Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Flanagan v Gee

 

[2020] QCAT 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Flanagan v Gee & Anor [2020] QCAT 36

PARTIES:

senior Constable Stephen Flanagan

(applicant)

 

v

 

Deputy Commissioner Bob Gee

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

OCR 310-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 February 2020

HEARING DATE:

29 July 2019

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

The decision of Deputy Commissioner Bob Gee made on 6 November 2018 (being a disciplinary declaration pursuant to Part 7A of the Police Service Administration Act 1990 that if Senior Constable Stephen Flanagan had remained employed with the Queensland Police Service the sanction of dismissal from the Queensland Police Service would have been imposed) is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where a police officer pointed a firearm at a citizen, used coarse language, and handcuffed the citizen in the course of a road traffic interception – where the police officer was convicted of assault and deprivation of liberty – where a disciplinary declaration as to dismissal was made by a Deputy Commissioner of the Queensland Police Service after a police officer had resigned – whether dismissal is the appropriate sanction – whether a suspended sanction could be imposed

Police Service Administration Act 1990 (Qld), Part 7A.2, Part 7A.2(3)(a), Part 7A.2(3)(b)

Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld), s 11

Police Service (Discipline) Regulations 1990 (Qld), s 5

Austin v Deputy Commissioner Peter Martin [2018] QCAT 120

Commissioner of Police v Flanagan [2018] QCA 109

Crime and Corruption Commission v Queensland Police Service and Anor [2015] QCATA 15

Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No. 1 of 2003

Police Service Board v Morris (1985) 156 CLR 397

Quinn v Law Institute of Victoria Limited [2007] VSCA 122

R v Gooder [2009] QCA 377

R v Price ex parte A-G [2011] QCA 87

R v Tsiaris [1996] 1 VR 398

R v Yarwood [2011] QCA 367

APPEARANCES &

REPRESENTATION:

 

Applicant:

Gnech and Associates, Solicitors

First Respondent:

Queensland Police Service

Second Respondent:

Crime and Corruption Commission

REASONS FOR DECISION

  1. [1]
    Mr Flanagan was an officer with the Queensland Police Service (‘QPS’) from 13 November 1989 until his resignation on 29 June 2018, at which time he held the rank of Senior Constable.
  2. [2]
    Subsequent to his resignation, Deputy Commissioner Gee (‘the Deputy Commissioner’) made a disciplinary declaration on 6 November 2018 as follows:[1]

Therefore, pursuant to the Police Service Administration Act 1990 and the Police Service (Discipline) Regulations 1990 and having regard to the purpose of discipline, the interests of the Service and the interest of the community in general, I make the following disciplinary declaration against you pursuant to Part 7A of the Police Service Administration Act 1990 that if you had remained employed with the Queensland Police Service the below sanction would have been imposed:

Ground One (a), (b) and (c)

Dismissal from the Queensland Police Service

(Pursuant to Section 5 of the Police Service (Discipline) Regulations 1990

  1. [3]
    Mr Flanagan filed an application to review the disciplinary declaration on 27 November 2018.
  2. [4]
    The Crime and Corruption Commission (‘the Commission’) filed an application to be joined to the proceeding on 19 December 2018, and the Tribunal ordered on 18 February 2019 that the Commission be joined as a party to the proceeding.
  3. [5]
    The matter was heard by an oral hearing before me on 29 July 2019.
  4. [6]
    In the course of the hearing, a question of law arose as to whether, if the Tribunal found that an appropriate sanction would be that Mr Flanagan’s employment be terminated or that he be reduced in rank, but that such sanction should be wholly suspended for a period of time on certain conditions, whether that finding would constitute a ‘termination of employment’ or ‘reduction of rank’ within the meaning of those terms in s 7A.2(3)(a) and  s 7A.2(3)(b) of the Police Service Administration Act 1990 (Qld) (‘PSAA’).
  5. [7]
    I gave directions for the filing of further submissions by the parties in relation to the question of law.
  6. [8]
    Submissions were filed by the parties in relation to the Application to Review, and the question of law.
  7. [9]
    This is the decision in relation to the Application to Review, having regard to the question of law which was raised.

History of the matter

  1. [10]
    The disciplinary proceedings resulted from events which occurred at Longreach in Queensland.
  2. [11]
    At about 8.00am on 5 May 2015, Mr Flanagan was performing a single officer patrol whilst driving a police vehicle. He detected a Holden Colorado utility exceeding the speed limit on the Landsborough Highway, near Longreach. He performed a U-turn, pursued the utility, and detained the driver. The driver of the utility was Mr Povey.
  3. [12]
    Disciplinary Ground One, which consisted of three subparagraphs, was subsequently brought against Mr Flanagan in relation to the events of that morning. Ground One was as follows:

Ground One

On 5 May 2015 at Longreach your conduct was improper in that you:

  1. (a)applied excessive force to the person of Mr Lee Povey;
  1. (b) failed to treat Mr Lee Povey with respect and dignity;
  1. (c)inappropriately detained Mr Lee Povey
  1. [13]
    Further and Better Particulars of Ground One were set out in the Findings and Reasons of the disciplinary declaration, and alleged as follows:

In relation to ground one (a)

  • You performed a U-turn to intercept this vehicle
  • after catching up to the vehicle you activated the police vehicle horn numerous times, crossed onto the incorrect side of the road and drove up beside the vehicle, before the vehicle pulled over to the side of the road;
  • you exited your vehicle and approached the Colorado with your firearm drawn and pointed at Mr Povey;
  • during your approach you said words to the effect:

‘Get out of your fucking car now. I could put a hole in you. Get out of your fucking car.’

  • After Mr Povey exited his vehicle, you pressed the barrel of your firearm into his back and handcuffed him.

In relation to ground one (b)

  • during your conversation with Mr Povey you made inappropriate remarks and comments of a threatening nature, namely:

‘What the fuck are you pulling here today?’

‘What is your fucking story?’ and

‘Where’s your license, dickhead?’

In relation to ground one (c)

  • you handcuffed Mr Povey and he remained handcuffed for approximately 15 minutes while you wrote him an infringement notice for speeding;
  • at no time did you indicate to Mr Povey he was under arrest or explained to him why he was handcuffed;
  • after completing the infringement notice, you uncuffed Mr Povey, issued the infringement notice and submitted him to a random breath test before allowing him to leave.
  1. [14]
    Prior to the making of the disciplinary decision, a number of other steps and procedures were conducted in relation to Mr Flanagan. These are set out in his submissions as follows:[2]
    1. (a)
      On 22 May 2015 he was stood down from duty by the QPS;
    2. (b)
      On 15 January 2016 he was issued with a notice to appear in court for an offence of common assault (s 335 Criminal Code) and an offence of deprivation of liberty (s 355 Criminal Code);
    3. (c)
      On 15 January 2016 he was suspended from duty by the QPS with salary;
    4. (d)
      On 4 February 2016 he was suspended without salary by the QPS;
    5. (e)
      On 20 December 2016 in the Brisbane Magistrates Court he was convicted after summary trial for the offences of common assault and deprivation of liberty;
    6. (f)
      On 10 February 2017 he was sentenced receiving a $1,500.00 fine and no conviction being recorded.
    7. (g)
      On 21 June 2017 Her Honour Judge Ryrie, (of the District Court), on appeal, set aside the verdicts of the Magistrates Court and returned the matter for retrial;
    8. (h)
      On 5 June 2018, on appeal to the Court of Appeal, the decision of the District Court was set aside, and the convictions imposed by the Magistrate were reinstated[3];
    9. (i)
      On 29 June 2018 he resigned from the QPS;
    10. (j)
      On 6 November 2018 the QPS made a disciplinary declaration against him;
    11. (k)
      On 11 January 2019 he had his work cover claim for psychological injury accepted.

