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Assistant Commissioner Hollands v Tolsher QCATA 123
Assistant Commissioner Stephen Hollands v Tolsher  QCATA 123
Assistant Commissioner Stephen Hollands
14 June 2016
15 August 2016
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where a police officer breached a court order requiring him to only drive vehicles fixed with an interlock device – where the police commissioner commenced disciplinary proceedings – where the reviewer found the police officer’s conduct did not constitute misconduct – whether a police officer commits misconduct in every case by breaking the law without reasonable excuse.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – whether the reviewer took into account irrelevant considerations – whether it was ‘unreasonable’ for the reviewer to characterise the conduct as a disciplinary breach but not misconduct.
Crime and Corruption Act 2001 (Qld) s 219L
Police Service Administration Act 1990 (Qld) s 1.4
Police Service (Discipline) Regulations 1990 (Qld) rr 3, 9
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 4(b), 20
Aldrich v Ross  2 Qd R 235
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Briginshaw v Briginshaw (1938) 60 CLR 336
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Dennis v Watt (1942) 43 SR (NSW) 32
Deputy Commissioner Stewart v Dark  QCA 228
Edwards v Bairstow  AC 14
Flegg v Crime and Misconduct Commission & Anor  QCA 376
Francis v Crime and Corruption Commission  QCA 218
House v The King (1936) 55 CLR 499
Legal Services Commissioner v Hewlett  LPT 3
Mathieu v Higgins & Anor  QSC 209
Metcalfe v Hall & Anor  QCATA 43
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 61
Moyna v Secretary of State for Work and Pensions  1 WLR 1929
O'Brien v Assistant Commissioner Gollschewski  QCATA 148
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Schauer v Banham Misconduct Tribunal – Appeal No. 11 of 1996
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
Tolsher v Acting Assistant Commissioner Stephen Hollands  QCAT 391
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Warren v Coombes (1979) 142 CLR 531
Watson v Acting Deputy Commissioner McCallum  QCAT 165
Woden Valley Glass v Psaila (1993) 122 ALR 387
Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279
APPEARANCES and REPRESENTATION (if any):
Mr S McLeod of Counsel.
Mr C Gnech, Solicitor, Queensland Police Union.
REASONS FOR DECISION
- This is a police commissioner’s appeal against the legality of a review tribunal’s decision that driving a police car on duty contrary to a court-imposed immobiliser condition for a prior drink driving offence (conduct) was a disciplinary breach under the Police Service Administration Act 1990 (Qld) (PSA Act) or less serious than misconduct.
The statutory concept of police misconduct
- Section 9(1)(f) of the Police Service (Discipline) Regulations 1990 (Qld) (regulations) specifies seven grounds for disciplinary actions against non-commissioned police officers. A disciplinary breach is one of them. Misconduct is another. So is conviction for an indictable offence. Committing a summary (e.g. traffic) offence, however, is not.
- The stated objects of the regulations are to “provide for a system of guiding, correcting, chastising and disciplinary subordinate officers” and to “ensure the appropriate standards of discipline within the Queensland Police Service (police service) are maintained so as to protect the public; to uphold ethical standards… and to promote and maintain public confidence” in the police service.
- Under the definition in s 1.4 of the PSA Act:
“breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct and
misconduct is … conduct that – is (a) disgraceful, improper or unbecoming an officer or … (c) … does not meet the standard of conduct the community reasonably expects of a police officer.”
- In Mathieu v Higgins & Anor, the term “misconduct” was defined in an ambulance service disciplinary enactment as “disgraceful or improper conduct”. Although expressed in the alternative, it was treated as being “coloured” by “disgraceful”, to mean more than mere impropriety, performance deficiencies or misjudgement.
- On this approach, when used in a similar context, “improper” may be construed as denoting wilful indifference or wanton abuse of professional privileges and confidences or a real lack of integrity capable of eroding the trust and confidence in the officer’s moral character.
- Thus, the issue here may be accurately characterised as whether the conduct is so “morally and socially blameworthy” that nothing short of a misconduct finding is called for.
