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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee  QCA 201
In Appeal No 5962 of 2019
SENIOR SERGEANT ANTHONY LEE
In Appeal No 14214 of 2019
CRIME AND CORRUPTION COMMISSION
Appeal No 5962 of 2019
Court of Appeal
Application for Leave Queensland Civil and Administrative Tribunal Act
Queensland Civil and Administrative Tribunal at Brisbane-  QCATA 151 (Daubney J)
15 September 2020
3 June 2020
Sofronoff P and Morrison JA and Jackson J
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT – where s 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an appeal may be made “only on a question of law” – whether the grounds of the proposed appeal are limited to questions of law
ADMINISTRATIVE LAW – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where the appeal tribunal of the Queensland Civil and Administrative Tribunal (‘QCAT’) set aside the decision of QCAT at first instance and substituted a finding that the police officer (applicant/respondent) had engaged in corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) – where the appeal tribunal ordered that the police officer perform 12 months of probation subject to conditions – where each applicant applied for leave to appeal the decision of the appeal tribunal – where the police officer submitted that the appeal tribunal’s reasoning from the primary facts through to its inferential finding of the relevant purpose or purposes for engaging in the corrupt conduct was erroneous – where the Crime and Corruption Commission submitted that the orders made by the appeal tribunal were manifestly inadequate – whether the purpose of the disciplinary proceeding could be adequately achieved through the imposition of a sanction that left the police officer in the police service
Crime and Corruption Act 2001 (Qld), s 15, s 219A, s 219C, s 219D, s 219F, s 219I, s 219M
Crime and Corruption Commission v Lee (No 2)  QCATA 151, related
J R Hunter QC, with A D Scott, for the applicant/respondent
Gnech and Associates for the applicant/respondent
- SOFRONOFF P: I agree with Jackson J.
- MORRISON JA: I have read the reasons of Jackson J and agree with those reasons and the orders his Honour proposes.
- JACKSON J: There are two applications before this court for leave to appeal against orders made by the appeal tribunal of the Queensland Civil and Administrative Tribunal (‘QCAT’). In the first application before this court, the applicant (“Sergeant Lee”) applies for leave to appeal from the decision of the appeal tribunal that he engaged in corrupt conduct on the ground that the finding that he did so was erroneous. In the second application the applicant, The Crime and Corruption Commission, (“CCC”) applies for leave to appeal from the orders that were made by the appeal tribunal on the ground that the orders made were manifestly inadequate.
- On 10 May 2019, the appeal tribunal of QCAT allowed an appeal from a decision of the tribunal of QCAT and found that Sergeant Lee engaged in conduct that was corrupt conduct within the meaning of s 15 of the Crime and Corruption Act 2001 (Qld) (“CC Act”). On 30 March 2020, the orders were made following a further contested hearing.
- On 30 March 2020, the appeal tribunal of QCAT ordered that:
- “1.[Sergeant Lee] is ordered to perform 12 months of probation pursuant to sections 7.34 and 7.36 of the Police Service Administration Act 1990 (Qld), commencing 25 November 2019.
- 2.The probation is conditioned upon [Sergeant Lee]:
- (a)Being of good behaviour and not committing further acts of police misconduct or breach of discipline during the operational period of the probation order; and
- (b)Completing the following training modules during the operational period of the probation order:
- (i)QCI002 Professional Practice within the QPS;
- (ii)QCM401 Supervisory Responsibilities; and
- (iii)QC1002-02-A Ethics & Ethical Decision-making.”
- A summary of the corrupt conduct found by the appeal tribunal is as follows. On 21 January 2008 Sergeant Lee was assigned the task of investigating whether another police officer had assaulted a complainant in a watch-house. A third police officer’s report to Sergeant Lee stated, “watch-house video tape was viewed and verified parts of the [complainant’s] version” and a fourth police officer had said to Sergeant Lee that when Sergeant Lee watched the footage he would see why the matter was “not good”. On 26 February 2008, Sergeant Lee wrote a report to the assigning officer stating that on 8 February 2008 he had watched the CCTV footage of the incident and that it corroborated the investigated police officer’s version. In fact, Sergeant Lee had not done so, nor did the CCTV footage corroborate the investigated police officers version. On 1 May 2008, shortly after a court proceeding against the complainant had ended, Sergeant Lee recommended that the investigated police officer should be exonerated. On 17 May 2008, Sergeant Lee was directed to conduct further investigations and to report on what the CCTV footage showed. He took no steps to do those things before the investigation was taken out of his hands. Lastly, during the investigation of his conduct, Sergeant Lee gave inconsistent explanations.
