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Cavanagh v Deputy Commissioner Gollshewski[2021] QCAT 162

Cavanagh v Deputy Commissioner Gollshewski[2021] QCAT 162

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Cavanagh v Deputy Commissioner Gollshewski & Anor [2021] QCAT 162

PARTIES:

senior constable isaac cavanagh

(applicant)

v

deputy commissioner stephen gollschewski

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

OCR159-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 April 2021

HEARING DATE:

26 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The correct and preferable decision is to confirm the decision of Deputy Commissioner Stephen Gollschewski of 5 May 2020 to dismiss Senior Constable Isaac Cavanagh.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where purpose of review is to produce correct and preferable decision

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND –  where Senior Constable dismissed upon misconduct – where Senior Constable crashed a police vehicle while off-duty and intoxicated – where applicant pleaded guilty to offences – where a disciplinary declaration of dismissal was made by a Deputy Commissioner of the Queensland Police Service – whether sufficient weight given to good character and skilful career of the constable – whether dismissal is the appropriate sanction –  where Constable diagnosed with mental health conditions contributing to impugned conduct – where mitigating circumstances – whether Post Traumatic Stress Disorder and Alcohol Use Disorder mitigate sanction – where sanction maximises the protection of the public – where dismissal appropriate

Crime and Corruption Act 2001 (Qld), s 219A, s 219G, s 219H

Police Service Administration Act 1990 (Qld), s 1.4, s 7.1, s 7.2

Police Service (Discipline) Regulations 1990 (Qld), reg 3(b), reg 9(1)(f)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1)

Aldrich v Ross [2001] 2 Qd R 235

Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123

Austin v Deputy Commissioner Peter Martin [2018] QCAT 120

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Churchill v Deputy Commissioner Stewart TA05/08, Member P Richards,  28 August 2009, MSR009-08

Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384

Craig v Medical Board of South Australia [2001] SASC 169

Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151

Crime and Corruption Commission v McCarthy & Anor, Queensland Civil and Administrative Tribunal, Member Holzberger, 10 November 19, OCR246-18 and OCR321-18

Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477

Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Damien Chapman (No. 2) [2010] QCAT 636

Crime and Misconduct Commission v Swindells & Anor [2010] QCAT 490

Flanagan v Deputy Commissioner Gee & Anor [2020] QCAT 36

Francis v Crime and Corruption Commission [2015] QCA 218

Hardcastle v Commissioner of Police (1984) 53 ALR 593

Hume v Acting Assistant Commissioner Michael Keating [2015] QCAT 202

King v Australian Security Investments Commission [2018] QCA 352

Legal Services Commissioner v Fellows [2017] QCAT 337

Mazza v Deputy Commissioner Gollschewski [2018] QCAT 205

O'Keeffe v Deputy Commissioner Rynders [2010] QCAT 109

Police Service Board v Morris (1985) 156 CLR 397

Price v Deputy Commissioner Gee [2019] QCAT 179

Queensland Police Service v Compton (No. 2) [2011] QCATA 246

Quinn v Law Institute of Victoria (2007) 27 VAR 1

R v Price; ex parte Attorney-General of Queensland [2011] QCA 87

R v Tsiaras [1996] 1 VR 398

R v Yarwood [2011] QCA 367

Scott v Assistant Commissioner Peter Martin [2015] QCAT 423

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Deputy Commissioner Stewart v Dark [2012] QCA 228

Tolsher v Commissioner of Police Ian Stewart (No. 2) [2013] QCAT 590

Vann v Deputy Commissioner McGibbon [2001] Misconduct Tribunal, Member R M Bourke,  27 February 2002

Yabsley v Acting Assistant Commissioner Michael Keating (No. 2) [2015] QCAT 359

APPEARANCES & REPRESENTATION:

 

Applicant:

C Gnech of Gnech and Associates, Solicitors

First Respondent:

MD Nicholson instructed by Queensland Police Service

Second Respondent:

J Rodriguez instructed by Crime and Corruption Commission

REASONS FOR DECISION

What is this application about?