- In 2013, Sgt. Tolsher drove to work at the Goodna Police Station in his own car (fixed with an interlock device). While still on duty, he discovered the whereabouts of a group of suspects he’d been chasing for property offences for many weeks and thought they could be “caught napping” and prevented from committing further offences. He says he felt pressure from the officer in charge to perform; especially as he had only recently returned to work from suspension and was keen to impress.
- After contacting the Oxley CIB and being told no one could assist him, he drove an unmarked police vehicle (not fitted with an interlock) to apprehend the group. As a direct result of Sgt. Tolsher’s intervention, six of the group were charged with more than 122 property and crimes of violence.
- Sgt. Tolsher did not attempt to drive the unfitted vehicle to avoid detection for further alcohol-related driving offences. He submitted to – and passed – breath tests immediately before and after driving the police vehicle. He pleaded guilty to driving a police car contrary to the road traffic rules and was fined (unwittingly triggering a suspended permanent demotion order).
- Sgt. Tolsher accepted that his professional conduct contravened the police code of conduct and standards and was contrary to the departmental policy of obedience to State laws but denied it was defined misconduct.
- However, in an administrative process, the commissioner’s delegate found misconduct proved on the basis that:
Making the community safer, including stopping road trauma is one of the key objectives of the QPS. Reducing the incidence of drink driving through interlock restrictions is a relatively recent government initiative. The driving of a QPS vehicle without submitting to an interlock breath test in contravention of a license restriction may be perceived as conflicting with road safety efforts and undermine confidence in the QPS. The reputation of, and community confidence in, the Service is placed at risk when an officer commits such an offence.
- The internal decision was reviewed by QCAT. On the question whether the conduct should be categorised as misconduct, the review tribunal accepted Sgt. Tolsher’s submission that a reasonable member of the community would not regard his driving against the restrictions as misconduct by concluding:
“ Each case must be considered on its own facts when classifying the conduct as the conduct as misconduct or a breach of discipline.
 I accept that in this case it was Sergeant Tolsher’s ‘commitment and enthusiasm’ to do the job of policing that caused him to engage in the conduct concerned. Whilst it is no doubt unacceptable and such would amount to a breach of discipline, I find that in the particular circumstances of this case, the conduct does not ‘put it over the line’ so far as the reasonable expectations of the public are concerned.
 I am not satisfied that it is the correct and preferable decision is to categorise the conduct as misconduct.”
- The tribunal set aside the reviewable decision and ordered the matter to be returned to the applicant for consideration. The commissioner appeals on a question of law.
- As the review decision was a discretionary one, the High Court’s statement of principle in House v The King (House) applies in deciding whether to overturn it. This means that the commissioner must establish that some specific legal error was made in making the decision or that a substantial wrong has occurred due to latent unreasonableness or some other implied but undiscoverable appellable error.
- Thus, the fate of the commissioner’s appeal is to be assessed against the facts found by the review tribunal unless demonstrated legal error has the effect of vitiating them or meant that a required finding of fact was omitted.
- If the review decision was reasonably open on those facts, the proper inference is that the review tribunal correctly understood its role and function, correctly applied the statutory definition in the circumstances and, therefore, there is no legitimate ground for disturbing it even if the appeal tribunal itself would not have come to the same conclusion on the same material.
The opposing arguments on appeal
- It is contended for Sgt. Tolsher that, considering the adverse professional consequences for him and, when viewed in light of all the circumstances of the case, a fair and reasonable member of the community would not see his conduct as being improper or substandard to the extent required for a misconduct finding.
- Counsel for the commissioner, however, argues that regardless of its circumstances, motive or ultimate utilitarian value, driving illegally without a reasonable excuse (as the guilty plea acknowledges), is, by its very nature, disgraceful, improper and substandard conduct unbecoming of a police officer sworn to obey and uphold (not break) the law.
- He submits that, even accepting that the conduct was prompted by a genuine but mistaken belief that he had no practical alternative, overlooking or underestimating it could be seen as conflicting with police road safety campaigns to the point of undermining confidence in the service.
The decided cases
- Clearly, a characteristic professional duty of a police officer is to uphold the law. His or her capacity and commitment in that regard will be thrown into question where he himself is guilty of a substantial contravention of the law but one of the law’s most important roles in this domain is to moderate our expectations so that the standards we set for others are not unrealistic or overly onerous.