Statutory provisions

  1. [15]
    The decision of the Deputy Commissioner was made pursuant to Part 7A.2 of the PSAA which provided, as at the date of the decision on 6 November 2018, as follows:

7A.2 Disciplinary action that may be taken against a former officer

  1. (1)The commissioner may make a disciplinary finding and take disciplinary action against the former officer.
  1. (2) In disciplining the former officer, the commissioner may make a disciplinary declaration and may not take any other disciplinary action.
  1. (3)The commissioner may only make a disciplinary declaration if the disciplinary action that would have been taken against the former officer if the former officer’s employment had not ended would have been—
  1. (a)termination of employment; or
  1. (b)reduction of rank.
  1. (4)The making of a disciplinary declaration against a former officer does not affect the way in which the former officer’s employment ends, or any benefits, rights or liabilities arising because the employment ends.
  1. (5) In this section—

disciplinary declaration means a declaration of—

  1. (a)a disciplinary finding against the former officer; and
  1. (b)the disciplinary action that would have been taken against the officer under section 7.4(3) if the former officer’s employment had not ended.
  1. [16]
    That section was amended on 30 October 2019[4] by inserting a new s 7A.2 (3)(a) and (b), and currently provides as follows:

      Disciplinary action that may be taken against a former officer

  1. (1)The commissioner may make a disciplinary finding and take disciplinary action against the former officer.
  1. (2)In disciplining the former officer, the commissioner may make a disciplinary declaration and may not take any other disciplinary action.
  1. (3)The commissioner may only make a disciplinary declaration if the disciplinary action that would have been taken against the former officer if the former officer’s employment had not ended would have been—
  1. (a)dismissal; or
  1. (b)suspension from duty without pay for at least 3 months; or
  1. (c)probation; or
  1. (d)demotion, whether permanently or for a stated period.
  1. (4)The making of a disciplinary declaration against a former officer does not affect the way in which the former officer’s employment ends, or any benefits, rights or liabilities arising because the employment ends.
  1. (5) In this section—

disciplinary declaration means a declaration of—

  1. (a)a disciplinary finding against the former officer; and
  1. (b) the disciplinary action that would have been taken against the officer under part 7 if the former officer’s employment had not ended.

Submissions of Mr Flanagan as to sanction generally

  1. [17]
    A Notice of Contentions was filed by Mr Flanagan together with the application to review a decision, as follows:[5]
  1. The (Deputy Commissioner) erred by determining had the applicant remained a sworn member of the Service a sanction of dismissal (and therefore a demotion) would have been imposed because:
  1. Insufficient weight was placed upon the effect mental health issues have on a disciplinary sanction when the mental health issues are the significant causal factor for the commission of the offending conduct. In this regard, specifically:
  1. Specific deterrence should have been eliminated or significantly ameliorated; and
  2. General deterrence should have been eliminated or significantly ameliorated; and
  3. The moral culpability attached to the offending conduct should have been eliminated or significantly ameliorated.
  4. Insufficient weight was placed upon the fact the causal factor for the applicants mental health diagnosis was directly because of events experienced in the line of duty during a 2018 policing career.
  1. Insufficient weight was placed upon the relevant mitigating factors;
  1. Insufficient weight was placed upon the negligence of the Queensland Police Service by moving the applicant to a one-man station contrary to an Ethical Standards Command early intervention notification.
  1. The (Deputy Commissioner) erred by exercising his discretion to order a post separation disciplinary declaration because such a declaration was not warranted in the circumstances because:
  1. of the applicants mental health diagnosis being the significant causal factor for the offending conduct and that mental health diagnosis being caused by events experienced in the line of duty during a 28 year policing career; and
  1. the new police discipline system required an initial decision to be made deciding if discipline is ‘warranted’; and
  1. The (Deputy Commissioner) erred in ordering a post separation disciplinary declaration because it was not the correct and preferable decision in all of the circumstances.
  1. The (Deputy Commissioner) erred by exercising his discretion to order a post separation disciplinary declaration because such a declaration was not warranted in the circumstances because:
  1. [18]
    In his submissions Mr Flanagan sought to add a further ground to Ground 2(b), which he submitted remained consistent:

The sanction imposed does not adopt the principles of the new police discipline system; and

  1. [19]
    Mr Flanagan’s history with the Police Service, prior to the incident in question, is set out in his submission as follows:[6]
  1. (Mr Flanagan) was born on 13 March 1970;
  1. (Mr Flanagan) commenced with the Queensland Police Service on 13 November 1989 (19 years of age);
  1. In 1996, a Constable with seven years service, (Mr Flanagan) was disciplined and reprimanded by the QPS for proceeding to a Priority Code 2 task and failing to comply with his driver’s responsibilities as required by him as a serving member of the Queensland Police Service;
  1. (Mr Flanagan) was promoted to the rank of Senior Constable on 1 July 2000;
  1. In August 2006 (Mr Flanagan) was identified by the QPS as a medium risk and early notification advice was forwarded to the local Professional Practice Manager – no remedial or retraining steps were taken by the QPS at this time. (Mr Flanagan) was not advised of the identified risk;
  1. In October 2013 (Mr Flanagan) was identified as a risk and advice was forwarded to the Assistant Commissioner. (Mr Flanagan) was stood down from duty and put on extended supervision and no contact with the public. (Mr Flanagan) was again not advised of the identified risk or any remedial or retraining steps taken;
  1. In 2015 (Mr Flanagan) was disciplined by the QPS, found guilty of misconduct and fined two penalty units. The conduct related to was unprofessional and rude toward a member of the public and explicitly threatened a member of the public;
  1. As a result of the above investigation, the QPS formally identified a risk for (Mr Flanagan) to work unsupervised. (Mr Flanagan) was never made aware of the recommendation. (Mr Flanagan) was again (not) provided any remedial (sic) or retraining;
  1. On 7 March 2015 (Mr Flanagan) was promoted by the QPS to Senior Constable Officer in Charge (at) Ilfracombe, a single officer station. The QPS did not adhere to their own recommendation that (Mr Flanagan) not work unsupervised.
  1. Mr Flanagan’s service as a police officer included career postings to:
  1. Townsville
  2. Ayr
  3. Broadbeach
  4. Southport
  5. Gold Coast District Traffic Branch
  6. Gold Coast District Training Office
  7. Surfers Paradise
  8. Mossman
  9. Brisbane City
  10. Fortitude Valley
  11. Coomera
  12. Coomera District Traffic Branch
  13. Ilfracombe
  14. Dalby
  1. [20]
    Mr Flanagan submits that had he remained in the QPS, that he would not have been dismissed or demoted on the basis of the medical evidence and the new police discipline system:[7]

16. It is submitted that the imposition of a sanction of dismissal or demotion would have been unsustainable in these circumstances.

It is submitted, had the applicant continued in the Queensland Police Service he would not have been disciplined on the basis of the medical evidence and the objectives and purposes of the new police discipline system.

It is submitted the applicant would have faced medical retirement proceedings pursuant to section 8.3 Police Service Administration Act and likely have been transitioned into a civilian position.

It is submitted that with the QPS’s purported new and modernised attitude towards officers who suffer mental health issues, welfare and supportive strategies would have been implemented rather than disciplinary processes.

  1. [21]
    The submissions for Mr Flanagan refer to the evidence of Dr James Dodds, Psychiatrist, which is said to be uncontested, and to identify his mental health diagnosis as the significant causal factor for the offending conduct, and identify clinical findings in relation to Mr Flanagan as follows:[8]
  1. Was suffering from chronic Post- Traumatic Stress Disorder (PTSD);
  2. The diagnosis is difficult to pinpoint in regards to exact commencement date however (Mr Flanagan) appeared to be suffering PTSD for a few years;
  3. Was not aware he was suffering PTSD;
  4. There is a general tendency in the police culture to deny their own welfare and ignore their suffering (in order to function in what can be extreme circumstances);
  5. (Mr Flanagan) had, within this culture, not realised he needed psychological intervention;
  6. (Mr Flanagan) reported flashbacks, nightmares, adrenaline rush, panic anxiety, anger and marked hypervigilance;
  7. The latter (hypervigilance) represented a much heightened awareness of and reaction to danger and this had been especially prevalent to (Mr Flanagan’s) condition;
  8. (Mr Flanagan’s) conduct on 5 May 2015 had been strongly influenced by PTSD;
  9. Importantly, (Mr Flanagan’s) long career as a police officer, and the trauma he has experienced in the line of duty, has been the sole reason he has developed PTSD;
  10. Significantly, Dr Dodds opined that (Mr Flanagan’s) then unknown and untreated diagnosis was the significant causal factor for his otherwise entirely out of character offending behaviour;
  11. Dr Dodds further opined (Mr Flanagan) after treatment was very unlikely to re-offend in the future.
  1. [22]
    It was submitted that, ‘given the uncontested evidence of Dr Dodds, the moral culpability of (Mr Flanagan) has been significantly reduced as with the need for denunciation. It is submitted the need for general and specific deterrence were eliminated in this case’.[9]
  2. [23]
    It was submitted that Mr Flanagan was deeply remorseful and that the QPS accepted that submission in its reasons.[10]
  3. [24]
    The submissions referred to the new police disciplinary system which was introduced on 1 July 2018 after agreement between the Commissioner of Police, Chair of the Crime and Corruption Commission, and Presidents of both police unions.
  4. [25]
    It was submitted that the new system involved principles including ‘providing appropriate training and guidance to officers whose conduct has come into question due to an identified underlying issue’, and that it had not been demonstrated that discipline of Mr Flanagan was even warranted in the circumstances, having regard to those principles.[11]
  5. [26]
    The submissions referred to the discretionary power of the Tribunal to make a decision as to dismissal or demotion, and submitted that power should not be exercised in this matter.

