That on 23 March 2011 at Rockhampton (your conduct was improper in that whilst suspended from the Queensland Police Service and within the District Court you:

  1. used inappropriate and offensive language;
  2. attempted to leave the precinct of the Court without authority; and
  3. inappropriately applied force against a police officer.
  1. [3]
    On 5 January 2016, the respondent found that each of the allegations of misconduct had been substantiated. On 19 February 2016 the respondent imposed a sanction that the applicant be dismissed from the Queensland Police Service (‘QPS’).
  2. [4]
    On 21 January 2015 the applicant filed an application to review that respondent’s decision in the Tribunal. The broad grounds of review as set out in the application are that the Deputy Commissioner:
  1.  Failed to take into account relevant evidence.
  1.  Places [sic] undue weight on certain evidence.
  1.  Made findings not supported by evidence.
  1.  Made findings based on insufficient and inexact evidence; and
  1.  Failed to correctly apply the relevant standard of proof.
  1. [5]
    The above grounds have been supplemented with detailed written submissions from the applicant’s Counsel addressing each of the particulars of the Matters alleged by the Deputy Commissioner.
  1. [6]
    Originally there was a further matter, Matter 2, whereby it was alleged that the applicant engaged in further misconduct which involved and an assault on DOJ however, it has been conceded that the Deputy Commissioner had no power to consider or determine the allegation in Matter 2. Other than to formally order that the decision in respect of Matter 2 be set aside, no further consideration has been given to this particular charge.

Background

  1. [7]
    DOJ, ODL and ODS are children of the applicant and HS.[1] They were married in February 1987 and divorced in July 2003. DOJ was born on 4 March 1988, ODL on 9 June 1990 and ODS on 16 August 1991.
  2. [8]
    After ODS was born, the applicant’s marriage started to develop difficulties and the relationship between HS and the applicant deteriorated. However, in 1989 they moved to Capella in Central Queensland where the applicant gained employment. The marital problems continued which resulted in a period of separation in early 1998. HS took the children back to Brisbane to live with her mother while the applicant remained in Central Queensland. Later in that year, there was a reconciliation and they began living together at an address at Wellington Point.
  3. [9]
    While living at Wellington Point the applicant applied to the Queensland Police Service to become a police officer and entered the police academy in late 2000. He commenced duties as a sworn police officer in May 2001. The difficulties in the marriage continued and in February 2002 there was a further separation but this time, there was no physical separation as such but it was a technical separation under one roof.
  4. [10]
    The applicant then obtained a transfer to Rockhampton where he commenced duties in June 2002 and resided at an address in Zilzie in the environs of Rockhampton.
  5. [11]
    It was after this second separation that HS developed a relationship with HM and in the following year, they took up residence together. However, prior to this and in late 2002, DOJ decided that he did not want to stay with HS and decided to move to Rockhampton to be with his father. This did not last very long and in November 2002 DOJ moved back to Brisbane to stay with his mother. According to DOJ this was because of a significant altercation with his father.
  6. [12]
    There were no further reconciliations between the applicant and HS, and in July 2003 they divorced. HS ultimately married HM and both DOJ and ODL resided with them together with ODS.
  7. [13]
    After the separation not only did DOJ travel to Rockhampton to be with his father, but ODL and ODS also holidayed there with the applicant in 2002.
  8. [14]
    Prior to February 2004, there had been no direct complaints of sexual abuse by DOJ. However, during a conversation with HM, DOJ said that he had been sexually interfered with by the applicant. This conversation is confirmed in a statement from HM. Police became involved at that stage but in the absence of any details of the sexual abuse from DOJ, the matter did not go further.
  9. [15]
    Then in June 2008 and August 2008 both DOJ and ODL provided written statements to the police alleging that the applicant sexually interfered with them and provided particulars of the interference which are subject of Matters 1 and 3.
  10. [16]
    Police investigated these allegations, interviewed the applicant, and then in June 2010 he was charged with a number criminal offences in relation to DOJ being: indecent dealing of a child under the age of 12 and indecent dealing of a child under the age of 16. He was committed for trial which trial was held in the District Court in March 2011. Of the five charges on the indictment, he was convicted of three and acquitted on two.
  11. [17]
    The applicant appealed the convictions to the Court of Appeal. On 11 November 2011 the Court of Appeal set aside the convictions on the grounds of a misdirection to the jury by the trial judge. It is worthy to note that one of the members of the Court of Appeal, Justice Chesterman, would have entered an acquittal in respect of all charges however, the majority concluded that the matter should go back to the District Court for a retrial. After this DOJ withdrew his cooperation with the prosecution for the retrial and ultimately a nolle prosequi was entered on the three counts on the indictment.
  12. [18]
    In respect of ODL’s complaint the applicant was charged with two counts of indecent dealing with a child under the age of 16. The applicant went to trial on those charges in the District Court in May 2012. He was acquitted of these charges.
  13. [19]
    In the end the applicant has not been convicted of any criminal offences concerning either DOJ or ODL.
  14. [20]
    As a result of all of the information gathered for the purposes of the criminal proceedings insofar as it related to DOJ’s and ODL’s complaints, the Deputy Commissioner decided that disciplinary proceedings should be brought against the applicant which occurred in October 2013. These form the substance of Matter 1 and Matter 3.
  15. [21]
    Matter 4 relates to a breach of bail conditions. After he was committed for trial in respect of the charges relating to DOJ, the applicant was granted bail on his own undertaking with conditions. However whilst on bail he attempted to contact one of the witnesses for the prosecution, in circumstances where the conditions to his bail were that he have no contact with those witnesses. It is alleged he confronted a witness, BBS, in the main street at Yeppoon and was abusive towards her about the fact that she was going to give evidence in the upcoming criminal trial. There is a factual dispute about this allegation.
  16. [22]
    Matter 5 relates to the applicant’s conduct on hearing the jury’s verdict of guilty at the first trial in the District Court. The applicant became very abusive towards the judge, the jury, and the prosecution team. He then jumped out of the dock in the court room and attempted to leave the precinct of the court while still in the custody of the correctional authorities. He was restrained by police officers and then taken to the cells. There is no factual dispute about the applicant’s conduct.
  17. [23]
    In respect of Matter 1 and Matter 2 the applicant has consistently and vehemently denied the specific allegations made against him. He has done this in interviews with the investigating officer, Inspector Sakzewski, in the submissions on his behalf made to the Deputy Commissioner in the disciplinary hearing.
  18. [24]
    It is against this background that the evidence in the transcripts of the criminal proceedings, the statements of evidence procured by the QPS in preparation of the criminal proceedings, and the interviews with Inspector Sakzewski that I must determine whether the allegations in the various Matters have been substantiated.
  19. [25]
    Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Tribunal’s sets out the function of the Tribunal which is to produce the correct and preferable decision on the evidence submitted by both parties.