  1. [1]
    Senior Constable Isaac Cavanagh is a skilful and dedicated police officer who has served his community for more than 20 years. Sadly, his circumstances took a turn for the worst on 30 March 2017, when he crashed a police vehicle while off-duty and with a blood alcohol concentration of 0.165%.[1] The cost to repair the vehicle was $23,000.00.[2] He was suspended from duty.
  2. [2]
    At the time of the incident, Senior Constable had been suffering from Post-Traumatic Stress Disorder (PTSD) and Alcohol Use Disorder (AUD). Despite a positive prognosis and attending rehabilitation, Senior Constable Cavanagh unfortunately had a relapse on 5 December 2018 when he attended an office party and urinated from a restaurant balcony while intoxicated.[3] He was dismissed from the Queensland Police Service.
  3. [3]
    Senior Constable Cavanagh has applied to review the decision by Deputy Commissioner Stephen Gollschewski to dismiss him.[4] He accepts full responsibility for his actions and that misconduct has been substantiated.[5] Nevertheless, he submitted that a sanction of probation for 12 months together with responsible and rehabilitative conditions or transfer and management strategies is the correct and preferable decision.[6]
  4. [4]
    Dismissal is serious and an option of last resort.[7] It deprives a person of their livelihood and can impact their family.[8] However, where there is a choice of sanctions, community safety and protecting the public must prevail: the Tribunal’s protective function is paramount.[9] This means the sanction must maximise the protection of the public and reflect current community expectations for the Queensland Police Service.
  5. [5]
    Imperfection is part of what it is to be human.[10]  However, police officers are in a unique position with drink-driving because they are responsible for upholding and promoting drink-driving laws and the community is sensitive to the possibility of double-standards.[11] The community rightly expects law enforcement to protect it from the potentially tragic and irreversible consequences caused by the misuse of motor vehicles. Because of this, the Tribunal is satisfied that the most condign sanction to ensure community safety is dismissal.

Background

  1. [6]
    Senior Constable Cavanagh pleaded guilty to and was sentenced for these offences:
    1. (a)
      Driving under the influence of liquor (high range) – $1,100.00 fine and disqualified from driving for six months with no conviction recorded;
    2. (b)
      Taking a vehicle without consent -  12 months good behaviour bond with a recognisance of $800 with no conviction recorded; and
    3. (c)
      Driving without due care and attention – $300.00 fine with no conviction recorded.

What is the purpose of these proceedings and this review?

  1. [7]
    Disciplinary proceedings are not punitive. The purpose of disciplinary proceedings is not to punish Senior Constable Cavanagh for his conduct.[12] Rather, their purpose is to maintain appropriate standards of discipline by protecting the public, upholding ethical standards and promoting and maintaining officers’ and public confidence in the Queensland Police Service.[13]
  2. [8]
    The purpose of this review is to produce the ‘correct and preferable’ decision.[14] The Tribunal does this by a fresh hearing on the merits.[15] This means that Senior Constable Cavanagh does not need to prove any error in the original decision - the original decision is not presumed correct.[16]

What factors mitigate sanction?

  1. [9]
    The sanction to be imposed in disciplinary proceedings cannot be determined in an inflexible way and disregarding individual circumstances: the discretion is to be exercised in the way required by the relevant legislation.[17] The Tribunal must consider relevant mitigating factors.[18]
  2. [10]
    Delay may be relevant to mitigation.[19] In particular, it gives the Tribunal the opportunity to assess the officer’s behaviour in the intervening period.[20] Other mitigating factors include Senior Constable Cavanagh’s character, his acceptance of full responsibility for his conduct and co-operation with the disciplinary process, seeking intervention,[21] an optimistic prognosis from his psychiatrist and his potential to continue to serve.[22]
  3. [11]
    References attested to Senior Constable Cavanagh’s good character and skilful career as a police officer,[23] describing him as:
    1. (a)
      Of the utmost honesty, truthfulness and integrity;
    2. (b)
      Always going about his duties in a selfless and unassuming way;
    3. (c)
      Well-liked and respected by his colleagues and the community;
    4. (d)
      Showing a freshness and passion for the job;
    5. (e)
      Actively involved in the community;
    6. (f)
      Showing support, empathy and compassion to others;
    7. (g)
      A skilled, diligent and highly capable investigator;
    8. (h)
      Committed and dedicated to his work;
    9. (i)
      Professional, motivated and hard-working;
    10. (j)
      An exceptional role model to junior staff;
    11. (k)
      Of high moral and ethical standing;
    12. (l)
      A dedicated family man;
    13. (m)
      Performing selfless acts of kindness; and
    14. (n)
      Generous, reliable and encouraging.
  4. [12]
    Although these references predated Senior Constable Cavanagh’s relapse, the Tribunal is satisfied they show him as a good and capable police officer dedicated to serving his community. The Tribunal accepts that Senior Constable Cavanagh still has much to offer the community.[24]
  5. [13]
    Senior Constable Cavanagh has no other disciplinary history. He has more than 20 years’ distinguished service as a police officer in both New South Wales and Queensland. He has been bestowed with two medals and six awards during his career with the Queensland Police Service.
  6. [14]
    The conduct did not involve dishonesty or corruption. Other than this conduct, the evidence is that Senior Constable Cavanagh is a dedicated family man of good character. 

Do Post Traumatic Stress Disorder and Alcohol Use Disorder mitigate sanction?

