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Crime and Corruption Commission v Horton and Didsman[2022] QCAT 35

Crime and Corruption Commission v Horton and Didsman[2022] QCAT 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Crime and Corruption Commission v Horton and Didsman [2022] QCAT 35

PARTIES:

CRIME AND CORRUPTION COMMISSION

(applicant)

v

ACTING ASSISTANT COMMISSIONER GLENN HORTON APM

(first respondent)

And

SENIOR CONSTABLE DAVID DIDSMAN

(second respondent)

APPLICATION NO/S:

OCR100-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

The correct and preferable decision is to:

  1. Set aside the disciplinary sanction ordered on 27 March 2020 by the first respondent.
  2. Order that instead, the second respondent be subject to the following sanction:
    1. (a)
      Suspended demotion for a period of 12 months;
    2. (b)
      Temporary local transfer commencing 1 March 2022 for a period of twelve months to a position other than: a position with a Road Policing Unit (with the exception of performing or assisting in Forensic Crash Investigation duties); or a General Duties position which would require the Second Respondent to undertake a ‘first response’ role; or where he would reasonably be expected to engage in urgent duty driving;
    3. (c)
      Mentoring with a senior officer, of at least Senior Sergeant rank, appointed by the District Officer - Bundaberg District, to assist the Second Respondent to improve, and to provide guidance and feedback on, his leadership and decision-making skills;
    4. (d)
      The Second Respondent is not to perform higher duties, or relieve in any position outside of his redeployed position (with the exception of performing or assisting in Forensic Crash Investigation duties), for the twelve months from the sanction taking effect;
    5. (e)
      Completion of training relating to the urgent duty driving and pursuits policies of the Queensland Police Service within 12 months of the making of this order, and completion of a driver training unit refresher within that 12 months or as soon as possible after that time.

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 – application for review of sanction of police officer by Crime and Corruption Commission – sanction agreed between parties – where police officer embarked upon a pursuit of perceived offenders in police vehicle

Crime and Corruption Act 2001 (Qld), s 219A, s 219O, s 219P, s 219S, schedule 1

Penalties and Sentences Regulation 2015 (Qld), s 3

Police Service Administration Act 1991 (Qld), part 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), chapter 2, division 3.

Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 492

Crime and Misconduct Commission v Barnett and Eaton (No 2) [2011] QCAT 161

Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 530

Crime and Corruption Commission v Inspector Lee D Jeffries and Anor [2017] QCAT 331

DA v Deputy Commissioner Martin [2018] QCAT 10

Rohweder v Assistant Commissioner Keating [2016] QCAT 347

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

  1. [1]
    The Crime and Corruption Commission (CCC) has applied to the Tribunal under           s 219P of the Crime and Corruption Act 2001 (Qld) (the CC Act) to review the decision of Acting Assistant Commissioner Horton (AAC Horton) to impose a disciplinary sanction on the second respondent, Senior Constable Didsman                 (SC Didsman).
  2. [2]
    The relevant conduct of SC Didsman concerned his driving of a police vehicle in pursuit of suspected offenders, at Cherwell and other places near Bundaberg, on 23 September 2018.