Standard of proof

  1. [26]
    The misconduct charges brought against the applicant are very serious. Because the applicant was acquitted on some of the charges brought against him both in respect of DOJ and ODL in the criminal proceedings, and convictions entered against DOJ were set aside by the Court of Appeal, does not mean that the charges of official misconduct cannot still be substantiated. Even though a lesser standard of proof applies to that in criminal proceedings which is beyond a reasonable doubt, the Tribunal must still be ‘reasonably satisfied’ that the evidence supports a finding of misconduct in respect to the particular allegation made against the applicant:[2]

The seriousness of allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

  1. [27]
    In other words, the more serious the misconduct alleged and the consequences of an adverse finding, the more onerous is the standard of proof but it never quite reaches the criminal standard.[3]
  2. [28]
    There is one further obstacle in cases such as this where there are direct conflicts in the evidence as to what occurred between the applicant and both DOJ and ODL. There is no conventional trial or hearing to resolve credit issues and no witness sworn or tested to assist the Tribunal. The Tribunal must do the best it can from the material filed in the proceeding,[4] here mainly the transcripts of evidence from the various trials and the interview with the applicant. There is also the assistance gained from the submission of the parties. However, as the onus of proof is on the respondent to substantiate the charges contained in the Matters, if there are any gaps in the evidence against the applicant that is to his advantage.[5]