- To this end, the Court of Appeal decision in Deputy Commissioner Stewart v Dark (Dark) makes it clear that both the nature of the conduct (lying to a superior officer) and the circumstances in which they occurred (repeated breaches of domestic violence orders a two month period) must be considered with a view to determining whether they reveal such a lack of integrity or want of character that the conduct is likely to substantially erode the trust and confidence that colleagues and/or members of the public are entitled to repose in the officer, or otherwise significantly undermine the police officers effectiveness to deter like offending by others.
- The conduct considered in Dark and what Sgt Tolsher did are much the same in principle. Both involved disobedience by a police officer of a restrictive court order. It is a difference without a distinction in my mind that one case did not have any direct connection to police duty, official capacity or status, or authority but while there is a clear employment nexus in the other provided by the use of a departmental vehicle for law enforcement purposes. On this basis, substantially the same disciplinary consequences should follow from a QCAT proceeding, because one of the ways the tribunal achieves the objects of dealing with matters fairly and justly is treating like cases alike.
- In Schauer v Banham, a police pursuit driver who slowed down and proceeded with caution into an intersection against a red light but did not stop (as she was strictly required to do by the traffic regulations and departmental instructions) was held not liable for misconduct. In his reasons for decision, Dr JR Forbes said:
No doubt the Appellant’s failure to stop is a breach of discipline but is it “misconduct” within the meaning of s 1.4 of the PSA (Act)? Regulation 9 of the Police Service (Discipline) Regulations recognises that breaches of discipline often fall short of “misconduct”; while all misconduct is a breach of discipline not every breach of discipline is misconduct. Misconduct is merely one of seven grounds of disciplinary action and on a generally ascending scale it comes just below the stigma of a “conviction… of an indictable offence”. The more serious the charge the more careful the Tribunal must be before it finds itself satisfied that the person charged is guilty.
The legislature cannot have intended any and every breach of discipline to be classifiable as “disgraceful” or “show(ing) unfitness to be an officer” or even below “the standard of conduct (which) the community reasonably expects of a police officer”. There is a world of difference between the conduct of the Appellant in this case and the misbehaviour of the officer dealt with in Watts v Aldrich, an appeal recently dismissed by my colleague Mr Gaffy QC. That great divide is not truly reflected in the difference between dismissal (as in Watts’ case) and a substantial loss of salary, as in this case. Often the distinction between “official misconduct” under the Criminal Justice Act and “misconduct” under the PSAA is difficult to discern but it would be absurd to apply that comment to the conduct now in question.
Reasonable members of the community do not regard police officers as professionally unfit or sub-standard just because they fail to obey every jot and tittle of departmental instructions. Reasonable people may say: “He could have done better there” or: “That was a bit risky” without implying the stigma of “misconduct”, which is a pejorative charge to be used with due discrimination. At a time when people exercising authority in “exposed” positions incur much negative criticism it is neither fair nor in the public interest to wield disciplinary powers in such a way that police officers may reasonably think: “The less I do, the less risk of getting in trouble”.
- If not all traffic infringements or policy contraventions are examples of police misconduct then, logically, not all traffic offences are either. Sometimes they will be and sometimes they won’t – it all depends on the totality of the relevant circumstances, including their comparative seriousness and level of culpability.
- No doubt, the community does not expect its police to drink and drive and is understandably “sensitive to the possibility of double standards”, but in O'Brien v Assistant Commissioner Gollschewski, the Hon J B Thomas was not prepared to say that “any conviction of a police officer for driving over the prescribed limit… must automatically establish misconduct within the definition.” He did, however, go on to add that:
“…barring something very exceptional, a police officer who does so fails to “meet the standard of conduct the community reasonably expects of a police officer”. (emphasis added)
- Overall, this approach is generally consistent with the view that police misconduct is essentially fault-based rather than absolute as the commissioner contends, but, in my opinion, to say “something very exceptional is needed for a police officer driving over the limit not to be liable for misconduct” sets the bar needlessly high – even for safety-related traffic infringements, and there is no basis for applying it to lesser violations.
- Even if “something very exceptional” is required for Sgt. Tolsher to avoid a misconduct finding, he claims that there is.