Submissions of the Deputy Commissioner as to sanction generally

  1. [27]
    The Deputy Commissioner submits that the overriding principle guiding the Tribunal in reviewing a sanction is the protection of the public, the maintenance of confidence in the service, and the maintenance of integrity and performance of police duties.[12]
  2. [28]
    The Deputy Commissioner notes that Mr Flanagan accepted the conduct, and that it amounted to misconduct in the proceedings before him, and submits that it appears that Mr Flanagan only takes issue with the making of the disciplinary declaration that he would have been dismissed from the service.[13]
  3. [29]
    The Deputy Commissioner does not accept that the service did not provide any remedial or retraining steps to Mr Flanagan with respect to his identification as a risk, and submits that no source documents supporting these assertions were before him or are before the Tribunal.[14]
  4. [30]
    The Deputy Commissioner disputes Mr Flanagan’s submission that the video footage of the matter would allow the Tribunal to conclude that there was an identifiable concern for (Mr Flanagan), given ‘the bizarre conduct of the driver’ and that ’the applicants hypervigilance caused by undiagnosed PTSD was then the significant causal factor to his overreaction’,[15] and submits that the video footage does not support that conclusion, referring to the Magistrates findings in the hearing of charges against Mr Flanagan:

[19] It is submitted that the video footage does not support that conclusion, and should be viewed in light of all the available evidence, including the Magistrate’s findings that ‘it should have been abundantly clear that Povey was not evading police’, that Povey was an honest and reliable witness and he accepted his evidence over (Mr Flanagan), and that (Mr Flanagan) had ‘damaged his credibility irreparably… going to what is submitted to be his honest beliefs’.

  1. [31]
    In relation to Mr Flanagan’s mental health issues, and to the new disciplinary system, the Deputy Commissioner notes that in his decision that consideration was given to:[16]

[24] In his decision, the (Deputy Commissioner) stated that he would have dismissed the applicant had he remained a member of the service, as he considered that demotion was inadequate and that the applicants conduct was incompatible with his employment at the QPS. (The Deputy Commissioner) considered the new discipline system, and (Mr Flanagan’s) mental health issues, and nevertheless determined that this was a serious misconduct matter warranting a disciplinary outcome. It is submitted that those factors do not render a sanction of dismissal or demotion in this matter ‘unsustainable’.

  1. [32]
    In relation to the evidence of Dr Dodds, the Deputy Commissioner submits that the report of Dr Dodds does not comply with the minimum requirements for an expert report in Tribunal proceedings and should be given reduced weight:[17]

[28] It is acknowledged that the tribunal is not bound by the rules of evidence, and Dr Dodds report formed part of the record of the decision. However, it is submitted that the evidence of Dr Dodds should be given reduced weight because of the failure to state the sources and basis upon which his opinions are formed. Further, the timing of the report in the criminal proceedings, prior to convictions and the disciplinary proceedings, indicates that the information briefed to Dr Dodds did not include all relevant information including the version of the facts accepted by the court and (the Deputy Commissioner), or (Mr Flanagan’s) disciplinary history.

  1. [33]
    As to the significance of the medical evidence, the Deputy Commissioner submits that the medical evidence is insufficient to make the determination that general and specific deterrence should be removed or to properly assess what level it should be moderated at.[18]
  1. [34]
    As to Mr Flanagan’s disciplinary history, the Deputy Commissioner submits that it is not ‘without significant blemish’ and refers to specific incidents:[19]

[36] (Mr Flanagan’s) submission that the offending was ‘entirely out of character’ and that he had served ‘without significant blemish’ for 26 years is clearly incorrect based on (Mr Flanagan’s) disciplinary history. (The Deputy Commissioner) specifically noted that (Mr Flanagan) had faced two previous discipline hearings, one in 1996 where the sanction of reprimand was imposed, but of ‘some concern’ was the finding of ‘further misconduct as recently as 2015 resulting in two penalty units being imposed’ and that it involved similar conduct to the current matter with unprofessional conduct and threats during the intercept of a vehicle.

…..

[38] In total, over approximately a 23 year period from 1992 to 2015, (Mr Flanagan) had:

  1. 9 findings of breach of discipline:
  1. the 1996 matter referred to above was resolved by way of reprimand
  2. 5 matters were finalised by managerial guidance
  3. 5 were finalised by informal resolution; and
  1. 5 findings of misconduct:
  1. the 2015 matter referred to above was finalised by fine of 2 penalty units;
  2. 1 matter was finalised by managerial guidance;
  3. 3 matters were finalised by informal resolution.
  1. [35]
    As to the attitude of the QPS to the mental health of officers generally, the Deputy Commissioner submits that it is a factor that he takes into account:[20]

[40] The (Deputy Commissioner) submits that each case should be decided on its own factual circumstances, and it is not accepted that the service should always take the same standards in every case involving a police officer with mental health issues. The (Deputy Commissioner) noted that ‘mental health is only one consideration, albeit important’ and the new discipline system is ‘not intended to take the place of a discipline hearing’. The (Deputy Commissioner’s) further comments also indicate that he considered (Mr Flanagan’s) mental health but nevertheless determined it was a ‘serious misconduct matter’ warranting a disciplinary hearing.

  1. [36]
    In relation to the new discipline system, the Deputy Commissioner submits that the new system does not abolish the discretionary power of the Service to impose a disciplinary declaration, and the objectives of improving performance and protecting the reputation of the Service demonstrate that the discipline in this matter was appropriate.[21]
  2. [37]
    In relation to the considerations overall, the Deputy Commissioner submits that a significant penalty is required and that the Tribunal should confirm the sanction:[22]

[54] Having regard to the purpose of misconduct and disciplinary proceedings in the service, namely:

  1. for protection of the public;
  1. the maintenance of confidence in the service; and
  1. the maintenance of integrity and performance of police duties

it is submitted that the misconduct substantiated against the applicant calls for a significant penalty, notwithstanding the fact it was in mitigation including the mental health issues.

[55] All the mitigating factors, including the mental health issues, were appropriately considered by the (Deputy Commissioner) on the information available to him, and balanced with sufficient weight against the competing considerations. The discretionary power of the (Deputy Commissioner) to make a disciplinary declaration in this matter that he would have dismissed (Mr Flanagan) had he remained in the Service, was warranted in all the circumstances.

[56] For these reasons, it is submitted that the sanction imposed by the (Deputy Commissioner) should, pursuant to s 24(1)(a) of the QCAT act, be confirmed by the Tribunal, as it was the correct and preferable decision.

Submissions of the Crime and Corruption Commission as to sanction generally

  1. [38]
    At the hearing, Counsel for the Crime and Corruption Commission described itself as a ‘passive participant’, but indicated that it agreed with the decision of the Deputy Commissioner.

The Court of Appeal

  1. [39]
    The Court of Appeal considered sections 52 and 615 of the Police Powers and Responsibilities Act 2000 (‘PPRA’) in particular in discussion of Mr Flanagan’s actions.
  2. [40]
    Section 52 PPRA provided as follows:

52 Prevention of offences – general

  1. This section applies if a police officer reasonably suspects an offence has been committed, is being committed, or is about to be committed.
  1. It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the commission, continuation or repetition of an offence.
  1. [41]
    Section 615 of the PPRA provided as follows:

615 Power to use force against individuals

  1. (1)
    It is lawful for a police officer exercising or attempting to exercise a power under this or any other act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.