  1. [15]
    The existence of a mental condition at the time of the offending and hearing may be relevant to reduce culpability for the offending and its gravity, reduce the need for specific deterrence and remove general deterrence.[25] However, the Tribunal should exercise caution in applying these principles within the context of disciplinary proceedings:

Such notions are more readily applied in a criminal justice context, where punishment and deterrence loom large, than in a disciplinary setting where protection of the public and the reputation of the QPS have a central role.[26]

  1. [16]
    Whether specific deterrence and general deterrence should be moderated or eliminated as a sentencing condition depends upon the nature and severity of the symptoms and the effect of the condition on the offender.[27]
  2. [17]
    On 30 June 2017, Senior Constable Cavanagh consulted Dr James Dodds, Consultant Psychiatrist. Dr Dodds reported his findings for Senior Constable Cavanagh as:
    1. (a)
      He had PTSD with Dissociative features and a secondary diagnosis of AUD;
    2. (b)
      His PTSD was now in partial remission and his AUD in total remission;
    3. (c)
      His diagnoses were the significant causal factor for the offending conduct;
    4. (d)
      He was extremely unlikely to re-offend in the future; and
    5. (e)
      He was attending alcohol rehabilitation.[28]
  3. [18]
    On 17 February 2018, Dr Dodds further reported for Senior Constable Cavanagh that:
    1. (a)
      His PTSD was now in near total remission and his AUD in total remission;
    2. (b)
      He continued to seek outpatient rehabilitation which he found very helpful;
    3. (c)
      He had not had any alcohol since the incident and felt much better for it;
    4. (d)
      He continued to work with Dr Dodds with further reduction of symptoms to the point that he now had very minimal post traumatic emotional symptoms;
    5. (e)
      He was completely unlikely to re-offend in the future if allowed back as an operational police officer;
    6. (f)
      The community did not need to be protected from him to an extent that he should not be a police officer anymore;
    7. (g)
      He expressed appropriate remorse and regret over his conduct;
    8. (h)
      He had good insight now about the link between his untreated PTSD and conduct;
    9. (i)
      There were compounding factors in his police career exacerbating his condition; and
    10. (j)
      He no longer had an alcohol use disorder and had no risk of relapsing.[29]
  4. [19]
    Unfortunately – despite Dr Dodds’ positive prognosis - Senior Constable Cavanagh did have a relapse on 5 December 2018, when he urinated from a restaurant balcony while intoxicated.
  5. [20]
    On 21 February 2019 and following the relapse, Dr Dodds reviewed Senior Constable Flanagan’s history and reported:
    1. (a)
      On the day of the crash, his executive control was completely hijacked by the post traumatic dissociative flashback complicated by alcoholic intoxication;
    2. (b)
      The PTSD triggered the alcohol and the alcohol activated the PTSD and the combination led to loss of self-control;
    3. (c)
      If he had not consumed alcohol it was very unlikely he would have behaved in such a way;
    4. (d)
      Continued rehabilitation to help alcohol abstinence;
    5. (e)
      His current symptomatology was virtually non-existent, and his PTSD was substantially recovered;
    6. (f)
      His treatment would ensure good decision-making in the future and good conduct as a police officer;
    7. (g)
      There was no reason now or in the future that his condition would interfere with his capacity to communicate, make operational decisions or ability to carry a firearm;
    8. (h)
      There was zero risk of PTSD relapsing; and
    9. (i)
      He was fully fit and able to return to work, fully committed and compliant with treatment. A return to work would also enhance his emotional recovery.[30]
  6. [21]
    Dr Dodds made the following observations about the alcohol relapse:

Alcohol relapse is hard to predict. In general relapses are not uncommon with alcohol. However as his PTSD with dissociative features has resolved to a substantial degree the risk of dissociative PTSD behaviour even if he drinks alcohol is now zero. As you know he experiences (sic) a relapse of alcohol on the 5 December 2018. He has explored this episode with me in detail. He has discussed this situation with me at length.

…

Contributing factors to this relapse of alcohol drinking include a lack of tolerance to alcohol from being abstinent for so long. He had string (sic) feelings of isolation and being out of the loop as it had been so long since he had seen so many people. He recalls being anxious and nervous attending but he wanted to see his friends and work colleagues. He also recalls being quite ambivalent about attending. Frustration over the delays in the QPS making a decision was also I can attest a factor.

He has had to deal with the shame and embarrassment over a lengthy period related to the events surrounding his offending conduct. He reports feeling constant stress every time his phone rings between business hours Monday to Friday and it is a private phone number or number not known to him. His instant thought is whether this is the call that he find (sic) out about his employment. 