Background

  1. [3]
    In a decision made on 25 March 2020, AAC Horton found that two disciplinary matters[1] were substantiated against SC Didsman concerning his driving of a police vehicle in pursuit of suspected offenders in two matters as follows:
    1. (a)
      Matter 1- SC Didsman’s conduct was improper in that he drove a police vehicle in a manner that exposed himself and other road users to unjustifiable risk of injury; and
    2. (b)
      Matter 2 - SC Didsman’s conduct was improper in that he drove a police vehicle in a culpable and negligent manner whilst conducting unauthorised and unjustifiable pursuits of vehicles.
  2. [4]
    That decision is not challenged on this review. However, subsequently, on 27 March 2020, AAC Horton imposed a disciplinary sanction on SC Didsman of 12 penalty units. Each penalty unit at that time had the value of $133.45;[2] that is, effectively a fine of $1601.40.
  3. [5]
    On 22 April 2020, the CCC applied to the Tribunal for review of that sanction, contending that it was not the 'correct and preferable decision' as it was:
    1. (a)
      inadequate;
    2. (b)
      does not adequately meet the need for general or personal deterrence;
    3. (c)
      does not reflect the seriousness of SC Didsman's conduct;
    4. (d)
      does not meet the purposes of disciplinary proceedings.
  4. [6]
    The parties informed the Tribunal that there were associated criminal proceedings on foot concerning the disciplinary matter, and the parties applied, on a consent basis, for the matter to be adjourned pending the outcome of the criminal proceedings. In July 2020, the Tribunal made an order to that effect.
  5. [7]
    In June 2021, the CCC advised the Tribunal, with the consent of the other parties, that the associated criminal proceedings had been resolved and the parties had reached a joint position on the proposed outcome of this application for review.
  6. [8]
    The associated criminal proceedings were that SC Didsman was charged by the Queensland Police Service with two counts of dangerous operation of a vehicle contrary to s 328A of the Criminal Code.[3] 
  7. [9]
    The outcome of the criminal proceedings against SC Didsman was that on 18 March 2021, he appeared in the Bundaberg Magistrates Court when the Queensland Police Service offered no evidence on the charges, which were then dismissed.
  8. [10]
    In an application for an order by consent to be made by the Tribunal, filed on 10 June 2021, the parties to this review jointly sought consent orders (amended by me to insert the references to the parties used in this decision) that:
  1. (1)
    The disciplinary sanction ordered on 27 March 2020 by [AAC Horton] be set aside.
  2. (2)
    [SC Didsman] be subject to the following sanction:
  1. (a)
    Suspended demotion for a period of 12 months;
  1. (b)
    Temporary local transfer commencing 19 June 2021 for a period of twelve months to a position other than: a position with a Road Policing Unit (with the exception of performing or assisting in Forensic Crash Investigation duties); or a General Duties position which would require the Second Respondent to undertake a "first response" role; or where he would reasonably be expected to engage in urgent duty driving;
  1. (c)
    Mentoring with a senior officer, of at least Senior Sergeant rank, appointed by the District Officer - Bundaberg District, to assist [SC Didsman] to improve, and to provide guidance and feedback on, his leadership and decision-making skills; 
  1. (d)
    [SC Didsman] is not to perform higher duties, or relieve in any position outside of his redeployed position (with the exception of performing or assisting in Forensic Crash Investigation duties), for the twelve months from the sanction taking effect;
  1. (e)
    Completion of training relating to the urgent duty driving and pursuits policies within 12 months of the making of this order, and completion of a driver training unit refresher within that 12 months or as soon as possible thereafter.
  1. [11]
    Although the parties have reached a consent position about the outcome of this review, it is necessary for the Tribunal to exercise its discretion as to the appropriate outcome. This is due to the statutory framework concerning the review which I will now describe.

The statutory framework 

  1. [12]
    Section 219P(1) of the CC Act allows the CCC to apply to the Tribunal to seek a review of a 'reviewable decision’. Section 219O(1) provides that a ‘reviewable decision’ is a decision made under the PSAA that is mentioned in schedule 1, column 1 of the CC Act. Schedule 1, column 1 of the CC Act provides that a decision under part 7, division 4 of the PSAA to impose a disciplinary sanction or professional development strategy on an officer is a reviewable decision.
  2. [13]
    The Tribunal’s review jurisdiction for a proceeding of this kind is conferred by chapter 2, division 3 (ss 17- 25) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). Section 20(1) of that Act requires that the decision to be made by the Tribunal on a review is the 'correct and preferable decision'.
  3. [14]
    Section 19 of the QCAT Act requires that in the review jurisdiction, the Tribunal 'stands in the shoes of the original decision-maker', exercising the powers available to the original decision-maker under the relevant legislation.[4]
  4. [15]
    That requires a review of the powers available to AAC Horton in imposing the disciplinary sanction on SC Didsman.
  5. [16]
    Section 7.1 describes the purposes of part 7 of the PSAA on the disciplinary regime for police. I have found it instructive in considering the appropriate sanction in this case. It is as follows:

7.1 Main purposes of part

The main purposes of this part are—

  1. (a)
    to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and
  1. (b)
    to ensure appropriate standards of discipline are maintained within the service to—
  1. (i)
    protect the public; and
  1. (ii)
    uphold ethical standards within the service; and
  1. (iii)
    promote and maintain public confidence, and officers’ confidence, in the service.
  1. [17]
    The purpose of disciplinary proceedings under chapter 5, part 2 of the CC Act is to similar effect and is described in s 219A as follows:

219A Purposes of disciplinary proceedings

The purposes of providing for disciplinary proceedings are—

  1. (a)
    to protect the public; and
  1. (b)
    to uphold ethical standards within units of public administration and the police service; and
  1. (c)
    to promote and maintain public confidence in the public sector.
  1. [18]
    Under part 7 of the PSAA, the range of disciplinary sanctions available to the decision-maker are limited by the rank of the decision-maker. For an Assistant Commissioner in the position of AAC Horton, the options relevantly include demotion, ‘local transfer’ and a fine.[5] A 'local transfer' is relevantly defined in s 7.38 to be:
  1. (a)
    a transfer to another position, at the same location in Queensland, that involves a change in the nature of the subject officer’s duties.
  1. [19]
    The disciplinary sanction proposed in paragraph 2(b) above is a disciplinary sanction of that kind.
  2. [20]
    The 'disciplinary action’ which is the subject of part 7 of the PSAA means 'disciplinary proceedings’ or the imposition of a 'professional development strategy’ under part 7.[6] A professional development strategy is defined in s 7.3 of the PSAA to mean:

… a requirement that the subject officer do 1 or more of the following things—

  1. (a)
    undertake mentoring for a stated period not longer than 6 months;
  1. (b)
    undertake closer supervision for a stated period not longer than 6 months;
  1. (c)
    comply with additional reporting obligations for a stated period not longer than 6 months;
  1. (d)
    complete internal training;
  1. (e)
    complete external training or professional development, at the expense of the service or the subject officer;
  1. (f)
    undertake counselling, whether provided within the service or externally, at the expense of the service or the subject officer;
  1. (g)
    receive guidance;
  1. (h)
    undertake a temporary reassignment of duties for a stated period not longer than 6 months;

Note—

See also section 7.5(1) in relation to a temporary reassignment of duties.

  1. (i)
    undertake or complete another program, development or strategy, at the expense of the service or the subject officer and with the subject officer’s agreement;
  1. (j)
    anything else prescribed by regulation.
  1. [21]
    Paragraphs 2(c), (d) and (e) of the proposed orders are instances of a professional development strategy within the meaning of this definition.
  2. [22]
    Neither the specific strategies listed in s 7.3, nor professional development strategies generally are included in the range of disciplinary sanctions contained in s 7.34. 
  3. [23]
    Section 7.9(2) provides that the Commissioner of the Police Service must consider whether to impose a professional development strategy on the subject officer. The purpose of a professional development strategy is given by s 7.9(3), in that the Commissioner may impose a professional development strategy under s 7.9(3):
  1. (a)
    to reduce the risk of recurrence of similar conduct; or
  1. (b)
    to improve the subject officer’s performance; or
  1. (c)
    for any other purpose.
  1. [24]
    Disciplinary sanctions and professional development strategies are separate statutory creatures in the PSAA, but each of them falls under the umbrella of ‘disciplinary’ action’. However, there is no doubt that a decision-maker may impose both a disciplinary sanction and also a professional development strategy, once the decision-maker has found that a ground to take disciplinary action against a police officer has been proven under s 7.27.[7]