Appeals on a question of law only
- The starting point is that QCAT’s jurisdiction to deal with the disciplinary proceeding in the first place was conferred by Chapter 5, Part 2 of the CC Act. The CCC may apply as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) to QCAT to hear and decide any allegation of corrupt conduct against a prescribed person.
- On dismissal of the application, appellate jurisdiction is conferred under the QCAT Act, Chapter 2, Part 8.
- The relevant provision of Chapter 2, Part 8 for present purposes are those in Division 2 that relate to appeals to the Court of Appeal from a decision of an appeal tribunal. That appellate jurisdiction conferred by s 150 of the QCAT Act is as follows:
“Party may appeal – decisions of appeal tribunal
- (1)A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.
- (2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—
- (a)a cost-amount decision;
- (b)the final decision.
- (3)However, an appeal under subsection (1) or (2) may be made—
- (a)only on a question of law; and
- (b)only if the party has obtained the court’s leave to appeal.” (emphasis added)
- If leave is granted, each of the present applications will qualify as an appeal against a final decision of an appeal tribunal for the purposes of s 150(2)(b). But, any appeal may be made only on a question of law.
- Sergeant Lee’s proposed appeal against the decision of the appeal tribunal would challenge its decision to set aside the order of the tribunal member exercising the original jurisdiction of the tribunal dismissing the application made by the CCC. The member had found that Sergeant Lee’s conduct was not corrupt conduct because it was not engaged in for the purpose of providing a benefit to another person or causing a detriment to another person. The tribunal member found:
“I am not however, persuaded that his intent in recommending exoneration was to benefit [the investigated police officer] or cause detriment to [the complainant].”
- In contrast, the appeal tribunal found that the inference to be drawn was that Sergeant Lee made the recommendation (the exoneration) for the purpose of giving a benefit to the investigated police officer (exoneration) and a detriment to the complainant (effective dismissal of her complaint).
- Simply put, the appeal tribunal found that was the right inference to draw on the undisputed facts, in circumstances where Sergeant Lee had not given evidence before the tribunal as to his purpose or purposes. It acknowledged that the member had referred to the relevant principles from Jones v Dunkel, but held that rather than correctly applying those principles to the facts, she raised a number of hypothetical alternatives and then preferred one of those hypotheses without any evidentiary basis for doing so.
- In this court, Sergeant Lee’s application for leave to appeal is based on four proposed grounds of appeal that would challenge the way in which the appeal tribunal reasoned from the primary facts through to its inferential finding of the relevant purpose or purposes. The proposed grounds of appeal are that the appeal tribunal erred in law by:
- finding that a Jones v Dunkel inference could be drawn from Sergeant Lee’s failure to give evidence in the proceedings before the tribunal;
- finding that there was no evidence from which the tribunal could properly infer that Sergeant Lee made his exoneration recommendation to get the investigation “off his desk”;
- not having regard to all of the relevant circumstances in determining what inference could properly be drawn as to the explanation for Sergeant Lee’s conduct;
- reasoning that an alternative explanation of Sergeant Lee’s conduct, compared to that found by the appeal tribunal, could only properly be established if Sergeant Lee had given evidence in the proceedings before the tribunal.
- Neither of the parties touched on the question of whether an appeal on those grounds would be an appeal only on a question of law. However, recent decisions show the restriction of appeals to this court from the appeal tribunal because of that requirement, in particular Pivovarova v Michelsen, and Maksymiuk v Savage.
- Sergeant Lee’s arguments are about the proper inferences to be drawn from undisputed primary facts of the kind to which the appellate approach in Lee v Lee, and Warren v Coombes, would apply on an appeal by way of re-hearing. But an appeal to this court would not be an appeal by way of rehearing. It seems difficult, in my view, to treat any of the questions sought to be agitated as being something which is not at least a mixed question of fact and law. If so, any appeal on those grounds would be incompetent.
- In the circumstances, in my view, Sergeant Lee’s application should be dismissed because an appeal based on the grounds he proposes would not be only on a question of law.
- Further, the proposed grounds of appeal all go to the appeal tribunal’s finding as to the element under s 15(1) of the Crime and Corruption Act 2001 that to be “corrupt conduct” conduct must be “engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person”. However, that requirement was removed in 2018 by the Crime and Corruption and Other Legislation Amendment Act 2018 (Qld), s 5.