Matter 1

  1. [29]
    This relates to the allegation of improper conduct between 30 October 2000 and 30 November 2002, a period of nearly two years. That conduct occurred at a time when DOJ was between 14 years and 16 years of age. The particulars provided are as follows:
  • Your residence was at 572 Main Road, Wellington Point.
  • On a date unknown between 12 February 2001 and 31 July 2001 you coerced your son to masturbate you on a bed in his bedroom and you also masturbated your son until he ejaculated.
  • On a date unknown between 30 October 2000 and 22 July 2002 at your residence your coerced your son to masturbate you until you ejaculated.
  1. [30]
    The particulars confine the allegations in Matter 1 to two particular incidents over that period of time. The evidence in support of that has been further particularised by the respondent in the written submissions and include the following:
    1. (a)
      police interview with DOJ on 24 March 2014;
    2. (b)
      statement by DOJ of 6 June 2008;
    3. (c)
      further statement of DOJ in August 2008;
    4. (d)
      statement from AK, Behavioural Management Teacher at the Wellington Point High School;
    5. (e)
      DOJ’s evidence at a committal hearing in July 2010; and
    6. (f)
      DOJ’s evidence at the District Court trial in March 2011.
  2. [31]
    The applicant contends that when consideration is given to the whole of DOJ’s version of events as particularised above, there are so many inconsistencies that the reliability of his assertions are brought in to question to the point where the Tribunal could not be reasonably satisfied that the applicant engaged in the conduct alleged.
  3. [32]
    The allegations about the applicant’s conduct first came to light in 2004 when he was having particular difficulties at school, when AK overhead DOJ using words like ‘Dad is an arse fucker’ or ‘Butt raper’ and then sought to determine what made him use that language. Thereafter, she spoke to DOJ about the sexual abuse perpetrated on him by his father which allegations, not only included his father, but also a cousin and his sister. He informed AK that the sexual abuse occurred between ages 8 and 14. During this time DOJ was self-harming and undergoing professional counselling. The specific allegation that DOJ made about his father was that he was having ‘anal sex with him at the time and DOJ’s head was pushed between the cushions of the lounge at the house where they had lived’.[6] There is however no evidence directly from DOJ to those who interviewed him, or in the trial that the applicant did engage in this behaviour.
  4. [33]
    After the matters were raised with AK, DOJ was then interviewed by police on 24 March 2004. In the interview conducted with Detective Sergeant Carr,[7] DOJ said that he had been sexually assaulted by the applicant. He was asked when this occurred and he said this occurred until he was 13 years of age and it started when he was young. There was some discussion about him telling AK about this at school (he would not go into detail about how the applicant sexually assaulted him).[8] Although DOJ confirmed that he had been sexually assaulted in some way, he did not want to take the matter further or provide the police officer with any detail of the sexual assault. He did indicate, that he would be content to discuss the matter with DD who is a social worker at the Child & Youth Mental Health at Redlands Hospital Cleveland.
  5. [34]
    DD has provided a statement concerning her involvement with DOJ during the period he was at school. She first met him in 2003 because of social problems he was having at school and also there were ongoing matrimonial issues between the applicant and his then wife. She would meet DOJ at school or at his home and try to provide professional help during that period. She noted that he was self-harming in 2004 and was admitted to the Logan Hospital. She was in fact present at the Redlands Hospital when DOJ was interviewed by Detective Carr and confirms that he chose not to provide any details about his father’s sexual assault.
  6. [35]
    AK’s evidence is helpful in terms of giving some further insight into what was going on in DOJ’s life but it is not particularly helpful in corroborating the specifics of the allegations made against the applicant. It is also worth noting that DOJ confided in HM and confirmed that he told the psychologist that his father had molested him.
  7. [36]
    Nothing further happened after the interview with Detective Carr other than DOJ moving to Rockhampton to stay with his father after the final separation.
  8. [37]
    DOJ then made a statement to the police in June 2008 where he was more specific in the history of his relationship with his father and what transpired at the family home at Wellington Point. In that statement he describes what his father did to him and was quite specific in saying that it was not so much what he did to DOJ, but rather it is what DOJ had to do to him. Another comment of note is that DOJ said he had ‘difficulty in wording the things that happened’. In one sense this is not surprising given the fact that he was only in his early teens when these events occurred although the first occasion he speaks of any sexual conduct was when he was 11 years old. In this context, he said in a statement that he would be on his bed and he would have to perform oral sex ‘on Dad’. This was aggressive and violent when it occurred. He then goes on to record in some detail the following:

I remember on the first occasion the sex act finished, he ejaculated and I think on that occasion he ejaculated onto some tissues he brought with him. On other occasions he would ejaculate on my bed or on my hands. He never referred to his penis by name and he never described to me what he wanted done. I do remember that he told me that I was not to tell anyone. This was said by him just say [sic] “You can’t tell anyone”.

