Sutton v Acting Assistant Commissioner Glen Horton
[2022] QCAT 76
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- Unreported Judgment
- Sutton v Acting Assistant Commissioner Glen Horton[2022] QCAT 76
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Sutton v Acting Assistant Commissioner Glen Horton[2022] QCAT 76
Sutton v Acting Assistant Commissioner Glen Horton[2022] QCAT 76
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Sutton v Acting Assistant Commissioner Glen Horton [2022] QCAT 76 |
PARTIES: | scott sutton |
(applicant) | |
v | |
A/assistant commissioner glen horton | |
(respondent) | |
APPLICATION NO/S: | OCR239-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 7 March 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Traves |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – whether leave should be granted to adduce new evidence in review of police disciplinary decision – where review of substantiation and sanction relating to alleged improper conduct in making inappropriate comments of a sexual nature to female staff members of the general store and of inappropriate physical contact with one female staff member – where complainant owned the store – where competing versions of events – where new evidence said to show relationship between complainant and others in the community who ‘had it in’ for applicant – whether applicant knew or could be reasonably expected to know of the information the subject of the application – whether new evidence relevant and credible – likely value of the new evidence Crime and Corruption Act 2001 (Qld), s 219P, s 219O, s 219Q, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20 Clarke v Japan Machines (Australia) Pty Ltd [1994] QdR 404 Gee v Deputy Commissioner Ian Stewart [2011] QCAT 402 Germanos v Cosgrove [2013] QCATA 203 Pavlovic v Commissioner of Police [2007] 1 QdR 344 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Gilshenan & Luton Legal Practice |
Respondent: | MD Nicolson, counsel, instructed by QPS Legal Unit |
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
- [1]The substantive application seeks a review of the decision of the respondent made on 29 May 2020 in relation to substantiation of Matters 1 (a) and 1 (b) and the sanction imposed.
- [2]Sergeant Sutton seeks leave to adduce evidence that was not before the respondent when the decision was made. The respondent submits the application for new evidence should be dismissed but that, if leave was granted, that it be given leave to adduce evidence in reply
- [3]For the reasons that follow, I have decided not to grant leave to adduce the new evidence.
Nature of review of police disciplinary actions
- [4]Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) gives the Tribunal power to review decisions where that jurisdiction has been conferred by an enabling Act.
- [5]Section 219P of the Crime and Corruption Act 2001 (Qld) (CC Act) provides that an aggrieved person for a reviewable decision may apply to QCAT within 28 days after receiving notice of the decision.
- [6]‘Reviewable decision” for the purposes of the CC Act includes a decision made under the Police Service Administration Act 1990 (Qld) (PSAA) listed in schedule 1, column 1 of the CC Act.
- [7]Schedule 1, column 1 includes a decision under Part 7, division 4 of the PSAA:
- (a)That a disciplinary charge, or any other ground for disciplinary action has been proved in relation to an officer; and
- (b)To impose a disciplinary sanction on an officer.
- (a)
- [8]Section 219Q(1) provides that the Tribunal’s review is by way of rehearing on the evidence (‘original evidence’) given in the proceeding before the original decision-maker. However, under s 219Q(2), the Tribunal may give leave in certain circumstances to adduce new evidence.
- [9]Section 219Q provides:
- (1)A review of a reviewable decision is by way of rehearing on the evidence ("original evidence") given in the proceeding before the original decision-maker ("original proceeding").
- (2)However, QCAT may give leave to adduce fresh, additional or substituted evidence ("new evidence") if satisfied—
- (a)the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or
- (b)in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.
- (a)
- (3)If QCAT gives leave under subsection (2), the review is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.
- (a)
- [10]The principles that underpin the discretion to allow the admission of new evidence under s 219Q are similar to those governing the discretion to allow new evidence on appeal. It has been held that new evidence on appeal will be received ordinarily only if special grounds exist. It must be shown that the evidence could not have been obtained with reasonable diligence at the trial; that the evidence would probably have an important influence on the result, though not necessarily decisive; and it must be apparently credible.[1]
The charge
- [11]The charge against Sergeant Sutton was:
Matter 1
- [12]That between 1 January 2019 and 4 September 2019 your conduct was improper in that you;
- (a)made inappropriate comments of a sexual nature to female staff members of the Kilkivan General Store and Kilkivan Rural Store;
- (b)made inappropriate physical contact with a female staff member of the Kilkivan General Store.
- (a)
- [13]The comments were allegedly made to Mrs McCallum and her employees, Ms Richardson and Ms Trott.
Matter Two
- [14]That on 4 August 2019 your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you failed to provide a timely and professional response to a victim of crime.
- [15]This matter related to an incident involving the theft of a utility and the victim’s wallet and phone which were inside the car at the time, from the Kilkivan General Store. Although Sergeant Sutton was not on duty until 12 midday, he was in receipt of an allowance which was in lieu of payments for on call and recall to duty. The victim waited 1.5 hours before being collected by his employer.
- [16]Sergeant Sutton admits saying “Any fitter and I’d be you” to Ms Tott but otherwise denies Matter One and Matter Two.
The new evidence
- [17]The new evidence consists of:
- (a)an affidavit of Ms Regan Cooksley sworn 29 September 2021;
- (b)an affidavit of Sergeant Joseph Coates of the QPS sworn 8 September 2020; and
- (c)an affidavit of the applicant sworn 28 September 2020.