- The reason for the change seems unclear. But, in any event, a decision in the present case as to whether Sergeant Lee’s conduct satisfied the requirements of the repealed element of the definition of “corrupt conduct” would not decide an important question of law or of general or public importance.
- Lastly, if the proposed appeal were competent and leave to appeal were granted, the question to be decided is whether this court would overturn the appeal tribunal’s finding that “[Sergeant]Lee’s conduct was engaged in for the purpose of conferring a benefit on [the investigated police officer] and causing a detriment to [the complainant].”
- In my view, the evidence that Sergeant Lee told untruths in a report that on 8 February 2008 he had “[v]iew[ed] video footage of watch-house incident, which corroborates the version as supplied by subject officer… (Video in possession of DSS Lee)”, supported the inference that Sergeant Lee engaged in the conduct for the purpose of providing a benefit to the police officer. It was objective evidence of what Sergeant Lee said and did that, in my view, showed he acted to benefit the investigated police officer. Accordingly, in my view, the proposed appeal would most likely be unsuccessful.
- For those reasons, in my view, Sergeant Lee’s application for leave to appeal should be refused.
CCC’s application for leave to appeal
- The CCC’s application for leave to appeal is a challenge to the exercise of discretion by the appeal tribunal as to the appropriate orders to make on a finding of corrupt conduct. Again, neither of the parties addressed the question of whether leave can be granted on the footing that an appeal on the proposed ground would be only on a question of law.
- The CCC’s outline of argument starts from the statement that leave should be granted because the ground of appeal, that the orders were manifestly inadequate, “involves a question of law”. But there is a distinction between a provision like s 150 of the QCAT Act which provides that an appeal may be made “only on a question of law” and an appeal against sentence by the Attorney-General in a criminal case under s 669A of the Criminal Code that provides the court may, in its unfettered discretion vary the sentence imposed at first instance, although often the court’s interference in the latter category is measured by whether it was manifestly inadequate. In any event, an appeal of that kind is dealt with by reference to the principles relating to an appeal against the exercise of discretion under House v The King.
- That seems to be the approach taken by the CCC in bringing the application for leave to appeal. The argument is founded on the proposition that the outcome was such that the purposes of the disciplinary proceedings could not be adequately achieved through the imposition of a sanction that left Sergeant Lee in the police service. It is appropriate to further consider the CCC’s application before determining whether an appeal on the grounds it propounds would be an appeal on a question of law only.
- On the hearing before the appeal tribunal, Sergeant Lee relied on an affidavit as to facts sworn by him and tendered a bundle of 51 references. He was not cross-examined as to those facts and they were uncontested. Most of the facts set out in the reasons of the appeal tribunal came from those sources. It is not suggested that the appeal tribunal made any error of fact. It is not necessary for this court to set out extensively the facts found by the appeal tribunal as to the circumstances of the corrupt conduct and subsequent events. However, some points may be mentioned.
- At the time of engaging in the corrupt conduct, Sergeant Lee held the rank of Detective Senior Sergeant and was the officer in charge of the Mackay Child Protection and Investigation Unit and, as well, had taken over as the officer in charge of the Mackay District Criminal Investigation Branch. He was required to perform the duties of both roles. He was also required to review three cold case homicides during that period. He was working 12 to 16 hour days, in addition to performing rotational supervisory duties (on shift work) as a district duty officer. He said that the workload placed an enormous burden on him both physically and mentally.
- From May 2008, Sergeant Lee continued to serve as a police officer in a number of different and senior positions. However, his promotion beyond those positions was thwarted by the existence of the corrupt conduct investigation and the subject proceeding against him.
- During his lengthy police career of over 35 years, Sergeant Lee has undertaken many management and investigation courses. He has received many decorations and medals. Apart from the subject of this proceeding, Sergeant Lee has not been found to have engaged in any corrupt conduct or other inappropriate conduct.
- Since 2016, both Sergeant Lee’s son and his wife have suffered serious ill health that have affected the family greatly. Without Sergeant Lee’s income as a police officer the family would struggle and he would not be able to adequately provide for either his wife’s or his son’s ongoing medical treatment. In that context, Sergeant Lee said that he was “absolutely filthy” at himself for putting his family in the position that they were in. He also expressed regret at the fact that his further career ambitions were thwarted by the subject of this proceeding.
- Sergeant Lee received no gain personally or professionally from the corrupt conduct.
- The many references provided on behalf of Sergeant Lee from past and present police officers and community leaders were uniform in their assessment of his otherwise good character and integrity, as a police officer and a community leader.