Details of the disciplinary matters

  1. [25]
    The 'Disciplinary Proceeding Notice’ dated 28 January 2020 issued by AAC Horton to SC Didsman sets out further particulars of the two alleged disciplinary matters. In the written submissions made on behalf of SC Didsman to AAC Horton dated 14 February 2020, SC Didsman admitted both disciplinary matters, and that they constituted misconduct at law.[8] He also admitted the further and better particulars in respect to each matter. There is therefore no contest as to the factual basis for the allegations of the disciplinary matters.
  2. [26]
    On the evening concerned, on 23 September 2018, SC Didsman was performing traffic related duties on the Bruce Highway at Cherwell. He was performing these duties as a single officer road policing unit. In this role, he was responsible for the implementation and maintenance of safe driving initiatives and to provide policing services. For the driving which is the basis of each disciplinary matter, SC Didsman activated his body worn video, which recorded the relevant driving.
  3. [27]
    The particulars of the first disciplinary matter are that at about 6:04pm, SC Didsman attempted to intercept an offender for a speeding offence. He detected a Mitsubishi Mirage travelling at a speed of 140kmh in a 100kmh zone, by using a mobile radar fitted to the police vehicle. He gave chase, but the Mitsubishi vehicle failed to stop.  SC Didsman activated the police lights and sirens. He continued to pursue the Mitsubishi for about three minutes from the initial attempt to intercept, during which time the Mitsubishi was seen to cross to the incorrect side of the road in front of an oncoming truck at a speed of 180kmh.
  4. [28]
    SC Didsman then stopped his police vehicle and provided details to police communications regarding an evasion offence.
  5. [29]
    A short time later, he was continuing patrols to locate the Mitsubishi when he observed a gold Holden Commodore stationary at the roadside. Upon approaching the Commodore, the vehicle left, and SC Didsman attempted to intercept that vehicle. He activated the lights and sirens of his police vehicle, at which time the Commodore immediately travelled onto the incorrect side of the road and accelerated away from the police vehicle.
  6. [30]
    SC Didsman then accelerated the police vehicle up to the Commodore and fell in behind it to continue the pursuit. His body worn video records that he contacted police communications seeking details of the Commodore, but did not advise police communications that he was pursuing the vehicle, nor used police communications to coordinate a response to intercept the vehicle.
  7. [31]
    SC Didsman ascertained from police communications that the Commodore was stolen. While following the Commodore, he turned off the vehicle emergency lights and sirens and continued to follow it and attempted to intercept the vehicle for approximately four further minutes before stopping the police vehicle.
  8. [32]
    The crux of the first disciplinary matter is that the pursuits of the vehicles were unauthorised and unjustified, as against the requirements of the Operational Procedures Manual, chapter 15 - Driving of service vehicles. An investigation report[9] into SC Didsman’s driving records the reason for him attempting to intercept the Mitsubishi was for a speeding offence which is a 'non-pursuable matter’ under section 15.5.2 of the Operational Procedures Manual. For pursuit of the Commodore, the investigation report[10] considered that the failure of SC Didsman to notify the Police Communications Centre of the pursuit was a failure to comply with the requirement to do so under section 15.5.5 of the Manual.  
  9. [33]
    By contrast, the crux of the second disciplinary matter is that SC Didsman’s driving whilst conducting the pursuits was done in a culpable and negligent manner. 
  10. [34]
    The particulars of the second disciplinary matter arise out of the same facts as the first. However, the substance of the allegation is that he drove the police vehicle in the pursuits of the Mitsubishi and Commodore in a 'culpable and negligent manner whilst conducting unauthorised and unjustifiable pursuits of vehicles.'
  11. [35]
    The particulars of the culpable and negligent driving concern excessive speed. The allegations are that during the pursuits, SC Didsman exceeded the speed limit of 100kmh by driving at speeds in excess of 150kmh, and up to speeds of 180kmh.
  12. [36]
    The body worn video also shows that during the pursuit of the Mitsubishi,                     SC Didsman can be seen holding a 'Q-Lite' device against the steering wheel and conducting a search of that device whilst travelling at 157kmh.
  13. [37]
    In pursuing the Mitsubishi vehicle, the body worn video records that he overtook that vehicle on the incorrect side of the road at over 180kmh and then pulled back in front of the Mitsubishi, then braked hard in front of it. The allegation here is that                     SC Didsman was not authorised to conduct this manoeuvre.
  14. [38]
    Disciplinary matter 2 also includes an allegation that SC Didsman was not authorised to conduct a manoeuvre in pursuing the Commodore. The manoeuvre concerned is that without any emergency lights or sirens activated, he drove at a speed up to 157kmh, crossed on to the wrong side of the road up beside the Commodore, turned on his torch and shone it through the passenger window of the police vehicle towards the Commodore driver. He again overtook the Commodore and initiated a blocking manoeuvre to slow the vehicle down by braking in front of it.
  15. [39]
    On 11 December 2018, a professional development strategy was implemented to restrict SC Didsman’s driving privileges in relation to the conduct which gave rise to disciplinary matter 2.