So I would see that a combination of these events led to this alcohol use relapse. He has had no relapses since this day.[31]    

  1. [22]
    In a previous decision suspending a dismissal, the Tribunal considered “unequivocal medical evidence that mental illness was ‘the significant causal factor’ and that further offending is ‘extremely unlikely’”.[32] However, unlike that case, further offending has occurred. Although this further offending is not as serious, the choices leading to it were similar to the original offending and must reduce the exculpatory extent of the mental illness and the prognosis. 
  2. [23]
    Dr Dodds understandably and quite properly focused on Senior Constable Cavanagh’s health and welfare. However, this approach differs from disciplinary proceedings, where the focus is to protect the public, uphold ethical standards and maintain community confidence in the police service.[33] The Tribunal is not satisfied that Dr Dodds’ evidence is sufficient to eliminate moral culpability or allow a return to work in circumstances where:
    1. (a)
      Although PTSD and AUD were the “significant causal factor”, they were not an overpowering influence sufficient to militate a conscious awareness of the behaviour; [34]
    2. (b)
      No opinion was expressed on the weight to be attributed to each of the conditions or whether they were the “sole and dominant cause”,[35] and the manner in which they influenced the behaviour and ability to show insight and self-management of the onset of symptoms and possible trigger identification;
    3. (c)
      A relapse has occurred despite the positive prognosis and attempts at rehabilitation;[36] and
    4. (d)
      That relapse led to further misconduct.
  3. [24]
    Although the conditions contributed to his behaviour,[37] Senior Constable Cavanagh made a number of conscious decisions that also directly contributed – not the least of which was the decision to consume alcohol to excess, on both occasions. The behaviour concomitant with the relapse is not conducive to protecting the public and maintaining the reputation of the Queensland Police Service.[38] The Tribunal is not satisfied that Senior Constable Cavanagh’s mental health conditions are sufficient to mitigate the sanction that would otherwise be imposed.

What sanction maximises the protection of the public?

  1. [25]
    In considering sanction, protecting the public is paramount:

… the Tribunal’s protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.[39]

  1. [26]
    The parties referred to a number of authorities to assist with sanction.[40] Although helpful in providing general guidance, many authorities were factually too different, or the behaviour too removed to apply. It is not necessary for the Tribunal to make findings on every submission: the Tribunal may decide the case in a way that does not require the determination of a particular submission and can therefore be simply put aside.[41] However, the Tribunal has given careful consideration to the authorities and in particular, the principles applied in Mazza v Deputy Commissioner Gollschewski,[42] Price v Deputy Commissioner Gee,[43] and Flanagan v Deputy Commissioner Gee.[44]
  2. [27]
    The Tribunal accepts that Senior Constable Cavanagh experienced stressors leading to his behaviour. However, while this may help to explain his behaviour, the community must still be confident that he is fit to return to the unique and demanding stressors inherent to the role of a police officer:

The great majority of people behave with propriety and integrity in the absence of stress, adversity and temptation. However, it is often when a person is tested by such conditions and circumstances that his or her character is fully revealed. Police officers are commonly placed in situations of considerable stress and may also be subject to strong temptation from time to time. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.[45]

  1. [28]
    The delay between the misconduct and hearing has allowed the Tribunal the opportunity to examine Senior Constable Cavanagh’s conduct over the intervening period:[46]

When the purpose of the order is the protection of the public, the main relevance of delay is that the absence of any complaint during the period of the delay might indicate that the public does not require protection from the practitioner.[47]

  1. [29]
    Unfortunately, and unlike Price, Senior Constable Cavanagh had a relapse. This is a concern as it shows an increased risk to the community, should he suffer similar stressors:

The public needs to have confidence that the extensive powers and responsibilities reposed in 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.[48]

  1. [30]
    In this respect, the conduct has been found wanting. Senior Constable Cavanagh has endured significant personal issues that help to explain his behaviour. However, neither the police nor the public can endure behaviour from an officer that endangers safety, however explicable the behaviour may be in the circumstances and whatever personal sympathy the circumstances may invoke.[49] The community must be confident the sanction reflects and protects it from the aberrant behaviour.
  2. [31]
    In considering this, the Tribunal must reach its own decision and apply a broad public perspective on the requirements for police service discipline.[50] Nevertheless, the Tribunal is also bound to give considerable respect and weight to the Deputy Commissioner, who as a senior member of the Queensland Police Service is experienced in the ways of the police service and what is needed for the maintenance of internal discipline.[51] A Deputy Commissioner may be considered to have expertise in the managerial requirements of the police service.[52] In imposing a sanction of dismissal, the Deputy Commissioner said:

In my view, your conduct does not meet the standard of conduct the community reasonably expects of a police officer. The QPS effectively administers the traffic and criminal laws within our State and the community is entitled to expect that police officers will not conduct themselves in the way you did on 30 March 2017 and again on 5 December 2018. I have given careful consideration to the mitigating factors, including the evidence of Dr Dodds. I am not persuaded that a disciplinary sanction, other than dismissal, is appropriate or would withstand public scrutiny. I consider that a disciplinary sanction, other than dismissal, would have an adverse effect upon the reputation of the QPS and the public’s confidence in the QPS to treat such offences with appropriate gravity.