Alleged specific errors
- On the commissioner’s case, the reviewer mistook Sgt. Tolsher’s conduct for a breach of discipline instead of misconduct due to three suggested appellable errors identified as:
- failing to appreciate the gravity of the conduct in question;
- acting on the irrelevant consideration that the conduct was engaged in out of a “commitment and enthusiasm” for policing; and
- not giving any weight to the commissioner’s delegate’s stated doubts about the submission that the conduct was justified by actual as distinct from perceived urgent or emergent circumstances.
Dedication to duty
- The complaint at  (b) is directed at the reviewer’s statement at  that:
“… it was Sergeant Tolsher’s ‘commitment and enthusiasm’ to do the job of policing that caused him to engage in the conduct concerned. Whilst it is no doubt unacceptable and such would amount to a breach of discipline…”
- Admirable though it is, devotion to duty can only explain and sometimes mitigate behaviour; but it cannot alter its legal character. However, read properly and in context, there is no indication in the reviewer’s reasons of any confusion between the cause of the conduct and its inherent quality.
The inadequate weight ground
- The criticism at  (c) derives from remarks the Hon J B Thomas made prior to the enactment of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) in Aldridge v Ross which, in light reviewer’s obligation to come to her own view as to the correct and preferable decision according to law via a fresh hearing on the merits, no longer carry the same authority in tribunal proceedings as they once did.
- In any case, nothing in the reasons suggest the reviewer failed to give the commissioner’s expressed view the respect it relevantly deserved as the chief executive officer of the police service who is responsible and ultimately accountable for maintaining discipline within the ranks.
Failure to appreciate the gravity of the conduct
- The task of classifying conduct by standards of seriousness or, if needs be, characterising circumstances as “very exceptional” or not are contestable matters of degree and evaluation. As such, they are capable of being decided either way without legal error unless the answer is contrary to the only one reasonably available.
- Likewise whether or not impugned conduct reveals a sufficient lack of integrity or want of character in all of the circumstances or substantially erodes the trust and confidence that other members of the service and the community in general are entitled to repose in a police officer are inferred facts.
- Although framed as a specific legal error, it is really asserting that appellate interference is called for by the residual principle in House to overturn the characterisation of Sgt. Tolsher’s conduct as a mere disciplinary breach falling short of the line for misconduct as “plainly unjust” because it is impliedly marred by some unidentifiable legal error in the discretionary exercise. It looks to me very much like a thinly veiled attack on the objective reasonableness of the review decision in the Attorney-General (NSW) v Quin sense; that is, that no reasonable reviewer with due regard to the public confidence needed in the Queensland Police Service could have found Sgt. Tolsher’s actions to be any less serious than misconduct.
- However described or presented, an appeal against the reasonableness of an ultimate inference or discretionary value judgment involves meeting a “stringent” test. A QCAT appeal is not a merits review to be decided by way of rehearing in which substitute inferences can be drawn. The question is not whether the facts do or do not warrant the ultimate inference or conclusion of misconduct, but whether it was legally wrong to find otherwise on the primary facts.
- It is not usually legally wrong for a tribunal to arrive at a conclusion one way instead of the other when applying a word or concept of indeterminate meaning to a given set of facts or body of evidence.
- Nor is it alleging an error of law to say that a disciplinary tribunal failed to appreciate the gravity of conduct in question. That is an implied assertion that the finding in issue is perverse or ignores the probative force of evidence that is all one way, which in truth is a merits of facts complaint.
“…the circumstances in which (an appellate body) may reverse those conclusions are … confined to those few cases where the trial judge's decision is “glaringly improbable” or “contrary to compelling inferences”…”
- Thus, it is not appellable error to take one view of facts in preference over a rival that was equally open (but not compellingly so). Moreover, an evaluative judgment or application of a yardstick only amounts to an error of law where it strays outside the permissible range or so-called “either way” margin. It is not enough for an appellant to present a case of an inexplicably perverse result. The application of the relevant legal test, principle, rule or concept to the facts has to be demonstrably unreasonable or lacking an evident and intelligible justification and, thus, “plainly unjust” – for example, because the application was not open.