Written submissions of SC Didsman

  1. [40]
    Whilst admitting the particulars of the two disciplinary matters, the written submissions made on behalf of SC Didsman to AAC Horton in response to the Disciplinary Proceeding Notice containing the allegations against him point out some circumstances relied upon in mitigation of the disciplinary matters.
  2. [41]
    SC Didsman submits that the two pursuits in question occurred on the same shift. He submits this is significant, as there was no intervening advice or warnings provided to him about his non-compliance with the pursuits policy.[11] SC Didsman submits that this is not a situation where he was corrected by a supervisor about his driving, only to repeat those same breaches. I accept this is the case.
  3. [42]
    Next, SC Didsman submits that the two pursuits were relatively short, and occurred over a matter of minutes. They did not occur in built up areas, or locations where pedestrian traffic was likely. Rather, they occurred on major roadways which were well designed and capable of supporting the speeds travelled at. They were on a roadway on which he had extensive experience in driving.[12] I accept these submissions as well, except for the submission that roads are designed to support speeds well in excess of the signed speed limit. 
  4. [43]
    Finally, SC Didsman submits that the driving was a case where he had to make quick decisions in an operational environment and is guilty of nothing more than overzealousness in the performance of his duties.

Findings by AAC Horton on disciplinary matters

  1. [44]
    In his decision dated 25 March 2020, AAC Horton found that each of the disciplinary matters was substantiated. He found that:

The driving behaviour exhibited by [SC Didsman] is disturbing, displaying a recklessness and disregard for both the safety of the member and presented significant risk for other road users. 

  1. [45]
    He found that SC Didsman had reacted inordinately to what could be considered routine duty. AAC Horton however, also found that the behaviour resulted from over- zealous policing, rather than an intent or display of dishonest or other integrity-related issues. I agree. 

Personal particulars of SC Didsman

  1. [46]
    The joint submissions[13] by the parties to this review dated 10 June 2021 in support of the consent orders sought, refer to the personal particulars of SC Didsman. 
  2. [47]
    He was inducted into the Police Academy in 1990 and at the time of the disciplinary decision by AAC Horton, had reached the rank of Senior Constable 2.10. He has been a police officer for over 30 years.
  3. [48]
    His supervising officer advised that there was no history of a similar incident nor any other issues with his officer work performance. SC Didsman provided references attesting to his good character and work ethic. The references (by other police officers who have served with him) indicate that the conduct was out of character. The references also refer to the remorse felt by SC Didsman for the conduct concerned.
  4. [49]
    Since the incidents, SC Didsman has undertaken self-education on the requirements of the pursuit policy,[14] which suggests some insight into his conduct, and demonstrates self-improvement. 