Further, I note the criminal offences to which you have pleaded guilty would have prevented your initial employment with the QPS had they occurred prior to your application to join the QPS. I consider that, in upholding ethical standards, the QPS should not seek to apply different standards once a person is sworn in. Such ‘double standards’ would also be ineffective in promoting and maintaining public confidence. Whilst not determinative of the matter, this is a further factor I have taken into consideration when determining a disciplinary sanction which is warranted.

…

I have carefully considered a disciplinary sanction of probation. However, in light of the nature and seriousness of your conduct, I consider a probationary period, even with additional managerial actions during and subsequent of probation, would be inadequate and would not withstand public scrutiny and would undermine public confidence in the QPS. Likewise, I consider a disciplinary sanction of demotion or a reduction in pay level is an inadequate disciplinary sanction in all the circumstances.

…

The QPS must strive to be the best police service for our community. Notwithstanding the mitigating factors in your favour, I do not consider that members of the community would have confidence in the QPS if a police officer who conducted themselves in the manner you did on 30 March 2017 continued as a member of the QPS. In my view, your conduct is incompatible with your continued employment with the QPS. It would not satisfy the objects of maintaining appropriate standards of discipline, protecting the public, and maintaining the confidence of the public in the QPS.

Having carefully considered the matter, I have determined to impose the disciplinary action of dismissal, effective immediately.[53] 

  1. [32]
    Like Flanagan and Mazza - where the Tribunal confirmed dismissal - although the conduct was not dishonest, corrupt or indicative of bad character, it showed a reckless indifference to community safety, potentially endangering human lives. Police officers are integral to solving the tragedies caused by misuse of motor vehicles:

The police are therefore given, and seen by the public to be granted, significant concessions in respect of their road behaviour, which concessions are not extended to the general public. As such the public are very sensitive to the possibility of double standards arising. If that perception prevails, for example by perceived inadequate sanctions meted out to police who exhibit unacceptable road use behaviour, public confidence in the QPS will be compromised.

The dangers and fatal consequences of road accidents (and as a sub-set of that, police involved traffic incidents), are well known to the public. It is something that is constantly brought to the attention of the public in news telecasts and commercial programs on free to air television almost nightly, where poor driver behaviour is commented on very critically by police on film performing mobile patrols.

The police have a significant direct involvement in reducing injury and death on the road from accidents. Police are in an apparent constant campaign to stop members of the public breaking traffic laws.

Hence when a police officer fails to comply with traffic laws, there is great potential to undermine and weaken the effectiveness of road safety campaigns and police road patrol activities trying to reduce the incidence of traffic related injuries, deaths and road trauma.

…

In the view of most members of the public, police officers should be and are expected to be above reproach in respect of obedience to traffic laws. It undermines police integrity if discipline proceedings against an officer who breaks the law is seen as inadequate. Again, there will be the spectre of a double standard potentially eroding public confidence in the police.[54]

  1. [33]
    This type of behaviour does not align with current community expectations. Dismissal is the sanction that maximises the protection of the public and reflects current community expectations to maintain confidence in the Queensland Police Service.
  2. [34]
    In imposing a sanction of dismissal, the Tribunal is acutely mindful that sadly, an inexorable consequence will be the community losing a proficient police officer with an otherwise commendable service record. Senior Constable Cavanagh still has much to offer. However, while personal factors are relevant, they do not prevail over the protective disciplinary requirements:

Focusing solely upon the… personal and mitigating factors necessarily involves an impermissible inversion that excludes the disciplinary process and the role of this Tribunal.[55]

  1. [35]
    This is not a case of ‘one-strike-and-you’re-out’.[56] Senior Constable Cavanagh had a relapse resulting in another, albeit less serious, transgression. Nothing short of dismissal will give the community confidence that it will be protected from the behaviour should another relapse recur:[57]

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 jeopardize public confidence by their conduct, nor neglect the performance of their 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.[58]

What is the correct and preferable decision?

  1. [36]
    Because dismissal is the sanction that maximises the protection of the public and reflects current community expectations, the correct and preferable decision is to confirm the decision of Deputy Commissioner Gollschewski of 5 May 2020 to dismiss Senior Constable Isaac Cavanagh.

Footnotes

[1] Police Service Administration Act 1990 (Qld), s 1.4, s 7.2; Police Service (Discipline) Regulations 1990 (Qld), reg 9(1)(f).  

[2] Statement of Isaac Cavanagh dated 22 August 2017, [11].

[3] Police Service Administration Act 1990 (Qld), s 1.4, s 7.2; Police Service (Discipline) Regulations 1990 (Qld), reg 9(1)(f).  

[4] Decision dated 5 May 2020.

[5] Applicant’s Outline of Submissions dated 18 January 2021, [3] - [4].

[6] Ibid, [8], [35].