  1. [38]
    The statement then goes on to detail generally the relationship he had with his father when at Wellington Point and how things continued during the hostile relationship between his father and his mother after his father was sworn in as a police officer and moved to Rockhampton.
  2. [39]
    At that time, DOJ became aware that his mother was in a relationship with HM and with that, and his father leaving, he said that ‘things were really falling apart at the time’. His father was being highly critical of his mother and her new relationship and it was at this time that he encouraged DOJ to move to Rockhampton.
  3. [40]
    DOJ did move to Rockhampton to stay with his father for a short period of months but after a significant altercation he ran away, contacted his mother and then returned to Brisbane. He has not seen his father since that time.
  4. [41]
    There is a further statement from DOJ made in August 2008 referred to as the Addendum Statement. This statement provides much more detail as to the relationship DOJ had with his father and provides detailed particulars of the sex acts engaged with him. They span a period of years and principally during the period when there was significant tension in the marital relationship. The statement does not provide dates of these various activities however, it is evident that DOJ had difficulty in being precise about those dates, or being comfortable about describing what happened to the police officer, Senior Sergeant Sakzewski who took the statement.
  5. [42]
    I proceed on the assumption that DOJ provided the detail and that was faithfully recorded by Sergeant Sakzewski. This statement, and the earlier June statement really form the basis of DOJ’s evidence at both the committal hearing and the District Court trial. Turning then to the transcript of the committal hearing, DOJ gave evidence about his relationship with his father[9] and about the incident where he suffered a beating from his father at Capella and then the masturbation episode after that. His evidence continued on about the events at Capella and then moved on to what occurred at Wellington Point.[10] He gave specific evidence about an incident where the applicant and his wife were engaged in a very acrimonious dispute in the kitchen, where he called her names and after that, there was a further incident of masturbation and during this, he came back with ‘a towel, tissues, something to, I assume, clean up the mess’. This is somewhat relevant because it is contended that the confusion here impacts his credibility. After that event, DOJ describes his move to Rockhampton after his father was transferred.[11]
  6. [43]
    In the District Court trial, the evidence was of a similar vein[12] where he again described the masturbation episode after the disagreement between the applicant and his wife.
  7. [44]
    What emerges from all of these various statements by DOJ is that there is a consistent theme of physical abuse, which certainly is not part of the particulars of any matter but it is simply a factual history and of course, then there are the episodes of masturbation.
  8. [45]
    The applicant has addressed each of these segments of the evidence to identify inconsistencies which are particularised in detail at paragraph 70 of the written submission. These inconsistencies, it is contended, are so unreliable that having regard to the standard of proof required given the seriousness of the allegations, DOJ’s evidence is not sufficiently credible to make a finding that the conduct of the applicant has been substantiated.
  9. [46]
    What must be borne in mind is that during this period there was significant matrimonial disharmony and these are recollections of a boy caught up in this marital conflict.
  10. [47]
    The criticisms levelled against DOJ’s credibility are numerous and as this forms the basis of the applicant’s case, they must be addressed. It is said that the allegations made were first coerced out of DOJ during a conversation with his step-father, HM. This was at a time in February 2004 where he was self-harming, was having problems at school and because of that there was a suspicion of sexual abuse. He was drawn out by HM as to what was behind the self-harming and sexual abuse allegations and then DOJ volunteered that he had been abused by his father and others.
  11. [48]
    The inconsistencies in his evidence have been addressed and despite a reference to what Justice Chesterman said in the Court of Appeal, and given that the cross-examination occurred many years after the event, and after giving the statements to police, it is understandable that there may be some inconsistencies in his evidence. This does not necessarily mean that DOJ is being untruthful.
  12. [49]
    Similar comments can be made about the inconsistency as to where the particular acts occurred. The fact that the incident in DOJ’s bed was first raised at the trial once again does not destroy DOJ’s credibility. These various acts occurred over some years at Wellington Point and it is understandable that he may be confused as to the particular circumstances of each incident.
  13. [50]
    Confusion about whether tissues or a towel was used or where the seminal fluid was deposited are not factual matters which would be expected to be firmly imprinted in DOJ’s memory after this period of time. I simply do not see that this is a significant issue going to his credibility.
  14. [51]
    There is also the false complaint, it seems, about the applicant attempting to force himself on DOJ when DOJ was face down and his head in the pillow on the couch. There can be no doubt he told AK about this incident and then changed his story. But there is also no doubt that he used the words as she deposes to which raised concerns about the applicant’s conduct in that period of about 2004. The Court of Appeal commented on this inconsistency, however, that was in the context of a criminal prosecution not internal disciplinary proceedings.
  15. [52]
    There are other inconsistencies such as the allegation that the applicant encouraged DOJ to have indecent dealings with his younger sister which, during the District Court trial, he said he would not have said that to AK.
  16. [53]
    The applicant also contends that DOJ’s allegations of sexual abuse by others, including a cousin, grandfather and neighbours, all weakens his evidence because there is no probative evidence to support these allegations. It is also conceded that in the family environment at that time there was significant and ongoing conflict between the applicant and his wife and DOJ’s developed an inherent dislike for the applicant and that these allegations were a result of the troubled environment. The applicant relies on what Justice Chesterman said in the Court of Appeal that those events may well have translated into motives for punishing the applicant. This is certainly a matter worthy of consideration in the overall context of this matter.
  17. [54]
    The applicant relies on DOJ’s failure to make complaint of the applicant’s conduct much earlier than he did. The first complaint was made in 2004 but lacked particulars which did not allow the police to advance the investigation. DOJ was 16 years old. However, there were other statements to various people including AK and ultimately HM. Also in a roundabout way to Sgt Carr. Although no action was taken in the early days, these were clear red flags indicating that something untoward was going on in the DO household and as I have said above, and repeat, DOJ’s allegations against his father in the broader context, have been consistent and ongoing.
  18. [55]
    The applicant relies on the failure to tell Dr Allman at the Princes Charles Hospital in 2003 during a lengthy consultation. However this is consistent with the interview with Sgt Carr which was at a time when he was reluctant to discuss details of the sexual abuse and it would seem the focus was on his parents’ separation.
  19. [56]
    There is no direct corroboration for DOJ’s allegations. However, given the circumstances that pertained at the time of these events, and DOJ’s age, that is not surprising if DOJ’s evidence is accepted about the overall relationship, which I do. The applicant was in a position of influence and dominance over DOJ in his formative years. Even accepting the generality of the description of the relationship between DOJ and his father, the applicant’s behaviour towards DOJ started when he was about 11 or 12 years of age in circumstances of the matrimonial disputation. One wonders whether there was in fact anyone that DOJ could turn to for support.
  20. [57]
    I am therefore satisfied to the requisite standard that as the incidents as alleged occurred, Matter 1 is substantiated.