Joint submissions on disciplinary sanction 

  1. [50]
    The joint submissions of the parties to this review submit that the proposed sanction should include the need for both specific and general deterrence. That is, deterrence to SC Didsman specifically, and general deterrence to other police officers who may consider committing the same, or similar, conduct. The parties submit that the proposed sanction would best achieve the protective purposes of the police disciplinary regime.[15]
  2. [51]
    The parties submit that whilst the decision of the Tribunal on this review must be the Tribunal’s independent decision, the Tribunal has held that in disciplinary proceedings where parties jointly propose a sanction, the Tribunal ought not to depart from the proposed sanction unless it falls outside the permissible sanction range for the relevant conduct, given the protective rather than punitive purpose of disciplinary proceedings.[16] In Commonwealth v Director, Fair Work Building Industry Inspectorate,[17] the High Court has also approved this approach in sanctions for civil disciplinary proceedings generally. 
  3. [52]
    The joint submissions refer to decisions of the Tribunal, all involving improper use of police vehicles which describe the range of appropriate sanctions in cases of that type. 
  4. [53]
    In Crime and Misconduct Commission v Barnett and Eaton (No 2),[18] the Tribunal imposed a sanction of reduction in pay point of a Senior Sergeant 4.4 to 4.2 for a period of nine months. 
  5. [54]
    The parties submit that the circumstances in Eaton were more serious than that of     SC Didsman in that:
    1. (a)
      Eaton involved higher speeds over a significantly shorter distance. The speeds in that case were approximating 225kph along the Bruce Highway in a 100kph zone, and 150-160kph in a 60kph zone;
    2. (b)
      Eaton's pursuit occurred along the Bruce Highway and also in a suburban area. By contrast, SC Didsman did not enter a suburban area in the pursuits concerned;
    3. (c)
      at the relevant time, Eaton was a Senior Sergeant and was officer-in-charge of the Pine Rivers Traffic Branch. I would add, because of that position, he had a responsibility to set a good example for more junior officers. SC Didsman was a Senior Constable working unsupervised;
    4. (d)
      Eaton had previously been involved in a pursuit in north Queensland in 2003, which resulted in several fatalities. SC Didsman, on the other hand, had not previously been the subject of disciplinary proceedings for a pursuit related matter.   
  6. [55]
    I agree that the circumstances in Eaton were more serious than the present case.
  7. [56]
    In Crime and Misconduct Commission v Chapman & Anor,[19] the circumstances were also more serious than the present case, in my view. In particular:
    1. (a)
      in Chapman, the pursuit involved a motorcyclist dying, and a pillion passenger being seriously injured;
    2. (b)
      Chapman continued the pursuit for some 660 metres after a decision was made to terminate it. 
  8. [57]
    There are no factors similar to these applicable to SC Didsman. In Chapman, the Tribunal imposed a sanction of a two pay point reduction for a period of two years. That sanction took into account a five-year delay in determination of the matter, Chapman's exemplary record of service prior to the incident, and his admission of the relevant conduct. 
  9. [58]
    In Rohweder v Assistant Commissioner Keating,[20] the Senior Constable concerned, of  20 years’ experience, was also subject to a disciplinary charge, relevantly of engaging in an unjustified pursuit. The Tribunal confirmed a sanction of demotion from Senior Constable 2.9 to Constable 1.6 for three months. Provided he completed a positive Performance Development Agreement with no further reported breaches of discipline or misconduct during that time, he was eligible to return to the rank of Senior Constable 2.9.
  10. [59]
    The unauthorised pursuit in that case involved the police officer driving through a red light[21] in a suburban or at least semi-suburban area around the Nicklin Way at the Sunshine Coast.[22] Although no injuries resulted from that pursuit, what made the conduct worse than that of SC Didsman, was that at the relevant time, Rohweder was on suspension for another driving related disciplinary matter (pursuit at high speed in breach of policy, the sanction for which was a two pay point reduction, for 12 months). Rohweder was therefore well aware of the pursuit policy, and that he acted in disregard of it. 
  11. [60]
    In Crime and Corruption Commission v Inspector Lee D Jeffries and Anor, the police officer the subject of the disciplinary charges was Senior Constable Cole. As the senior officer in an unmarked police service vehicle, he drove through four intersections against red traffic lights without completely stopping or without activating the emergency lights and siren in three of those intersections. Although Cole indicated to Police Communications that he was not ‘in pursuit' or engaged in 'urgent duty driving', he did not activate the emergency lights but drove at speeds of 144kph in a 60 kph zone, where the road was wet, 161kph in a 100 kph zone, and 83 kph in a 40kph zone. He was following a vehicle, but did not attempt to intercept it. The conduct took place over an extended distance of approximately 33 kilometres, and for a period of over 25 minutes.[23] He had, prior to that incident received managerial guidance on the appropriate conduct during pursuits or urgent duty driving.[24] 
  12. [61]
    In my opinion, that conduct is worse than that of SC Didsman. The Tribunal imposed a sanction of a salary increment being deferred for a period of two years, but after that time, being eligible to progress subject to the normal industrial requirements. He was also to undertake a training session on the Police Service pursuit and urgent duty driving policies and procedures.
  13. [62]
    Finally, the parties referred to DA v Deputy Commissioner Martin.[25] In that case, the Tribunal upheld a sanction of dismissal. However, the driving in that case was exacerbated by the officer’s untruthfulness in the disciplinary process and also a previous disciplinary history which had resulted in him being dismissed, but then replaced by a period of suspension.
  14. [63]
    As it was, the driving in that case consisted of the officer whilst off duty, and driving in his private vehicle, and with his young daughter in the vehicle, observing an off road motorcycle travel past him. He pursued the motorcycle and then the incident continued until a collision occurred between his vehicle and the motorcycle.
  15. [64]
    He was charged with dangerous operation of a motor vehicle and pleaded guilty to the charge. His driver licence was suspended for six months and he was fined $2000.
  16. [65]
    It is difficult to compare DA with the present case, given the exacerbating factors in DA.