Example—

A police officer may use reasonable force to prevent a person evading arrest.

  1. Also, it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.
  1. The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death.
  1. [42]
    Justice Philippides, in the Court of Appeal decision, referred to the factual findings of the Magistrate in the prosecution proceedings:[23]

[17] In the course of reaching his determination that (Mr Flanagan) was guilty of the charged offences, the magistrate made extensive findings including as to credibility. It is important to note that none of those findings were challenged on the appeal to the District Court nor to this Court. The magistrate found Mr Povey to be an honest and reliable witness. On contested matters, he accepted the evidence of Mr Povey over that of (Mr Flanagan), whose evidence he found to be ‘implausible’ and ‘inconsistent with objective evidence adduced’. In addition, the magistrate made a number of specific adverse findings as to the respondents credibility.

  1. [43]
    In the course of her reasons, Justice Philippides referred to the uncontested findings of the Magistrate, and found that his rejection of Mr Flanagan’s evidence gave no basis to conclude that Mr Flanagan’s actions were justified under s 52 of the PPRA, or supported a finding that the force used was reasonably necessary:[24]

[60] Given the uncontested findings made by the magistrate, the conclusion that (Mr Flanagan) acted in the lawful exercise of power under the PPRA is not open. It is to be observed that the magistrate emphatically rejected (Mr Flanagan’s) evidence that he thought Mr Povey’s vehicle was stolen, that there was a weapon in it, and that that ‘meant that he had to point his pistol at and handcuff’ Mr Povey. The magistrate made three critical findings as to credit that were not challenged:

  1. The magistrate found that the only reason (Mr Flanagan) thought Mr Povey’s vehicle was stolen was because Mr Povey did not pull over as quickly as he thought he could have, but that (Mr Flanagan’s) evidence in that regard was neither plausible nor credible, particularly given that no mention was made in the activity log of his ‘thinking that (Mr) Povey’s vehicle was stolen or possibly stolen’, although a possible evade was.
  1. The magistrate also found that (Mr Flanagan’s) testimony as to his thinking Mr Povey was going for a gun by making what the magistrate found on the evidence to be an unremarkable movement, was not credible.
  1. The magistrate expressly found that, while (Mr Flanagan’s) shouting at Mr Povey ‘to put his hands up, et cetera might be indicative of him thinking’ Mr Povey had a weapon, the evidence of (Mr Flanagan’s) calling Mr Povey ‘a dickhead’ when asking for his drivers licence and then querying where Menzies was – (Mr) Povey’s address – and saying (he) should have ‘effing stayed there’, were all expressions of anger and frustration and all linked back to Mr Povey’s failure to pull over as quickly as (Mr Flanagan) thought he should have. The magistrate thus rejected (Mr Flanagan’s) evidence that he only became angry with Mr Povey upon realising that the situation was not as bad as he had at first thought. To the contrary, the magistrate found that the objective evidence established that (Mr Flanagan) was angry with Mr Povey from the time Mr Povey did not pull over and that his anger did not abate, even when Mr Povey did pull over.

[61] Given the magistrate’s rejection of (Mr Flanagan’s) evidence as to what he thought the circumstances he was facing appeared to be (that the vehicle was stolen and that there was a weapon), there was no basis upon which it was open to find that (Mr Flanagan) held a reasonable suspicion such as to give rise to a power under s52 PPRA, nor to support a finding that the force used was reasonably necessary.

  1. [44]
    Justice McMurdo made similar comments as to the effect of the Magistrate’s findings:[25]

[85] In my respectful opinion, the judge erred in allowing the appeal, although the case had been conducted in the Magistrates Court upon an erroneous basis. As it happened, and with no injustice to (Mr Flanagan) the magistrate had made clear factual findings which were irreconcilable with either the existence of powers exercisable under s52, or an authority to use of force which was used in this case, consistently with s 615 PPRA. To decide the appeal, the District Court Judge had to decide whether those findings were erroneously made. Her Honour did not do so. She said that there was evidence to support contrary findings, but she identified no error in the findings which are made.

[86] The magistrate, of course, had seen and heard the relevant witnesses. Unless the magistrate was found to have misused the opportunity that came with doing so, his factual findings were not to be disturbed and upon those findings, there could have been no legal authority from the PPRA for (Mr Flanagan’s) actions.

Submissions on availability of a suspended dismissal or demotion

  1. [45]
    The submissions on behalf of Mr Flanagan are that a sanction of suspended dismissal or suspended demotion in rank would not satisfy the term ‘termination of employment’ or ‘reduction of rank’ within the meaning of s 7A.2(3) of the PSAA for the purposes of making a disciplinary declaration.[26]
  2. [46]
    The relevant wording of s 7A.2(3) of PSAA, as previously noted, prior to 30 October 2019, was that a disciplinary declaration may be made by the Commissioner only if the disciplinary action that would have been taken against the former officer if the former officer’s employment had not ended would have been:
    1. (a)
      Termination of employment; or
    2. (b)
      Reduction of rank.
  3. [47]
    The wording after 30 October 2019 reworded and extended the range of disciplinary actions to be:
    1. (a)
      Dismissal; or
    2. (b)
      Suspension from duty without pay for at least three months; or
    3. (c)
      Probation; or
    4. (d)
      Demotion, whether permanently or for a stated period.
  4. [48]
    There does not appear to be any difference in the terms ‘termination of employment’ as opposed to ‘dismissal’; or between ‘reduction of rank’ and ‘demotion, whether permanently or for a stated period’; so I do not consider there is relevance, for current purposes, in that change of language in the legislation.
  5. [49]
    Section 7.4(3) provides:

(3) Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following –

  1. dismissal;
  1. demotion in rank;
  1. reprimand;
  1. reduction in an officer’s level of salary;
  1. forfeiture or deferment of a salary increment or increase;
  1. deduction from an officer’s salary payment of a sum equivalent to a fine of two penalty units.
  1. [50]
    Mr Flanagan submits that:[27]
    1. (a)
      Suspended sanctions are not included in the wording of s 7A.2(3) or 7.4(3),
    2. (b)
      The power to suspend a sanction is found pursuant to regulation 5 or 12 of the Police Service (Discipline) Regulations 1990, and
    3. (c)
      Those regulations are not mentioned within the definition of a ‘disciplinary declaration’ or within s 7A.2(3).
  2. [51]
    Mr Flanagan submits that the Tribunal can find which of the eight possible sanctions under s 7.4(3) of the PSAA would have been imposed had Mr Flanagan remained in the Service, but that it is only if one of the two options referred to in s 7A.2(3) is imposed, of termination of employment or reduction of rank, that it can make a disciplinary declaration.[28]
  3. [52]
    The Deputy Commissioner submits that s 7A.2(3) of the PSAA does extend to suspension of the sanctions of termination of employment or reduction in rank, and that, even if such a sanction was ultimately suspended, it was still a sanction:[29]

7. It is submitted on behalf of the (Deputy Commissioner), that s 7A.2(3) of the PSAA does extend to suspension of a sanction. Even if the (Deputy Commissioner) ‘would have’ ultimately suspended the sanction of termination of employment or reduction in rank, had the former officer stayed in the QPS, it remains a termination of employment or reduction in rank within the meaning of s 7A.2(3) of the PSAA.

8. It is noted that as a matter of practicality, a former officer could not have any suspension conditions placed upon the employment, as they are no longer able to meet those conditions. Given that, it would be an unnecessary exercise to consider whether they ultimately would suspend that sanction. The important condition for s 7A.2(3) is that the decision-maker finds that the sanction would have been termination of employment or reduction in rank, regardless of whether they would have ultimately suspended that sanction or not.

  1. [53]
    The Deputy Commissioner submits that the Tribunal continues to have power to make a disciplinary declaration in circumstances where the Tribunal would have imposed a sanction of suspended dismissal or reduction in rank, having regard to surrounding provisions:[30]

22. It would be inconsistent with the surrounding provisions, in particular s 219J(2) of the CC Act, if s219L(7) of the CC Act is read in a way that unduly restricts the tribunal in its power to make a disciplinary declaration against a former officer.

23. It is submitted that in circumstances where the tribunal determines that the sanction that would have been imposed on the former officer was one of suspended dismissal or reduction in rank, if remains open to the tribunal to make a disciplinary declaration pursuant to s 219IA(3) or s219J(5) of the CC Act.