Matter 3

  1. [58]
    Matter 3 relates to the indecent assault on ODL who, at the relevant time, was under the age of 16 years. The particulars provided in respect of that allegation are as follows:
  • During the school holidays at Easter, July and Christmas 2003, your then 12 year old daughter ODL visited you and stayed in your residence.
  • During the school holidays associated with Easter 2003 you entered your daughter’s room, removed her nightdress and used your hand to rub her back telling her not to tell anyone.
  • During the school holidays associated with September and October 2003 you entered your daughter’s room, removed her clothing and licked her back, stomach and around her vagina.
  • During the school holidays associated with Christmas 2003, you entered your daughter’s room naked, removed her nighty and underwear and inserted a finger or fingers inside her vagina.
  1. [59]
    The respondent’s position is generally that the Deputy Commissioner considered all of the material and he was entitled to bring his own experience and expertise to bear, not only as the decision maker but a police officer of many years’ experience to conclude that the allegations against the applicant were substantiated. The respondent relies on Aldrich v Ross in support of this position. Even though I should have regard to the Deputy Commissioners experience and expertise, I must still approach the consideration of the allegations afresh to determine whether I am reasonably satisfied that the applicant engaged in the alleged conduct.
  2. [60]
    The particulars of Matter 3 centres events which occurred specifically in 2003 and perhaps a 2004. The evidence relied on by the respondent is that which was given by ODL at the applicant’s District Court trial. She was subjected to cross-examination and despite the verdict of not guilty, because a different standard of proof applies here at this time I should still find the allegations are substantiated.
  3. [61]
    If I were to accept ODL’s evidence without reservation then clearly the allegations would be substantiated. However, there are other matters to consider in weighing up the probity of her evidence. The applicant contends that when her evidence is examined, there are so many inconsistencies, that the Tribunal could not be reasonably satisfied that these events took place.
  4. [62]
    The applicant’s submission is put thus:

The officer submits that ODL’s evidence relevant to Matter 3 is unreliable and entirely insufficient to discharge the Deputy Commissioner’s onus of proof. This is significant, because ODL’s evidence is the only evidence against the officer in respect of Matter 3. There is no other witnesses who claims to have any direct knowledge of any of the facts that comprise Matter 3, so the allegation stands and falls upon the reliability of ODL’s evidence.