- As Justice Branson explained in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd:
“Not every grievance entertained by a party, or its legal advisers, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were (an appellate body) to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgement, being set aside or varied. This result would be achieved, if at all, only if … an ultimate fact in issue has been wrongly determined. The same applies with respect to steps in the primary … process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in the process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.”
- In my opinion, the case against the challenged decision is not “overwhelming”, which it needs to be.
- Sgt. Tolsher’s conduct, though admittedly unacceptable, was not necessarily “improper” in the misconduct sense; nor was it disgraceful or dishonourable by nature. I respectfully adopt paragraphs  –  of Sgt. Tolsher’s written submissions that the reviewer:
- was tasked with conducting a merits-based review to make the correct and preferable decision by way of fresh hearing;
- properly identified and considered all of the relevant facts and gave them appropriate weight (including adequately considering the delegate’s view of the conduct without being distracted by irrelevancies such as Sgt. Tolsher’s enthusiasm); and
- correctly stated and applied the legal test to the facts as found in concluding that it was not correct and preferable in the circumstances to characterise the conduct as misconduct.
- The reviewer clearly formed the impression that Sgt. Tolsher’s impulsive decision to drive contrary to his license restriction while lacking judgment does not necessarily cast doubt on his overall character, integrity or fitness to wear a police uniform or make him unworthy of his current rank in opting to break a lesser law to enforce a greater one.
- Nor in the tribunal’s opinion was it professionally substandard and even if it was not such as to be likely to substantially erode public confidence in him or the service. Others might reasonably even strongly disagree, but that is in the nature of forensic opinions and is not a valid basis for interfering with it on appeal.
- The law of police misconduct is (or should be) nuanced enough to measure a man’s character and integrity in part, at least, by reference to its socially beneficial consequences. It also recognises the simple truth that imperfection is part of what it is to be human and that like the rest of us police are still morally better than the worst thing they have ever done.
- This ground of appeal, therefore, also fails.
- As appellable error has not been demonstrated in either the reasoning process or its result, the appeal is dismissed.
Tolsher v Acting Assistant Commissioner Stephen Hollands  QCAT 391.
 Regulation 3.
  QSC 209.
 See, for example, Pillai v Messiter (No 2) (1989) 16 NSWLR 197.
 Deputy Commissioner Stewart v Dark  QCA 228  – .
 See Crime and Corruption Act 2001 (Qld) s 219L.
 (1936) 55 CLR 499, 505.
 Flegg v Crime and Misconduct Commission & Anor  QCA 376 -.
 cf Legal Services Commissioner v Hewlett  LPT 3  and  (de Jersey CJ).
  QCA 228 .
 cf Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279, 286.
 QCAT Act s 3(b).
 Ibid s 4(b).
 Misconduct Tribunal – Appeal No. 11 of 1996.
 Ibid, 15-16.
 The seriousness of the charge is one of several criteria set out in the classic passage in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J.
 Appeal No 9 of 1996, Mr Gaffy QC, 3 and 21 February 1997.
  QCATA 148.
 See (c) of the definition of misconduct in the Police Service Administration Act.
 Watson v Acting Deputy Commissioner McCallum  QCAT 165 -.
  2 Qd R 235 .
 QCAT Act s 20.
 Dennis v Watt (1942) 43 SR (NSW) 32.
 Edwards v Bairstow  AC 14, 36.
 (1990) 170 CLR 1, 36-37.
 Francis v CCC  QCA 218  citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 .
 Woden Valley Glass v Psaila (1993) 122 ALR 387; cf Warren v Coombes (1978-79) 142 CLR 531.
 Edwards v Bairstow  AC 14, 23; Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 452.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155-156.
Dearman v Dearman (1908) 7 CLR 549, 561.
 (1986) 7 NSWLR 1, 10; citing Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53, 57.
 Moyna v Secretary of State for Work and Pensions  1 WLR 1929.
 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
 (2002) 55 IPR 354, 355-356.
 cf Metcalfe v Hall & Anor  QCATA 43 .
 cf Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 61 .
- Published Case Name:
Assistant Commissioner Stephen Hollands v David Tolsher
- Shortened Case Name:
Assistant Commissioner Hollands v Tolsher
 QCATA 123
15 Aug 2016