  1. [54]
    As to whether the Tribunal could make a decision in this matter incorporating s 8.3 of the PSAA (‘unfitness for duty on medical grounds’), the Deputy Commissioner does not accept that the QPS would resolve the matter only by a s 8.3 process, and not by disciplinary action.[31]
  2. [55]
    The Deputy Commissioner submits that the medical unfitness process does not prevent a separate disciplinary proceeding process, specifically the making of a disciplinary declaration under s 7A.2 of the PSAA[32] .
  3. [56]
    The Deputy Commissioner notes as to the medical unfitness process that:
    1. (a)
      It can only be commenced in the specific circumstances indicated in s 8.3(1) of the PSAA, namely the Commissioner ‘suspects on reasonable grounds’ that an officer ‘by reason of physical or mental infirmity is incapable of; or (b) for any other reason pertaining to the office or health or condition, is unfit for the purpose of’ performing the duties of office;[33] and
    2. (b)
      The only medical evidence, Dr Dodds’ report dated 23 January 2017, notes ‘As a result of effective treatment to date (Mr Flanagan) is learning to recognise the triggers that activate his PTSD. As such he is very unlikely to reoffend in the future’, and submits that evidence does not support that Mr Flanagan was incapable of or unfit for the purposes of performing the duties of office.[34]
  4. [57]
    The Deputy Commissioner submits that the relevant provisions of the Crime and Corruption Act 2001 (‘CC Act’) concerning the Tribunal’s powers in discipline review decisions, namely sections 219I to 219L, do not provide the Tribunal the power to make a decision with respect to s 8.3 of the PSAA, and that process is not a decision which can be appropriately made by the Tribunal as part of a sanction in disciplinary proceedings.[35]
  5. [58]
    The Commission submits that a sanction that Mr Flanagan’s employment be terminated or that he be reduced in rank, with that section wholly suspended for a period of time on certain conditions, would be a ‘termination of employment’ or ‘reduction of rank’ within the meaning of s 7A.2(3).
  6. [59]
    The Commission submits that s 219L of the CC Act gives the Tribunal the power to suspend a disciplinary sanction it imposes consequent upon a finding of corrupt conduct, or if, on a review of the disciplinary decision the Tribunal is to impose a sanction, and that subsection (7) provides that this section does not apply to suspension of a disciplinary declaration itself.[36]
  7. [60]
    The Commission submits that the suspension of a sanction is a two-step process, that firstly the decision-maker considers the appropriate sanction, and then may suspend the order or discipline if they consider it appropriate in the circumstances;[37] but that this results in a sanction even if it is suspended:[38]

30. Nevertheless, that two-step reasoning process – 1st to consider the seriousness of the conduct and the appropriate sanction, and then to consider whether there are circumstances that justify suspension the effect of that sanction, makes clear that the sanction is ordered, even if its effect is suspended.

31. There is a clear parallel between suspension of disciplinary sanctions, and suspended sentences of imprisonment in the criminal context. Courts have considered that a suspended sentence of imprisonment is to be regarded as a sentence of imprisonment.

  1. [61]
    The Commission submits that therefore if the Tribunal is satisfied that dismissal or demotion would be appropriate sanction for the conduct in the present case, the Tribunal may make a disciplinary declaration, even if the Tribunal considers that the sanction that would have been imposed would have been suspended.[39]
  2. [62]
    The Commission submits that the limiting of the availability of a disciplinary declaration was included in the legislation to provide a threshold of seriousness of conduct which may warrant the making of such a declaration.[40]
  3. [63]
    The Commission submits however that the question may be moot in any event, as an officer who has left the service cannot be subject to a suspended sanction, and has no capacity to demonstrate rehabilitation in a disciplinary context. It submits that it may be ‘an exercise in futility’ to consider whether any sanction would be suspended in the context of a disciplinary declaration as a necessary precondition to that – and ability for the officer to prove themselves – simply cannot be met.[41]
  4. [64]
    The Deputy Commissioner, in response, agrees with the submissions of the commission, and submits that Mr Flanagan’s interpretation of s 7A.2 of PSAA to exclude suspended sanctions adopts an unduly restrictive approach.[42]
  5. [65]
    The Deputy Commissioner submits that a disciplinary declaration could be made where a suspended dismissal or demotion was imposed:[43]

9. It is submitted that the prescribed officer has broad powers with respect to disciplinary sanctions pursuant to s 7.4(3) of the PSAA and the corresponding Discipline Regulations, and that this extends to the power to suspend a disciplinary sanction. Further, it is submitted that a suspended dismissal or demotion would fall within the ambit of s 7.4(3) of the PSAA and the definition of ‘disciplinary declaration’ in s 7A.2(5) of the PSAA.

  1. [66]
    The Commission, in reply, refers to the issue of medical retirement raised in the submissions for Mr Flanagan, and submits that is not a question for the Tribunal to consider:[44]

8. If the tribunal is giving further consideration to that issue (medical retirement), the (commission) seeks only to note briefly that there is no prohibition on a disciplinary declaration being made in respect of an officer who has been retired on medical grounds. So much is made clear by the reference in s7A.1(1)(b), which provides that Part 7A applies to an officer whose employment ends for any reason (emphasis added).

9. This makes clear that the two issues are disjunctive. The question of whether a person may have been medically retired is discrete from the question of whether a disciplinary declaration should be made and, as the (Deputy Commissioner) notes, that is not a question for this tribunal to consider.

Discussion

  1. [67]
    The facts in this matter are not in dispute, and have not been in dispute throughout the now lengthy history of the various matters since 5 May 2015.
  2. [68]
    The Deputy Commissioner made a disciplinary declaration on 6 November 2018. The effect of such a declaration, made as to an officer who is no longer serving, is to put on record disciplinary findings.
  3. [69]
    The purpose of such a process is obviously to counter an officer being able to simply resign, before disciplinary proceedings have been commenced, or in the course of disciplinary proceedings, thereby having no formal adverse finding made against him/her which would be required to be disclosed to a future potential employer, or which may be required to be disclosed in certain types of licence applications.
  4. [70]
    In this matter, the Deputy Commissioner has made a declaration that a sanction of dismissal would have been imposed if the officer had remained employed in the QPS.
  5. [71]
    Mr Flanagan had a long period of continuous service with the QPS from 1989 until 2018. At the time of his resignation he held the rank of Senior Constable.
  6. [72]
    In the course of his service, Mr Flanagan had nine findings of breach of discipline and five findings of misconduct made against him.
  7. [73]
    At the time of the events in question, Mr Flanagan was stationed at Longreach, a regional posting in Central West Queensland. Longreach is approximately 700 km from the coast, west of Rockhampton.
  8. [74]
    Mr Flanagan was tasked to perform a single officer patrol whilst driving a police vehicle when the incident occurred.
  9. [75]
    Mr Flanagan used coarse language, and swore at a citizen, but it is the wrongful use of a service firearm and wrongful depriving of liberty that particularly attracts consideration of a severe sanction.
  10. [76]
    The seriousness of the incident is highlighted by Mr Flanagan’s subsequent conviction by a Magistrate for the offences of common assault and deprivation of liberty (although no conviction was recorded). That conviction was initially overturned on appeal by the District Court, but was reinstated by the Court of Appeal.
  11. [77]
    The Magistrate made findings which were adverse to the credibility of Mr Flanagan, as to the basis upon which he acted. Those findings were not disturbed by the Court of Appeal.
  12. [78]
    The Magistrate in his sentencing comments noted the possibility of the convictions leading to disciplinary proceedings and possible dismissal:[45]

As Mr Zimmerman has submitted, you will still have to face police disciplinary proceedings. Whatever the outcome of those proceedings is, in reality, it will most likely be that you, if you are not dismissed, will not be or should not be employed in the position that you held at the time of offending.

  1. [79]
    The Appeal Tribunal has described the comments of His Honour Brennan J in Police Service Board v Morris[46] as an authoritative statement as to the purpose of discipline in the police service:[47]

The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardise public confidence by the conduct, nor neglect the performance of the police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force of the self esteem of police officers and of efficiency.