  1. [63]
    The applicant, in both written and oral submissions, sought to highlight those matters of concern which impact upon ODL’s overall credit.
  2. [64]
    On one view it would appear the first time ODL mentioned that the applicant had touched her was when she had a conversation with BBS in, it would seem, 2007. This was after BBS had broken off the relationship with the applicant. The other view is that it was after this when ODL made her initial complaint to police which was followed up with her formal statement to police in May 2008. She was then 17 years of age.
  3. [65]
    In that statement she describes in some detail each of the incidents that occurred when she went to visit her father at Yeppoon. The first incident was at Easter in 2002. Then the second incident in July 2002 and the third during the 2002 Christmas holidays. At those times, ODL was 12 years old. These incidents form the basis of the particulars of the allegations against the applicant. However, in the particulars provided there seems to be some inconsistency about the exact time period of these events. In her statement ODL says the second incident occurred in, she thinks, July 2002 when the applicant removed her nightdress to massage her back and then massaged her front. Given the timeframe over which these incidents occurred, means this discrepancy is not significant.
  4. [66]
    ODL then records what occurred with the third incident during the 2002 Christmas holidays when, the applicant came into her bedroom at night removed her clothing and then started to digitally penetrate her for some time. ODL said in her statement, that she had ‘never told any other person about the things that were committed upon me by my father and everything [she has] said is from memory’.
  5. [67]
    The last statement is in direct conflict with BBS’s evidence that she had a conversation about the ‘touching her’ before she made any complaint to the police. She continued to maintain this position. Is obviously concerning that ODL left it some 4-5 years after these incidents occurred before she told anyone about what occurred to her in 2002. The respondent has not specifically addressed these concerns in the written submission but merely relies on the totality of the evidence to substantiate the allegations.
  6. [68]
    The applicant, in the written submissions, highlights the various inconsistencies between what ODL has said in the statement and her evidence in the committal proceedings and the trial. I am obviously conscious of the fact that ODL has had to recall the circumstances of these incident a number of times during this whole process and one cannot expect her evidence to be exactly the same when recalling events many years before, particularly in circumstances where she was caught up in the acrimonious matrimonial dispute between her parents. However, there must be consistency in at least the basic relevant facts giving rise to the allegations. The applicant’s criticism of ODL’s evidence is set out in paragraph 94 of the written submissions.
  7. [69]
    The main and probably the most important criticism of ODL’s allegation is her own admission that she failed to tell anyone about the applicant’s conduct prior to 2008, on one view to BBS and on another view to the police. It does not seem to be contested that the first official complaint was made in mid-2008. At this time ODL was 18 years old. Importantly, it is submitted ODL had a number of opportunities to bring the applicant’s conduct to her mother’s attention well before 2008. In addition, there were other interventions by responsible third parties where it might be expected that she would make mention of what happened to her.
  8. [70]
    The applicant points to the following situations where one would normally expect ODL raise the issue of applicant’s conduct:
    1. (a)
      ODL attended upon a number of medical practitioners concerning behavioural issues and symptoms of depression. These included BSD and DD who were connected with the Wellington Point Youth Mental Health Services where they interviewed ODL in 2004 but did not mention the applicant’s conduct.
    2. (b)
      TD, psychiatrist, treated ODL for depression between August 1998 and April 2008. One could reasonably expect that during the course of his treatment he would have elicited information about her personal circumstances which would be relevant to her mental state, however, there was no disclosure about sexual abuse.[13]
    3. (c)
      There was also the intervention of the Family Court counsellor during the matrimonial dispute in 2005. Again one could reasonably expect that in any disputation about contact with her father, the matter of sexual abuse would be raised however from ODL’s own admission it was not.[14]
  9. [71]
    Not only was there a failure to disclose the sexual abuse alleged, it went further because there were a number of occasions where ODL actually denied that her father had abused her when questions were specifically put to her. This occurred in a conversation with the Youth Mental Health Services referred to above and also to the Family Court counsellor. In her evidence in the District Court, on this particular topic the following exchanged occurred between ODL and Counsel for the applicant:

See, this is what you said to the counsellor, that she had hurt her shoulder while on contact – you had hurt your shoulder while on contact and your father had massaged your shoulders down around your arm bits but was very clear he did not fondle your breasts. That’s what you said to the court officer, the officer who had to report back to the court? – Yes.

  1. [72]
    If ever there was an opportunity to explain what she contends the applicant did to her in the three particularised incidents then that was certainly it.[15] In addition to that, ODL told her mother that she would take physical action against the applicant if he were to inappropriately touch her, although I do not place too much weight on this comment.
  2. [73]
    There are demonstrated inconsistencies in ODL’s evidence. During the committal hearing that she and DOJ had discussed the sexual abuse and she said to him that she also had been sexually abused. She then went onto say that they then made a pact to make sure the applicant was put away and never see him again. In a further interview with the police she denied telling DOJ about the abuse and then admitted that this statement to the police was not true. It would seem from this that ODL was willing to put forward whatever version of events suited her at the time. It is also submitted that this is a motive for making the allegations.
  3. [74]
    Another inconsistency is that after the Christmas 2003 she said that was the last time she saw her father which was clearly not the case. She did visit her father around Easter 2005 and when this was put to her at the trial, she chose not to tell the jury about this trip because it would ‘reflect badly on her’. This has further implications because despite her concerns about everything that had occurred she was content to visit him in 2005 even though she said she was concerned that she might expose her sister to the applicant’s conduct.
  4. [75]
    Then there is the objective evidence of the Family Court Counsellor who did not detect any resistance on the part of ODL to engage with her father prior to the interview for the preparation of the Family Report. The counsellor observed there was affection and positive interaction between ODL and her father. Given what is alleged against him, such a behaviour would be unexpected.
  5. [76]
    There is of course the other observation that can be made similar to what was going on in DOJ’s life, in that ODL was in the middle of an acrimonious matrimonial dispute between her mother and father and was having difficulties for which she was being treated. These included depression and abnormal behaviour resulting in her harming herself. This may account for the inconsistencies.
  6. [77]
    The absence of any disclosure whatsoever by ODL about any inappropriate conduct between 2004 and 2008 in circumstances where ODL had multiple opportunities to say something about the applicant is troublesome. It may well be that she decided to keep it all to herself and bottled up but, particularly when she was being interviewed for the purposes of the Family Report one would expect that she would allude to at least some behaviour on the part of the applicant which would give rise to suspicion. There was none until she made her statement in 2008.
  7. [78]
    There is also ODS’s evidence which is limited in corroboration as it only goes to the fact that the applicant did massage ODL’s back and ‘massaged her front while she lay in the same position’ on her back. In fact ODS, who was still of a tender age, ‘did not think anything of it’. In terms of any corroboration that is about as high as it gets.
  8. [79]
    I have grave concerns as to where the truth lies here. The applicant’s counsel has articulated, in a thoughtful and methodical way, the discrepancies in ODL’s evidence in the written submission which are all supported by references to the source material. Having regard to the seriousness of these allegations against the applicant and the standard of proof, I cannot be reasonably satisfied that ODL’s evidence alone supports the conclusion that the applicant did engage in the conduct alleged in Matter 3. I therefore find that Matter 3 has not been substantiated.