- The relevant powers under which the appeal tribunal made its orders are contained in s 219I of the CC Act that provided, in part:
“(3) QCAT may make any order the commissioner of police could make under the Police Service Administration Act 1990, part 7, division 5, other than section 7.41, if a ground for disciplinary action had been proved against the prescribed person under part 7, division 4 of that Act.
- (4)QCAT may, on a finding of corrupt conduct being proved against a prescribed person mentioned in section 50(3), definition prescribed person, paragraph (b)(i), order that the prescribed person –
- (a)be dismissed; or
- (b)be reduced in rank or salary level; or
- (c)forfeit, or have deferred, a salary increment or increase to which the prescribed person would ordinarily be entitled; or
- (d)be fined a stated amount that is to be deducted from –
- (i)the person’s periodic salary payment in an amount not more than an amount equal to the value of 2 penalty units per payment; or
- (ii)the person’s monetary entitlements, other than superannuation entitlements, on termination of the person’s service.
- (5)In deciding the amount for subsection (4)(d)(ii), QCAT may have regard to the value of any gain to the prescribed person from the person’s corrupt conduct.”
- The orders available under Part 7, Division 5 of the Police Service Administration Act 1990 (Qld), s 7.34 were relevantly:
Each of the following sanctions is a disciplinary sanction –
- (b)suspension from duty without pay for not longer than 12 months;
- (c)probation for not longer than 12 months;
See also section 7.36 in relation to probation.
- (d)demotion, whether permanently or for a stated period;
- (e)comprehensive transfer;
- (f)local transfer;
- (g)performance of up to 100 hours of community service;
See also section 7.39 in relation to community service.
- (h)a fine of up to 50 penalty units;
See also section 7.40 in relation to fines.
- (i)a reprimand.”
- The CCC submitted that the error in this case is to be found in the outcome of a probation sanction for corrupt conduct. It submitted that if corrupt conduct is serious, then the purpose of a disciplinary proceeding cannot be adequately achieved through the imposition of a sanction that leaves Sergeant Lee in the police service. That is to say, ethical standards in the police service cannot be upheld unless it is made clear that anyone who has engaged in serious corrupt conduct, as a police officer, will be dismissed from the service.
- The appeal tribunal found that the purpose for imposing a disciplinary order or sanction is not to punish Sergeant Lee but, consistent with the purposes stated in s 219A of the CC Act, to impose an order which, in the circumstances of the case:
- (a)will provide protection to the public against a repetition or perpetuation of misconduct of this type;
- (b)will serve to uphold the ethical standards of the police service; and
- (c)may promote and maintain public confidence in the public sector.
- The appeal tribunal held further that its approach to assessing the appropriate order or sanction must also have regard to relevant mitigating factors. In particular, it noted that there was a very significant interval between the events in question in 2008 and the time at which the order or sanction was to be assessed. It found that the delay afforded the appeal tribunal an opportunity to see what Sergeant Lee had done or not done to modify his professional behaviour. As to that, there was no suggestion that at any time while serving as a police officer, either before or after the subject corrupt conduct, Sergeant Lee had committed any other form of misconduct. Nor was there any suggestion that, apart from the subject incident, Sergeant Lee had approached and executed his duties as a police officer with anything other than the highest levels of competence, diligence and probity.
- Further, the appeal tribunal found there was no reason to doubt the multitude of highly favourable character references provided in support of Sergeant Lee.
- Among the other matters to which the appeal tribunal had regard, it identified that while Sergeant Lee’s conduct fell within the meaning of the definition of corrupt conduct, it was not in the top order of seriousness of corrupt misconduct. The assessment of the extent to which Sergeant Lee’s conduct affects public trust in him must be tempered by an appreciation of it being an isolated incident in an otherwise unblemished career. Whilst Sergeant Lee’s corrupt conduct indicated a lack of integrity or attitudes incompatible with being a police officer, the lengthy period since 2008 demonstrated ongoing adherence by Sergeant Lee to appropriate ethical standards.
- Against that, the appeal tribunal acknowledged that corrupt conduct of this nature when made public will have an adverse effect on public trust in the police force generally.