[7] Vann v Deputy Commissioner McGibbon [2001] Misconduct Tribunal, Member R M Bourke,  27 February 2002; Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477, [5].

[8] Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151, [66]; Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, [47].

[9] Quinn v Law Institute of Victoria (2007) 27 VAR 1, [31].

[10] Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123, [47].

[11] Scott v Assistant Commissioner Peter Martin [2015] QCAT 423, [29] citing with approval O'Brien v Assistant Commissioner Gollschewski [2014] QCATA 148, Tolsher v Commissioner of Police Ian Stewart (No. 2) [2013] QCAT 590 and Hume v Acting Assistant Commissioner Michael  Keating [2015] QCAT 202.

[12] Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151, [59]; Crime and Misconduct Commission v  Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477, [9] citing with approval Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597.

[13] Police Service Administration Act 1990 (Qld), s 7.1; Crime and Corruption Act 2001 (Qld), s 219A.

[14] Crime and Corruption Act 2001 (Qld), s 219G, s 219H; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[15] Crime and Corruption Act 2001 (Qld), s 219H; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[16] Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Damien Chapman (No. 2) [2010] QCAT 636, [1] – [12]; Aldrich v Ross [2001] 2 Qd R 235, 254-255, [37].

[17] Queensland Police Service v Compton (No. 2) [2011] QCATA 246, [28].

[18]Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151, [60].

[19] Vann v Deputy Commissioner McGibbon [2001] Misconduct Tribunal, Member R M Bourke,  27 February 2002; Austin v Deputy Commissioner Peter Martin [2018] QCAT 120, [26] – [27], but contra Craig v Medical Board of South Australia [2001] SASC 169, [61] where the Court held that delay and the fact that a person may have had the matter “hanging over (their) head” for some time has no real weight in deciding what the public interest requires when the purpose of the order is to protect the public.

[20] Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151, [61] citing with approval Legal Services Commissioner v Fellows [2017] QCAT 337, [27]; Yabsley v Acting Assistant Commissioner Michael Keating (No. 2) [2015] QCAT 359, [16] – [18] citing with approval Crime and Misconduct Commission v Swindells & Anor [2010] QCAT 490, [24]; Craig v Medical Board of South Australia [2001] SASC 169, [61].

[21] Report of Dr Amir Shameli dated 20 April 2017.

[22] Queensland Police Service v Compton (No. 2) [2011] QCATA 246, [29].

[23] References of Detective Senior Constable Chris Eaton dated 5 May 2017 and 14 February 2018; References of Superintendent (Retired) Neil Behm dated 11 July 2017 and 26 February 2018; References of Sergeant Ian McDonald dated 6 July 2017 and 12 February 2018; Reference of Detective Acting Senior Sergeant David Harrison dated 12 February 2018; Reference of Sergeant Arron Rose dated 1 August 2017; Reference of Ben Whitmore undated; Reference of Ann Marie Dillon undated; Reference of Detective Inspector David Drinnen dated 1 March 2018.

[24] Vann v Deputy Commissioner McGibbon [2001] Misconduct Tribunal, Member R M Bourke, 27 February 2002.

[25] Quinn v Law Institute of Victoria (2007) 27 VAR 1, [36], [38].

[26] Price v Deputy Commissioner Gee [2019] QCAT 179, [27].

[27] R v Yarwood [2011] QCA 367, [24]; R v Tsiaras [1996] 1 VR 398, 400. 

[28] Report dated 14 July 2017.

[29] Report dated 17 February 2018.

[30] Report dated 21 February 2019.

[31] Ibid.

[32] Price v Deputy Commissioner Gee [2019] QCAT 179, [38].

[33] Crime and Corruption Act 2001 (Qld), s 219A; Police Service Discipline Regulations 1990 (Qld), reg 3(b); Francis v Crime and Corruption Commission [2015] QCA 218; Police Service Board v Morris (1985) 156 CLR 397, 411-412.

[34] Flanagan v Deputy Commissioner Gee & Anor [2020] QCAT 36, [102] – [103].

[35] Unlike Crime and Corruption Commission v McCarthy & Anor, Queensland Civil and Administrative Tribunal, Member Holzberger,  10 November 2019, OCR246-18 and OCR321-18.

[36] Unlike Price v Deputy Commissioner Gee [2019] QCAT 179 and Crime and Corruption Commission v McCarthy & Anor, Queensland Civil and Administrative Tribunal, Member Holzberger, 10 November 2019, OCR246-18 and OCR321-18.

[37] R v Yarwood [2011] QCA 367, [33], [34].

[38] Submissions on Behalf of the Second Respondent dated 8 February 2021, [31(b)].

[39] Quinn v Law Institute of Victoria (2007) 27 VAR 1, [31].