Matter 4

  1. [80]
    The particulars of Matter 4 are that:
  • On 27 March 2009 you were arrested and charged with a number of criminal offences;
  • You were released on bail with conditions that you have no contact directly or indirectly with witnesses, including BBS;
  • You subsequently had contact with BBS on 30 March 2009 (sic: 2010) in James Street, Yeppoon and abused her and threatened her; and
  • BBS was frightened and reported the matter to police.
  1. [81]
    There is no dispute that the applicant and BBS did accidentally come across each other in Yeppoon at the relevant time. What is disputed is that the applicant made any threat or comment to BBS of the type alleged in her statement.
  2. [82]
    It is alleged that the applicant confronted BBS and threatened her with abusive language saying words:

You fucking cunt. I’m going to fucking get you, you fucking cunt. You’re badmouthing my name, you fucking cunt, I’m going to get you.

  1. [83]
    The allegation is specifically denied by the applicant and he further denies that he continued to yell at her as she ran to her motorcycle to get away from him. After the event, the applicant went into the nearby newsagency.
  2. [84]
    BBS made an immediate complaint to the police, who investigated, detained the applicant, returned him to Court and his bail was revoked.
  3. [85]
    Sergeant Carroll was detailed to investigate the incident because it involved a breach of bail. Although the Magistrates Court was content to accept the facts of the applicant’s conduct in revoking his bail, I must consider the evidence afresh to determine if the allegation is substantiated.
  4. [86]
    Sergeant Carroll interviewed a number of witnesses in the vicinity of the altercation and in particular, FK. She worked in the newsagency that the applicant went into and stated that she did not hear any argument or abusive comments but conceded that BBS did go to the shop subsequently and complain about the altercation and seemed upset.
  5. [87]
    Although Sergeant Carol interviewed other witnesses including CL from Carmel’s Creations, Gifts and Home Daycare, the manager of the Capricorn Credit Union, and BK of Raine & Horne Real Estate, there was no direct evidence corroborating BBS’s statement.
  6. [88]
    It would be quite extraordinary for her to raise such a serious allegation without any substance to it. I also observe that the applicant’s reaction, on seeing BBS (according to her) is consistent with his behaviour when he was convicted of the indecent dealing charges involving DOJ. Furthermore, in view of my findings about the applicant’s overall credibility, in so far it was relating to DOJ, I am prepared to accept BBS’s evidence on this point in preference to the applicant’s.
  7. [89]
    In the end I am reasonably satisfied that that Matter 4 has been substantiated.

Matter 5

  1. [90]
    The particulars of Matter 5 are that:
  • On 23 March 2011 at Rockhampton your conduct was improper in that whilst suspended from the QPS and within the Rockhampton District Court you:
    • used inappropriate and offensive language;
    • attempted to leave the precinct of the Court without authority; and
    • inappropriately applied force against a police officer.
  1. [91]
    The allegations concern the applicant’s conduct upon the jury delivering its verdict of guilty in respect of some of the indecent dealing charges involving DOJ at the District Court trial. There is no dispute that the applicant engaged in the conduct complained of, but it is contended that his conduct does not fall within the definition of ‘misconduct’ as defined in the Police Service Administration Act 1990 (Qld) (‘Police Act’). He was later charged with obstructing police to which he pleaded guilty and was fined $400. The meaning of misconduct is defined in s.1.4 of the Police Act as follows:

Misconduct means conduct that –

  1. is disgraceful, improper or unbecoming an officer; or
  2. shows unfitness to be or continue as a police officer; or
  3. does not meet the standard of conduct the community reasonably expects of a police officer.
  1. [92]
    There have been various statements as to the meaning of misconduct and its application in particular circumstances. Justice Carmody, in Hollands v Tolsher,[16] said that misconduct means more than ‘mere impropriety, performance efficiencies or misjudgements.’ He relied on what the Court of Appeal said in Deputy Commissioner Stewart v Dark:[17]

The nature of the act and the circumstances in which it took place must be considered with a view to determining whether the conduct reveals such a lack of integrity or want of character as to substantially erode the trust and confidence that the officer’s colleagues and/or the members of the public are entitled to repose in him or her.