- The approach of the appeal tribunal was to balance these and other factors. It found that while there were several factors which pointed to the imposition of a more serious sanction, they were balanced by the mitigating factors. It specifically considered whether Sergeant Lee was presently fit for continued membership of the police service in considering whether or not dismissal should be ordered. Having weighed all those matters, the appeal tribunal was not satisfied that the objectives of s 219A of the CC Act would be served by dismissing Sergeant Lee from the police service and that, when it balanced the public interest considerations against Sergeant Lee’s circumstances, an order that Sergeant Lee be placed on probation met the necessary purposes.
- The ground of the CCC’s proposed appeal is that the order made was a sanction that was manifestly inadequate as it failed to achieve the purposes of discipline. A test of “manifestly inadequate” has a familiar background in the context of criminal appeals and an even longer history as a ground of appeal against an award of damages in a civil proceeding. The proposed appeal would not be either of those. The original proceeding was in the nature of a disciplinary proceeding where, as the appeal tribunal found, the essential role of the order or sanction to be made is protective in nature.
- Sergeant Lee submitted that the range of sanctions available to the appeal tribunal under s 219I of the CC Act and s 7.34 of the Police Service Administration Act constituted a legislative recognition that circumstances involving corrupt conduct will vary, thereby warranting a wide discretion as to the order or sanction that might be made. That submission should be accepted. Second, Sergeant Lee submitted that an appeal from the appeal tribunal’s order would have to surmount the familiar threshold principles for appellate interference with a discretionary order of this kind under House v The King. That submission should also be accepted.
- The CCC does not shrink from the contention that its challenge is based on the outcome of the disciplinary proceeding, not the process of reasoning of the appeal tribunal. No error that would amount to an error of law is identified in that reasoning. It is not suggested that any finding of fact was made without any evidence. It is not suggested that the appeal tribunal failed to take into account any relevant consideration or took into account any irrelevant consideration. The point is simply that ethical standards in the police service cannot be upheld unless it is made clear that anyone who is engaged in serious corrupt conduct, as a police officer, will be dismissed.
- In my view, so stated, the law would deny both the width of the discretionary power to make an order or sanction and the existence of the many relevant mitigating factors that were taken into account by the appeal tribunal in this case.
- It may be accepted that in many cases conduct of the kind engaged in by Sergeant Lee in the present case would result in an order of dismissal. But that is not because such an outcome is required in every case as a matter of law. It is because dismissal is within the range of orders or sanctions provided for and will be an appropriate order or sanction in many cases. But, in my view, it is a bridge too far to say that it is an order that must be made in all cases of corrupt conduct of the present kind or that the ethical standards in the police service cannot be upheld unless an order for dismissal is made in every such case.
- For those reasons, in my view, the CCC’s application for leave to appeal should be refused. It is unnecessary to decide whether an appeal on the proposed ground that the orders made were manifestly inadequate, would, in the circumstances, be an appeal on a question of law only.
Crime and Corruption Commission v Lee  QCATA 38.
Crime and Corruption Commission v Lee (No 2)  QCATA 151.
Crime and Corruption Act 2001 (Qld), s 219C and 219D.
Crime and Corruption Act 2001 (Qld), s 219F.
Crime and Corruption Act 2001 (Qld), s 219M(1).
Crime and Corruption Act 2001 (Qld), s 15(1)(c) as at the time of the conduct.
Crime and Corruption Commission v Lee  QCAT 483, .
Crime and Corruption Commission v Lee  QCATA 38, .
(1959) 101 CLR 298.
Crime and Corruption Commission v Lee  QCATA 38, .
 QCA 256, ,  and .
 QCA 177, ,  – .
(2019) 266 CLR 129, 148 – 149  – .
(1979) 142 CLR 531, 551 – 553.
Uniform Civil Procedure Rules 1999 (Qld), r 765(1).
see Explanatory Note to Crime and Corruption and Other Legislation Bill 2018, clause 5.
Pivovarova v Michelsen  QCA 256, .
I note that there is an appeal by right against conviction by a person convicted under s 668D (1)(a) of the Criminal Code on a ground which “involves a question of law alone”.
(1936) 55 CLR 499.
Outline of Argument, .
Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 586-588 -; Neal v The Queen (1982) 149 CLR 305, 307.
Swan Hill Corporation v Bradbury (1937) 56 CLR 746, 757.
(1936) 55 CLR 499, 505.
See Morse (Office of State Revenue) v Chan  NSWSC 1290, ; Roads and Traffic Authority (NSW) v Fletcher International Exports Pty Ltd  NSWSC 936, ; Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93, -.
- Published Case Name:
Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee
- Shortened Case Name:
Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee
 QCA 201
Sofronoff P, Morrison JA, Jackson J
15 Sep 2020