Consideration and analysis

  1. [66]
    Comparison of SC Didsman's case with the other Tribunal decisions referred to above leads me to the conclusion that his driving conduct is not as serious as any of those cases. The closest comparative is the decision in Cole, but the driving by SC Didsman is less serious than in that case.
  2. [67]
    It does appear to me that the jointly proposed sanction specifically recognises the conduct of SC Didsman and has about it an educative, guidance and rehabilitative aspect which meets the purposes of the disciplinary provisions of the PSAA, especially as described in the purposes of part 7 of that Act, contained in s 7.1, as set out above. The sanction also recognises the dangerous nature of pursuits, and is also directed to addressing the seriousness of that conduct. The proposed sanction  recognises the mitigating facts referred to in this decision, and SC Didsman's previous good record, and his good character as vouched for by the references.
  3. [68]
    I therefore make the orders set out on the first two pages of this decision. Those orders are made in terms jointly proposed by the parties, but with small adjustments for language. The temporary local transfer will also commence on 1 March 2022, to allow time for implementation of that part of the orders.

Footnotes

[1]  Under part 7 of the Police Service Administration Act 1991 (Qld) (the PSAA).

[2]  Section 3 of the Penalties and Sentences Regulation 2015 (Qld) current until 24 May 2020.

[3]  Joint submissions of the parties filed on 10 June 2021, paragraph 4.

[4]  Subject to an exception in the circumstances of reviews of disciplinary findings concerning police officers, in that the Tribunal is not bound by the limitations connected to the rank of the officer at first instance, but may exercise the disciplinary sanctions available to the Commissioner of the Police Service under part 7, division 5 of the PSAA if the Tribunal finds a ground for disciplinary action has been proved against the 'subject officer' and sets aside the decision of the original decision-maker and substitutes another decision – see s 219S of the CC Act.

[5]  Section 7.35(2)(c) of the PSAA.

[6]  Section 7.3 PSAA.

[7]  See ss 7.30(2)(a), 7.33, 7.33(3)(c) and especially 7.42(b).

[8]  Page 4, paragraph 3.

[9]  Dated 15 May 2019, at paragraph 7.10. The report was filed with the Tribunal on 14 January 2022 as part of the documents provided to the Tribunal under s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[10]  Paragraph 7.15.

[11]  Contained in chapter 15 of the Operational Procedures Manual.

[12]  Paragraph 15 of the written submissions.

[13]  Paragraphs 13-15.

[14]  Paragraphs 17-23 of his written submissions.

[15]  Paragraph 26 of the joint submissions.

[16] Crime and Corruption Commission v Inspector Lee D Jeffries and Anor [2017] QCAT 331 at [23].

[17]  (2015) 258 CLR 492 at 507, [58].

[18]  [2011] QCAT 161.

[19]  [2011] QCAT 530.

[20]  [2016] QCAT 347.

[21]  Paragraph [31].

[22]  Paragraph [5].

[23]  Paragraph [8].

[24]  Paragraph [9].

[25]  [2018] QCAT 10.

Close

Editorial Notes

  • Published Case Name:

    Crime and Corruption Commission v Horton and Didsman

  • Shortened Case Name:

    Crime and Corruption Commission v Horton and Didsman

  • MNC:

    [2022] QCAT 35

  • Court:

    QCAT

  • Judge(s):

    Member Sammon

  • Date:

    28 Jan 2022

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
Clyne v New South Wales Bar Association (2015) 258 CLR 492
2 citations
Jump To
Cite 1 - (2015) 258 CLR 492
Cite 2 - (2015) 258 CLR 492
Crime and Corruption Commission v Inspector Lee D Jeffries [2017] QCAT 331
2 citations
Jump To
Cite 1 - [2017] QCAT 331
Cite 2 - [2017] QCAT 331
Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161
2 citations
Jump To
Cite 1 - [2011] QCAT 161
Cite 2 - [2011] QCAT 161
Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 530
2 citations
Jump To
Cite 1 - [2011] QCAT 530
Cite 2 - [2011] QCAT 530
DA v Deputy Commissioner Martin [2018] QCAT 10
2 citations
Jump To
Cite 1 - [2018] QCAT 10
Cite 2 - [2018] QCAT 10
Rohweder v Acting Assistant Commissioner Keating [2016] QCAT 347
2 citations
Jump To
Cite 1 - [2016] QCAT 347
Cite 2 - [2016] QCAT 347

Cases Citing

Case NameFull CitationFrequency
Atkinson v Horton [2025] QCAT 392 citations
Crime and Corruption Commission v Horton & Didsman [No. 2] [2022] QCAT 3112 citations
1

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