- (a)
- [18]Ms Cooksley works at the Widgee General Store. She said that Sergeant Sutton’s neighbour (Emily) attended the store and told her that he had shot at her dog and that she was going to get him fired from his job.
- [19]Sergeant Coates says in his affidavit that on 28 December 2018 he questioned Ms Cooksley and she said that Emily had made disparaging comments about Sergeant Sutton and had told her that he had discharged his firearm 20 metres away from her and that he was “going down because of it”.
- [20]Sergeant Sutton says in his affidavit that he knows Emily and the complainant, Mrs McCallum were friends. He says he told Sergeant Coates in December 2018 that he believed Emily was spreading rumours about him and trying to get him removed from his position and that Sergeant Coates said he would look into it for him. Sergeant Sutton said several days after this he received a phone call from an Acting Inspector who told him, in effect, to not say anything about the rumours and to keep his powder dry. Consequently, Sergeant Sutton decided to not raise the matter again. Sergeant Sutton says that after he was sanctioned and after he filed his application for review, Sergeant Coates told him that he had actually spoken to an employee at Widgee General Store and taken contemporaneous notes. Sergeant Sutton then informed his legal representative of the information.
Submissions
- [21]The applicant submitted that the new evidence sought to be adduced by Ms Cooksley and Sergeant Coates was not known to him at the time of the original hearing and could not reasonably have been known by him. He was not to know that Sergeant Coates had made enquiries with Ms Cooksley and taken contemporaneous notes of their conversation.
- [22]He submits that the evidence supports that there were rumours about him and a dislike of him in the community before a formal complaint was made and support the proposition that members of the community other than the complainant wanted him removed from his position as Acting Senior Constable of the Kilkivan Police Station.
- [23]The applicant had originally submitted to the respondent that the complainant had developed a dislike of him and that she had discussed her dislike of him with many community members. The applicant had submitted that the true motivation for her complaint was to have him removed as the police officer at Kilkivan. The applicant submits that the new evidence supports the likelihood that there was a general dislike of him prior to the formal complaint and that the dislike was not only from Ms McCallum. Further, that it supports that the true motivation of the complaint was a longstanding dislike of him by the members of the community who were well known to Mrs McCallum and who desired to have him removed.
- [24]The applicant submits that the new evidence is likely to have an impact on the Tribunal’s decision, including being capable of having a bearing on Constable Sutton’s credibility and defence. Given the primary issue will be whether the comments were made or staff were inappropriately touched, it is submitted that the new evidence will be necessary to assist the Tribunal in making the correct and preferable decision.
- [25]The respondent says that the applicant had ample opportunity after the disciplinary proceeding commenced in March 2020 to make enquiries with Sergeant Coates, who he knew was going to look into the matter of rumours. The respondent points out that the applicant was in touch with Sergeant Coates as evidenced by the letter of reference he obtained from him and which he attached to his submissions on sanction filed on 23 June 2020. The respondent submits that the Tribunal cannot be satisfied the applicant did not know or could not reasonably be expected to know of the existence of the new evidence at the original proceeding and that the question of prior opportunity to raise such matters is relevant.
- [26]Further, the respondent submitted that the applicant has not demonstrated any special circumstances that would make it unfair to disallow the application for new evidence. They say he was legally represented at the disciplinary hearing, he had ample opportunity to provide submissions and did so and has not shown any extenuating circumstances to show why he could not obtain the new evidence for the original proceeding.
Consideration
- [27]In the exercise of my discretion, I have decided to refuse the application for new evidence.
- [28]I am not satisfied that the proposed evidence was evidence which was not known, or could not reasonably have been expected to have known, by Sergeant Sutton at the time of the original proceeding on 29 May 2020.[2] The first affidavit of Sergeant Coates refers to a conversation he had with Ms Cooksley on 28 December 2018, approximately a year and a half before the original hearing. That affidavit appears to depose to the conversation referred to by Ms Cooksley in her affidavit. The second affidavit refers to a conversation with Sergeant Coates in December 2018 about the subject of Emily’s conduct. There appears to have been a deliberate decision not to use the information. In any event, there were prior opportunities for him to raise the proposed evidence.[3] Further, and in the alternative, the applicant has not demonstrated any special circumstances that would make it unfair to refuse the application to adduce the proposed evidence.[4]
- [29]Secondly, I think it unlikely that the evidence will have an important influence on the result. It is not sufficiently probative. It may go to a motive for Emily to dislike Sergeant Sutton, but it is not sufficiently probative for staff members of the Kilkivan General Store and Rural Store to fabricate evidence. I find that the proposed evidence lacks relevance and probity.
- [30]Accordingly, I refuse the application.
Footnotes
[1] Clarke v Japan Machines (Australia) Pty Ltd [1994] QdR 404 at 408 cited by Wilson J in Germanos v Cosgrove [2013] QCATA 203 at [16]; Pavlovic v Commissioner of Police [2007] 1 QdR 344 at [30]-[36].
[2] The disciplinary proceeding commenced on 4 March 2020 and the applicant filed submissions in his defence on 15 April 2020 and 23 June 2020.
[3] Gee v Deputy Commissioner Ian Stewart [2011] QCAT 402 at [19]-[21].
[4] Crime and Corruption Act 2001 (Qld) s 219Q(2)(b).