  1. [80]
    The comments of Justice Muir in R v Price ex parte A-G (Qld)[48], (which were referred to in submissions to the Magistrate on sentence) address public confidence in the police service:

[53] This, of course, is not a corruption case, but public confidence in the administration of justice and, in particular, the role of the police force in that regard, may be undermined in different ways. Public confidence will be eroded by the abuse of police powers through the use of excessive and unjustifiable force against citizens within the power of police officers. The public needs to have confidence that the extensive powers and responsibilities reposed in the police officers, for the protection of the public and the due ordering of society, will be exercised carefully and responsibly, for the purposes for which they are bestowed. The regard in which a police force is held by the public contributes not only to the morale of the force and its esprit de corps, but to the efficacy of its operations through community cooperation and support.

  1. [81]
    Justice Muir went on to address the specific situation of an officer convicted of assault:[49]

[54] I accept that, at least as a general proposition, the fact that an unlawful assault has been perpetrated by a police officer in the performance of his duties is a circumstance which greatly elevates the criminality of the subject conduct and plainly distinguishes it from that of an offender who does not hold similar office.

  1. [82]
    The wrongful handling of a service firearm, and wrongful deprivation of liberty, are an abuse of the powers of a police officer. Those are very serious actions which would greatly concern the public, and jeopardise their confidence in the police service, which they should be able to trust as acting to protect them in a lawful way.
  2. [83]
    I consider that in the absence of any countervailing factors or considerations that a sanction of dismissal in these circumstances should, and would, be imposed.
  3. [84]
    The resultant issue in this matter is therefore whether there are countervailing factors or considerations that mitigate against, or negate, the otherwise appropriate disciplinary sanction of dismissal.
  4. [85]
    Significant aspects of this matter which require particular consideration relate to the impact of alleged mental health conditions of the officer, and the actions of the QPS in assigning the officer to his duties.
  5. [86]
    The submissions made on behalf of Mr Flanagan centre upon his having an undiagnosed mental health condition of Post-Traumatic Stress Disorder (‘PTSD’), and the inappropriateness of his being assigned to his duties at Longreach, and acting unsupervised, in light of previous issues of concern which the service was aware of.
  6. [87]
    The consideration of a mental health condition in police disciplinary proceedings was discussed in the Tribunal hearing of Austin v Deputy Commissioner Peter Martin[50] where reference was made to the following principles which were described as ‘applicable in police disciplinary proceedings in Queensland’:[51]

[34] In R v Gooder[52] the Court of Appeal observed:

This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of generally deterrence upon the sentencing discretion (R v Dunn [1994] QCA 147; R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53.

[35] In R v Yarwood[53], at [33] and [34], the Court said:

The court in Tsiaras [1996] 1 VR 398 at 400 observed that:

“[A] prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence…”

Where a person holds a position of significant trust, such as a solicitor, who abuses that position and offends criminally there is important public interest in deterring others similarly holding positions of trust. Solicitors are given important privileges, which necessarily demand a high standard of conduct in return, both as to professional competence and ethical conduct. Accordingly, where a solicitor departs from those standards in the practice of the profession and in a very public way, the public and fellow practitioners ought not be scandalised by an excessively lenient sentence. However, deterrence in the sense of deterring other practitioners and vindicating the community’s need to punish wrongdoing, particularly if the offender is a member of the privileged group, has limited application where the offender suffers from a mental disorder. Such a person is much less able than others not so afflicted to make sound judgments about conduct.

The courts in Australia, as discussed in Verdins [2007] VSCA 102 at [23]-[26], have readily accepted that moral culpability for an offence as distinct from the offender’s legal responsibility for it might be reduced by mental illness. There seems little doubt that the applicant’s diagnosed psychological and psychiatric conditions contributed directly to his offending. His ability to exercise appropriate judgment, think clearly, and fully appreciate the wrongfulness of his conduct seems to have been grossly impaired. That is not to say (as the applicant comes close to submitting in some places his written submissions) that he was not criminally responsible for his conduct. But if fellow practitioners and the public were aware of the extent for his illness they would not require condign punishment to be imposed, rather the punishment should be ameliorated.”

[36] These principles have also been held to apply in the case of disciplinary proceedings, by the Victorian Court of Appeal in Quinn v Law Institute of Victoria Limited[54]. At [36], that court stated:

Relevantly, for present purposes, the analogy with sentencing means that the existence of any mental condition, either at the time of the offending or at the time of the Tribunal’s hearing, or both, may be relevant in one or more of the various ways described by this Court in R v Tsiaris and, more recently, in R v Verdins; R v Buckley; R v Vo. In the present cases, is seems to me, very real questions arose as to whether Quinn’s history of depression reduced his culpability for the offending, and hence its gravity, and/or reduced the need for specific deterrence and/or made him an inappropriate vehicle for general deterrence. None of those questions was addressed by the Tribunal.

[37] And, at [38]:

…In the present cases, I would admit the fresh evidence, which serves to underline the seriousness of the mental illness which had afflicted Quinn. The presences of the depressive condition meant that both specific and general deterrence had to be “sensibly moderated” in this case, and that the implications for Quinn’s culpability had to be considered.

  1. [88]
    The support for the proposition that Mr Flanagan had an undiagnosed mental health condition of PTSD arises from the evidence of Dr Dodds. Discussion was held with the representatives for the parties at the commencement of the hearing as to which report of Dr Dodds was to be considered in these proceedings.
  2. [89]
    Upon agreement being reached between the representatives for the parties as to the report to be considered, and as to any requirement for cross-examination of Dr Dodds, I directed that:
    1. (a)
      Leave was given for the admission of fresh evidence, being the report of Dr Dodds, dated 23 January 2017, on the basis that no cross examination was to be conducted.
    2. (b)
      An earlier report of Dr Dodds, dated 7 November 2016, be removed from the material in the proceeding.
    3. (c)
      The report of Dr Dodds, dated 23 January 2017, was to be his evidence in the proceeding.
  3. [90]
    In his report of 23 January 2017, Dr Dodds said that he is Mr Flanagan’s treating psychiatrist, and had been since 15 June 2016. He notes that Mr Flanagan has consulted him on nine occasions since that time, the most recent being on 16 January 2017. He confirmed that his current diagnosis remained as ‘post-traumatic stress disorder, chronic (PTSD)’.
  4. [91]
    Dr Dodds said that Mr Flanagan met the full criteria for PTSD as per the American Psychiatric Association’s DSM-5. In particular he referred to Item E ‘Marked alterations in arousal and reactivity associated with traumatic events beginning after the traumatic events occurred as evidenced by:’ and noted the following words as being related to Mr Flanagan’s behaviour on 5 May 2015:[55]

1) irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression to people

3) hypervigilance

  1. [92]
    Dr Dodds says that Mr Flanagan was not aware that he had PTSD prior to consulting with him, and that Mr Flanagan had recognised to some extent that he was hypervigilant.[56]
  2. [93]
    Dr Dodds view as to Mr Flanagan’s motivations was expressed as follows:[57]

After viewing the additional material provided I am still of the view that his actions on 5 May 2015 have been strongly influenced by his PTSD.

  1. [94]
    Dr Dodds conclusions were as follows:[58]

In my opinion, (Mr Flanagan’s) conduct on the 5 May 2015 was a result of anger and aggressiveness arising out of hypervigilance arising out of PTSD.

(Mr Flanagan’s) unrecognised and untreated PTSD was the significant causal factor for the offending conduct been committed.

As a result of effective treatment to date he is learning to recognise the triggers that activate his PTSD. As such he is very unlikely to reoffend in the future.

  1. [95]
    The report of Dr Dodds indicates that Mr Flanagan had an ongoing condition of PTSD as at 23 January 2017, but does not indicate any suggested course of treatment, (other than to say the Mr Flanagan is learning to recognise his triggers).
  2. [96]
    The language adopted by Dr Dodds is mixed in intensity, in that he whilst expresses the view that Mr Flanagan was ‘strongly influenced by his PTSD’ on 5 May 2015, he goes further in saying that the PTSD was the ‘significant causal factor for the offending conduct’.
  3. [97]
    Whilst Dr Dodds expresses the view that Mr Flanagan was very unlikely to reoffend in the future, it is unclear why he has such a high degree of confidence in that result in the absence of any further treatment.
  4. [98]
    Dr Dodds gives a prognosis that he considers Mr Flanagan as ‘very unlikely to reoffend in the future', but does not rule out that possibility.
  5. [99]
    I note that Dr Dodds concludes his report with a qualifying expression, which may be a formality; or which may indicate that whilst his view is formed upon the evidence available to him at the time, that he is not assured that there may not be other evidence that was not available to him:[59]

I trust this report is helpful to the court and would add that I am open to review my opinion should I subsequently be made aware of any contradictory evidence.