[40] Austin v Deputy Commissioner Peter Martin [2018] QCAT 120; Price v Deputy Commissioner Gee [2019] QCAT 179; Crime and Corruption Commission v McCarthy & Anor, Queensland Civil and Administrative Tribunal, Member Holzberger, 10 November 2019, OCR246-18 and OCR321-18; Crime and Corruption Commission v Lee (No. 2) [2019] QCATA 151; Scott v Assistant Commissioner Peter Martin [2015] QCAT 423; Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384.

[41] King v Australian Securities Investment Commission [2018] QCA 352, citing with approval Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[42] [2018] QCAT 205.

[43] [2019] QCAT 179.

[44] [2020] QCAT 36.

[45] Deputy Commissioner Stewart v Dark [2012] QCA 228, [35].

[46] Crime and Misconduct Commission v Swindells & Anor [2010] QCAT 490, [24]; Legal Services Commissioner v Fellows [2017] QCAT 337, [27].

[47] Craig v Medical Board of South Australia [2001] SASC 169, [61].

[48] R v Price; ex parte Attorney-General of Queensland [2011] QCA 87, [53].

[49] Scott v Assistant Commissioner Peter Martin [2015] QCAT 423, [46].

[50] Aldrich v Ross [2001] 2 Qd R 235, 254-255 [37], 257-258; Austin v Deputy Commissioner Peter Martin [2018] QCAT 120, [11]; Tolsher v Commissioner of Police Ian Stewart (No. 2) [2013] QCAT 590, [15].

[51] Aldrich v Ross [2001] 2 Qd R 235, 254-255 [37], [42]-[43], 257-258; O'Keeffe v Deputy Commissioner Rynders [2010] QCAT 109, [26]; Austin v Deputy Commissioner Peter Martin [2018] QCAT 120, [11].

[52] Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477, [19].

[53] Disciplinary Hearing Findings and Reasons of Deputy Commissioner S W Gollshewski dated 5 May 2020, [29(nn)], [29(oo)], [29(tt)], [30], [31].

[54] Mazza v Deputy Commissioner Gollshewski [2018] QCAT 205, [51], [52], [53], [54], [56].

[55] Queensland Police Service v Compton (No. 2) [2011] QCATA 246, [26], citing with approval Churchill v Deputy Commissioner Stewart TA05/08, Member P Richards, 28 August 2009, [57].

[56] Queensland Police Service v Compton (No. 2) [2011] QCATA 246, [36].

[57] Unlike Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, where the Tribunal expressly referred to “extraordinary setbacks and adversity” and a combination of mitigating factors that were “unusually strong”- including a positive prognosis not undermined by intervening conduct as in the current case.

[58] Police Service Board v Morris (1985) 156 CLR 397, 412.

Close

Editorial Notes

  • Published Case Name:

    Cavanagh v Deputy Commissioner Gollshewski & Anor

  • Shortened Case Name:

    Cavanagh v Deputy Commissioner Gollshewski

  • MNC:

    [2021] QCAT 162

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    28 Apr 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
4 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Cite 3 - [2001] 2 Qd R 235
Cite 4 - [2001] 2 Qd R 235
Assistant Commissioner Hollands v Tolsher [2016] QCATA 123
2 citations
Jump To
Cite 1 - [2016] QCATA 123
Cite 2 - [2016] QCATA 123
Austin v Deputy Commissioner Martin [2018] QCAT 120
5 citations
Jump To
Cite 1 - [2018] QCAT 120
Cite 2 - [2018] QCAT 120
Cite 3 - [2018] QCAT 120
Cite 4 - [2018] QCAT 120
Cite 5 - [2018] QCAT 120
Beale v Government Insurance Officer of New South Wales (NSW) (1997) 48 NSWLR 430
2 citations
Jump To
Cite 1 - (1997) 48 NSWLR 430
Cite 2 - (1997) 48 NSWLR 430
Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
4 citations
Jump To
Cite 1 - [2010] QCAT 384
Cite 2 - [2010] QCAT 384
Cite 3 - [2010] QCAT 384
Cite 4 - [2010] QCAT 384
Craig v Medical Board of South Australia [2001] SASC 169
4 citations
Jump To
Cite 1 - [2001] SASC 169
Cite 2 - [2001] SASC 169
Cite 3 - [2001] SASC 169
Cite 4 - [2001] SASC 169
Crime & Misconduct Commission v Deputy Commissioner, Queensland Police Service & Damien Chapman (No 2) [2010] QCAT 636
2 citations
Jump To
Cite 1 - [2010] QCAT 636
Cite 2 - [2010] QCAT 636
Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151
6 citations
Jump To
Cite 1 - [2019] QCATA 151
Cite 2 - [2019] QCATA 151
Cite 3 - [2019] QCATA 151
Cite 4 - [2019] QCATA 151
Cite 5 - [2019] QCATA 151
Cite 6 - [2019] QCATA 151
Crime and Misconduct Commission v Deputy Commissioner Barnett, Queensland Police Service [2013] QCAT 477
4 citations
Jump To
Cite 1 - [2013] QCAT 477
Cite 2 - [2013] QCAT 477
Cite 3 - [2013] QCAT 477
Cite 4 - [2013] QCAT 477
Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490
3 citations
Jump To
Cite 1 - [2010] QCAT 490
Cite 2 - [2010] QCAT 490
Cite 3 - [2010] QCAT 490
Deputy Commissioner Stewart v Dark [2012] QCA 228
2 citations
Jump To
Cite 1 - [2012] QCA 228
Cite 2 - [2012] QCA 228
Flanagan v Gee [2020] QCAT 36
3 citations
Jump To
Cite 1 - [2020] QCAT 36
Cite 2 - [2020] QCAT 36
Cite 3 - [2020] QCAT 36
Francis v Crime and Corruption Commission [2015] QCA 218
2 citations
Jump To
Cite 1 - [2015] QCA 218
Cite 2 - [2015] QCA 218
Hardcastle v Commissioner of Police (1984) 53 ALR 593
2 citations
Jump To
Cite 1 - (1984) 53 ALR 593
Cite 2 - (1984) 53 ALR 593
Hume v Acting Assistant Commissioner Keating [2015] QCAT 202
2 citations
Jump To
Cite 1 - [2015] QCAT 202
Cite 2 - [2015] QCAT 202
King & Ors v Australian Securities and Investments Commission [2018] QCA 352
2 citations
Jump To
Cite 1 - [2018] QCA 352
Cite 2 - [2018] QCA 352
Legal Services Commissioner v Fellows [2017] QCAT 337
3 citations
Jump To
Cite 1 - [2017] QCAT 337
Cite 2 - [2017] QCAT 337
Cite 3 - [2017] QCAT 337
Mazza v Deputy Commissioner Gollschewski [2018] QCAT 205
3 citations
Jump To
Cite 1 - [2018] QCAT 205
Cite 2 - [2018] QCAT 205
Cite 3 - [2018] QCAT 205
O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148
1 citation
Jump To
Cite 1 - [2014] QCATA 148
O'Keeffe v Deputy Commissioner Rynders [2010] QCAT 109
2 citations
Jump To
Cite 1 - [2010] QCAT 109
Cite 2 - [2010] QCAT 109
Police Service Board v Morris & Martin (1985) 156 CLR 397
3 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
Cite 3 - (1985) 156 CLR 397
Price v Deputy Commissioner Gee [2019] QCAT 179
6 citations
Jump To
Cite 1 - [2019] QCAT 179
Cite 2 - [2019] QCAT 179
Cite 3 - [2019] QCAT 179
Cite 4 - [2019] QCAT 179
Cite 5 - [2019] QCAT 179
Cite 6 - [2019] QCAT 179
Queensland Police Service v Compton (No 2) [2011] QCATA 246
5 citations
Jump To
Cite 1 - [2011] QCATA 246
Cite 2 - [2011] QCATA 246
Cite 3 - [2011] QCATA 246
Cite 4 - [2011] QCATA 246
Cite 5 - [2011] QCATA 246
Quinn v Law Institute of Victoria Ltd (2007) 27 VAR 1
4 citations
Jump To
Cite 1 - (2007) 27 VAR 1
Cite 2 - (2007) 27 VAR 1
Cite 3 - (2007) 27 VAR 1
Cite 4 - (2007) 27 VAR 1
R v Price; ex parte Attorney-General [2011] QCA 87
2 citations
Jump To
Cite 1 - [2011] QCA 87
Cite 2 - [2011] QCA 87
R v Tsiaras [1996] 1 VR 398
2 citations
Jump To
Cite 1 - [1996] 1 VR 398
Cite 2 - [1996] 1 VR 398
R v Yarwood [2011] QCA 367
3 citations
Jump To
Cite 1 - [2011] QCA 367
Cite 2 - [2011] QCA 367
Cite 3 - [2011] QCA 367
Scott v Assistant Commissioner Martin [2015] QCAT 423
4 citations
Jump To
Cite 1 - [2015] QCAT 423
Cite 2 - [2015] QCAT 423
Cite 3 - [2015] QCAT 423
Cite 4 - [2015] QCAT 423
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
2 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590
3 citations
Jump To
Cite 1 - [2013] QCAT 590
Cite 2 - [2013] QCAT 590
Cite 3 - [2013] QCAT 590
Yabsley v Acting Assistant Commissioner Keating (No 2) [2015] QCAT 359
2 citations
Jump To
Cite 1 - [2015] QCAT 359
Cite 2 - [2015] QCAT 359

Cases Citing

Case NameFull CitationFrequency
Cavanagh v Gollschewski (No 2) [2023] QCATA 362 citations
Crime and Corruption Commissions v Assistant Commissioner Maurice Carless [2022] QCATA 1212 citations
1

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