  1. [93]
    The important feature in this case is that the applicant was not ignorant of the processes or procedures of a criminal trial. He was aware that the jury would either return a verdict of guilty or not guilty on one or more of the counts upon which he stood trial. One can readily accept that the guilty verdict may well have come as a severe shock to him but that does not excuse him or any other member of the public who is in the criminal justice system to behave in the way that he did. He of all people knew that the delivery of the jury verdict was solemn process and deserved respect.
  2. [94]
    Furthermore, the jury are members of the public, fulfilling a public duty which is vital to the criminal justice system and do not need to be unnecessarily exposed to the type of behaviour the applicant engaged in when delivering their guilty verdict on three counts. He used obscene language to a presiding judge, not attacking him personally, but asserting that the jury had got it wrong, saying it was all ‘bullshit’, and ‘unjust’. He then climbed over the Perspex barrier and started to walk out of the courtroom struggling with police officers.
  3. [95]
    The applicant submits that at the time of these events he was in an extremely distressed state, had been suffering from post-traumatic stress disorder arising out of work activities and the overall stress and pressure he had been under in recent years because of the allegations made against him.
  4. [96]
    Finally, the respondent submits that:

When the full circumstances in which the conduct took place are considered, the admitted conduct was not “so” morally and socially blameworthy, that nothing short of misconduct finding is called for. The community would understand that the officer’s conduct was out of character and an aberration arising from extraordinary circumstances.

  1. [97]
    I am afraid I cannot agree with this submission. The applicant had been involved in the Court process from the day he was charged, through the committal hearing, to the trial and knew full well that a guilty verdict was an option that was open to the jury. This is particularly relevant, given his occupation as a police officer. I conclude that even though there is an acceptance that the conduct has been substantiated, it clearly falls within the definition of misconduct; it is unbecoming of an officer to behave in this way even in these circumstances, and certainly,does not meet the conduct the community reasonably expects of a police officer. I therefore find that in Matter 5 the charge of misconduct has been substantiated.

Matter 2

  1. [98]
    I have left this to last because the Tribunal has already declared that the Deputy Commissioner had no power to consider or determine this allegation. As submitted there will be a finding, for completeness that this allegation has not been substantiated.[18]

Sanction

  1. [99]
    The Deputy Commissioner, accepting that all matters had been substantiated, imposed a sanction of dismissal from the QPS. Although I have found that one of the matters was not substantiated, that is the allegations in respect of the sexual abuse upon ODL, the Matters that have been substantiated are so serious that they do not warrant a lesser sanction than dismissal from the QPS. In coming to this conclusion I also have regard to the to the Deputy Commissioner’s expertise and experience in the administration of the QPS in line with what was said in Aldrich v Ross.[19]

Summary

  1. [100]
    Therefore, I find that Matters 1, 3, 4 and 5 have been substantiated. Matter 3 has not been substantiated.
  2. [101]
    I also uphold the sanction imposed by the Deputy Commissioner.
  3. [102]
    Finally, the Tribunal expresses its gratitude to the thorough and comprehensive submissions prepared by counsel for the applicant which were of great assistance in preparing these reasons.

Footnotes

[1]  HS later remarried.

[2]Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

[3]  JRS Forbes, Justice in Tribunals (Federation Press, 3rd ed, 2010), 192.

[4] Crime and Misconduct Commission v Deputy Commissioner & Chapman [2010] QCAT 564.

[5] Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348.

[6]  Section 21 Documents, page 347.

[7]  Section 21 Documents, B1.

[8]  Section 21 Documents, B36.

[9]  Section 22 Documents, page 806.

[10]  T22, 809.

[11]  T22, 815.

[12]  Section 22 Documents, page 1139-1140.

[13]  Section 21 material, Vol 1, page 273.

[14]  Section 21 material, Vol 4, page 1608.

[15]  Section 21 material, Vol 4, page 1614.

[16]  [2016] QCATA 123.

[17]  [2012] QCA 228.

[18]  Applicant’s submission, paragraph 77.

[19]  [2001] 2 Qd R 235.

Close

Editorial Notes

  • Published Case Name:

    ODM v Deputy Commissioner Steven Gollschewski

  • Shortened Case Name:

    ODM v Deputy Commissioner Gollschewski

  • MNC:

    [2019] QCAT 306

  • Court:

    QCAT

  • Judge(s):

    Member Oliver

  • Date:

    11 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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