  1. [100]
    Taken as a whole, I treat Dr Dodds report with circumspection, as:
    1. (a)
      Whilst Dr Dodds makes a diagnosis of PTSD, he does not indicate the severity of that condition, and
    2. (b)
      Whilst Dr Dodds refers to Mr Flanagan as having had ‘effective treatment to date’ and is ‘learning to recognise the triggers that activate his PTSD’, those expressions would seem to leave open the possibility of further treatment being of value, leading to a full recognition by Mr Flanagan of triggers that activate his PTSD, but does not set out any recommendations for further treatment to progress that learning.
  2. [101]
    I accept, based upon the report of Dr Dodds that Mr Flanagan does suffer from an undiagnosed condition of PTSD, but in the absence of a more particular assessment of the effect and severity of that condition, I find it difficult to attribute the application of that condition in the circumstances in question.
  3. [102]
    It is submitted for Mr Flanagan that the effect of his mental health condition of PTSD is to reduce his moral culpability in the circumstances. The comments by Dr Dodds attribute Mr Flanagan’s conditions of PTSD as ‘strongly influencing’ his actions on the day, but do not go as far as to attribute that condition as an overpowering influence sufficient to remove culpability from Mr Flanagan.
  4. [103]
    The consequence is that whilst the evidence of Dr Dodds serves to help to explain Mr Flanagan’s actions, I am not satisfied that it goes as far as to exculpate Mr Flanagan from ‘moral culpability’, or to establish his having insufficient conscious ability to control his behaviour.
  5. [104]
    I am not satisfied that Mr Flanagan’s mental health condition has been shown to be in itself of such a nature as to reduce his culpability sufficient to negate the otherwise appropriate sanction of dismissal.
  6. [105]
    An alternate proposition was put forward in the submissions of Mr Flanagan, that the QPS were aware that Mr Flanagan was unsuited to be placed in the positions of service in which he was placed in, and that his personal moral culpability would be mitigated by his having been placed in an inappropriate service role, and being asked to perform his service in an environment that was not suitable for an officer with his service record.
  7. [106]
    Mr Flanagan’s history (set out in his submissions) states that Mr Flanagan was:
    1. (a)
      Identified by the QPS as a medium risk in August 2006, which he was not advised of, and 
    2. (b)
      In October 2013 was identified as a risk, and advice was forwarded to the Assistant Commissioner, and he was stood down from duty and put on extended supervision and no contact with the public, and was again not advised of the identified risk, and
    3. (c)
      In 2015 was disciplined by the QPS for conduct that was unprofessional and rude toward a member of the public and explicitly threatened a member of the public.
  8. [107]
    In Mr Flanagan’s history set out in his submissions, it is stated that as a result of the above investigations, the QPS formally identified a risk for Mr Flanagan to work unsupervised.
  9. [108]
    A document referred to as Mr Flanagan’s service history was included as an attachment to the Notice of Disciplinary Grounds dated 13 August 2018. It refers to a misconduct incident which occurred on 17 October 2013 where it was alleged that Mr Flanagan had removed the keys from the ignition of a motor vehicle and thrown them against a crash barrier, and had dragged the driver out of the vehicle and threw him against a crash barrier when the complainant was not fast enough exiting out of vehicle after being ordered to do so, and was alleged to have been extremely aggressive and threatening and issued a traffic infringement notice even though the driver was not speeding.
  10. [109]
    The history states that Mr Flanagan was served with a Stand Down Notice on 14 November 2013, which was revoked on 4 March 2014 as Mr Flanagan had committed to comply with the conditions of a negotiated management plan.
  11. [110]
    The behaviour leading to that disciplinary matter, that was dealt with in 2015, of being unprofessional and rude toward a member of the public and explicitly threatening a member of the public, has strong similarities (although at a much lower level) to that displayed by Mr Flanagan in June 2018.
  12. [111]
    The issue of the stationing of Mr Flanagan was referred to in the disciplinary declaration made on 6 November 2018, in the Findings and Reasons, where the Deputy Commissioner made the following comments :[60]

V. I note you submit the QPS were negligent in the moving you to a single officer station given previous early intervention notifications. However, whilst you have 41 other complaints other than the matter I’m dealing with today, all were finalised by way of exoneration, un-substantiation or you received managerial guidance, except for two matters. You faced a previous discipline hearing in 1996, where the sanction of reprimand was imposed. What is of some concern is that you have been found to have committed further misconduct as recently as 2015 resulting in two penalty units being imposed. Most officers never face disciplinary action by a prescribed officer. More concerning is the matter currently before me has reached the threshold of seriousness that requires a prescribed officer at Deputy Commissioner level. Your previous disciplinary proceedings of misconduct on 24 February 2015 were at the prescribed officer level of Assistant Commissioner. Similarly to this matter, your conduct also related to your unprofessional conduct and threats during an intercept of a vehicle on the Pacific Highway. It would appear that despite the outcomes of this previous wrongdoing and a constant reminder concerning your conduct, you continued to fail to meet to the standard of conduct expected of a police officer.

VI. I do not accept your submission that under the new Police Discipline System and philosophy, conducting misconduct disciplinary proceedings in relation to offices with mental health issues is inconsistent with the new philosophy. Mental health is only one consideration, albeit important. Whilst the new discipline system is aimed towards assisting and treating our members by providing education and management strategies to address the conduct, it is not intended to take the place of a discipline hearing. This matter, whilst involving issues of mental health, is a serious misconduct matter.

VII. In determining the disciplinary sanction warranted for this matter, I give weight to the nature and seriousness of your conduct against all relevant mitigating factors, including the medical evidence. The weight to be given to personal circumstances, is to be balanced against the objects and purposes of discipline. As your submission acknowledges, in this matter is important to specifically consider the purposes of police discipline. It is also acknowledged that the police discipline process is not punitive in nature.

  1. [112]
    It is submitted on behalf of Mr Flanagan that a proper outcome of the disciplinary proceedings in this matter should be a training and guidance, or treatment, response, rather than a disciplinary finding.
  2. [113]
    The influence of the new police discipline system was referred to by the Deputy Commissioner in the Findings and Reasons for the disciplinary finding, where the applicability of disciplinary proceedings was discussed:[61]

VI. I do not accept your submission that under the new Police Discipline System and philosophy, conducting misconduct disciplinary proceedings in relation to offices with mental health issues is inconsistent with the new philosophy. Mental health is only one consideration, albeit important. Whilst the new discipline system is aimed towards assisting and treating our members by providing education and management strategies to address the conduct, it is not intended to take the place of a discipline hearing. This matter, whilst involving issues of mental health, is a serious misconduct matter.

VII. In determining the disciplinary sanction warranted for this matter, I give weight to the nature and seriousness of your conduct against all relevant mitigating factors, including the medical evidence. The weight to be given to personal circumstances, is to be balanced against the objects and purposes of discipline. As your submission acknowledges, in this matter is important to specifically consider the purposes of police discipline. It is also acknowledged that the police discipline process is not punitive in nature.

  1. [114]
    I consider that even if the Tribunal has power to make a decision involving training and guidance, or treatment (which is disputed) the Tribunal is not in a position to assess the types of training and guidance or treatment options available, as no material as to remedial or retraining steps has been put before it, and no guidance has been provided by Dr Dodds as to treatment.
  2. [115]
    The question as to whether a disciplinary finding of a suspended dismissal or suspended demotion in rank is open to be made within the meaning of s 7A.2(3) of the PSAA, was canvassed at the hearing, and has been the subject of written submissions as discussed.
  3. [116]
    The appropriateness of imposing a suspended dismissal generally was canvassed by the Appeal Tribunal in Crime and Corruption Commission v Queensland Police Service and Anor[62] where it was held that an appropriate case had not been made out for the suspending of a dismissal:

[50] Counsel for Mr Francis submitted that there is a balancing exercise in imposing a suspended dismissal. It involves an examination of whether anything is retrievable or salvageable for the investment of the public resources. He submitted that a suspension provides public recognition of the seriousness of the misconduct and, in the event of any further breach, an officer is subject to immediate dismissal. He submitted that Morier’s case[63] indicated that the effect of an order for suspension of dismissal can be consistent with maintenance of appropriate standards and confidence in the QPS, including the principles of deterrence. In that case, however, the tribunal notes the misconduct related to a single incident, an aberration in an otherwise unblemished career.

[51] Was the decision to suspended dismissal unsupported by the mitigating factors? It is the observation of this tribunal that the learned member essentially dismissed as insufficiently persuasive the mitigating factors that were placed before her yet she still suspended the dismissal contrary to her own reasoning. Her decision to suspended dismissal was surprising given the context of the reasoning.

[52] The circumstances of Mr Francis’ misconduct are so serious and over such an extended period of time that they overwhelm any mitigating factor and emphasise the unreasonableness of the suspension of the dismissal. The Learned Members examination of the mitigating factors leading to her decision to suspend dismissal runs counter to all her preceding, appropriate findings as to the seriousness of the misconduct and the erosion of public confidence. No member, apprised of the detailed circumstances of Mr Francis’ misconduct and in the necessary context of the significant public confidence requirements in the proper administration of the QPS, could have suspended his dismissal.

  1. [117]
    I consider that the interpretation submitted on behalf of Mr Flanagan, that because a suspended sanction is not specifically included in the wording of s 7A.2(3) or 7.4(3), that a suspended sanction is not available on a disciplinary declaration, to be too restrictive an approach.
  2. [118]
    I accept the submissions of the Deputy Commissioner and the Commission that a sanction that an officer’s employment be terminated, or that he/she be reduced in rank, but that the sanction be wholly suspended for a period of time on certain conditions would still be a ‘termination of employment’ or ‘reduction of rank’ within the meaning of s 7A.2(3).
  3. [119]
    I therefore consider that it would be open to the Tribunal, and within its jurisdiction, to impose a sanction of suspended dismissal or suspended demotion, if that were appropriate.
  4. [120]
    In considering whether it would be appropriate to in fact impose a sanction of suspended dismissal or suspended demotion, I see force in the submission of the Deputy Commissioner that, as a matter of practicality, a former officer could not have any suspension conditions placed on employment, as they are no longer able to meet those conditions.
  5. [121]
    The Commission makes a similar submission, that the question of a suspended sanction may be moot in any event, as the officer has no capacity to demonstrate rehabilitation in a disciplinary context.
  6. [122]
    It does appear to be an artificial exercise to impose a suspended sanction in a disciplinary declaration, as it can never serve its purpose of being a ‘Sword of Damocles’ hanging over the head of the officer, where the officer is no longer engaged in the service.
  7. [123]
    I consider that is the situation in this matter, where no purpose would be served by suspending the sanction, and do not consider that this is this is an appropriate situation for imposition of a suspended sanction.
  8. [124]
    I take note of the submissions as to the impact of the new disciplinary system. Whilst I am cognisant of the intent of the new system to be one of assistance to officers to improve their performance, I do not consider that the effect is to obviate disciplinary proceedings where they are appropriate. A disciplinary regime remains in place, and needs to be implemented where appropriate.
  9. [125]
    Whilst the new disciplinary system would look at addressing the conduct of an officer in a situation such as this, as to the possibility of remedial assistance, I consider that in this matter, the seriousness of the actions, and the presence of moral culpability in the officer (notwithstanding his condition of PTSD) is such as to require disciplinary proceedings to be taken, and an appropriate sanction to be imposed.
  10. [126]
    As I do not consider that it is appropriate in this matter to make a decision that involves a program of management or treatment, or to impose a suspended sanction, the question becomes whether there are any other mitigating circumstances or considerations that would serve to make a sanction of dismissal (which I have found should otherwise apply) not to be the correct and preferable decision.
  11. [127]
    It is noted that Mr Flanagan has expressed remorse for the incident, and that is a factor which I take into consideration.
  12. [128]
    There are other features of the matter however, which are not to Mr Flanagan’s credit, and which also need to be taken into consideration, which include the following:
    1. (a)
      Mr Flanagan’s credibility as a witness was severely criticised by the Magistrate in the criminal proceedings, and those findings were not disturbed by the Court of Appeal.
    2. (b)
      The disciplinary proceeding in 2015 is of particular relevance as it involves interaction with the public, and, notwithstanding the disciplinary finding, Mr Flanagan engaged in improper interaction with a citizen, of a far more severe nature, a couple of years later.
  13. [129]
    Having regard to:
    1. (a)
      The severity of the conduct of Mr Flanagan, and
    2. (b)
      It being conduct of such a nature as to directly conflict with the objects of protection of the public, maintenance of the confidence of the public in the QPS, the maintenance of integrity in the performance of police duties, and maintaining appropriate standards of discipline within the QPS, and
    3. (c)
      The mitigating factors that have been raised, and
    4. (d)
      Not being satisfied that alternate decisions or sanctions are appropriate,

I find that the appropriate sanction is dismissal as found by the Deputy Commissioner.

  1. [130]
    I therefore confirm the disciplinary declaration of the Deputy Commissioner made on 6 November 2018.

Footnotes

[1]Notice of Formal Finding, Misconduct, 6 November 2018, p.2.

[2]Submissions on behalf of the applicant Flanagan, filed 13 June 2019, page 9, Clauses (aa) to (kk).

[3](2019) 1 Qd R 249.

[4]Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019, s 11.

[5]Notice of Contentions Filed on Behalf of the Applicant, 27 November 2018.

[6]Submissions on behalf of the applicant Flanagan, filed 13 June 2019, [14a to 14j].

[7]Ibid [16].

[8]Ibid [18].

[9]Ibid [20].

[10]Ibid [32].

[11]  Ibid [37].

[12]  First Respondent's outline of submissions, filed 3 June 2019, [10].

[13]  Ibid [14].

[14]  Ibid [16].

[15]  Ibid [18].

[16]  Ibid [24].

[17]  Ibid [28].

[18]  Ibid [34].

[19]  Ibid [36].

[20]  Ibid [40].

[21]  Ibid [45].

[22]  Ibid [54] - [56].

[23]  Commissioner of Police v Flanagan [2018] QCA 109 at [17].

[24]  Ibid [60] - [61].

[25]  Ibid [85] and [86].

[26]  Submissions on behalf of the subject officer – question of law, filed 19 August 2019 [2].

[27]  Ibid [11].

[28]  Ibid [16].

[29]  First respondent's further submissions, filed 19 August 2019, [7] - [8].

[30]  Ibid [21] - [23].

[31]  Ibid [25].

[32]  Ibid [26].

[33]  Ibid [27].

[34]  Ibid [28].

[35]  Ibid [29].

[36]  Submissions for the second respondent on a question of law filed 16 August 2019, [12].

[37]  Ibid [25].

[38]  Ibid [30] - [31].

[39]  Ibid [37].

[40]  Ibid [39].

[41]  Ibid [44] - [50].

[42]  First respondent’s submissions in response – question of law, filed 9 September 2019, [3] - [4].

[43]  Ibid [9].

[44]  Submissions for the second respondent in reply, filed 9 September 2019, [8] - [9].

[45]  Transcript of proceedings, Brisbane Magistrates Court 10 February 2017, p. 2, 134.

[46]  (1985) 156 CLR 397, 412.

[47]  Crime and Corruption Commission v Queensland Police Service and Anor [2015] QCATA 15.

[48]  [2011] QCA 87, [53].

[49] Ibid [54].

[50]  [2018] QCAT 120.

[51]  Ibid [38].

[52]  [2009] QCA 377.

[53]  [2011] QCA 367.

[54]  [2007] VSCA 122.

[55]  Report Dr James Dodds, 23 January 2017, p. 2.

[56]  Ibid p. 2.

[57]  Ibid p. 2.

[58]  Ibid p. 3.

[59]  Ibid p. 4.

[60]  Disciplinary declaration under part 7A of the Police Service and Administration Act 1990, p. 8 – 9.

[61]  Ibid p. 11.

[62]  [2015] QCATA 15.

[63]Morier v Deputy Commissioner Conder, Misconduct Tribunal Queensland TA No. 1 of 2003.

Close

Editorial Notes

  • Published Case Name:

    Flanagan v Gee & Anor

  • Shortened Case Name:

    Flanagan v Gee

  • MNC:

    [2020] QCAT 36

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    05 Feb 2020

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.