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Officer JXR v Deputy Commissioner Gollschewski[2018] QCATA 55

Officer JXR v Deputy Commissioner Gollschewski[2018] QCATA 55

CITATION:

Officer JXR v Deputy Commissioner Gollschewski [2018] QCATA 55

PARTIES:

Officer JXR

(Applicant/Appellant)

 

v

 

Deputy Commissioner Stephen Gollschewski

(Respondent)

APPLICATION NUMBER:

APL244-16

MATTER TYPE:

Appeals

HEARING DATE:

31 March 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan, Presiding

Senior Member Howard

DELIVERED ON:

26 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. (i)   On its own initiative and with the consent of the parties, the Appeal Tribunal directs that the Tribunal must make the necessary correction pursuant to section 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to its orders dated 29 July 2016 to reflect that it did not find Matters 1b)a) and 1b)b) to be substantiated;
  1. All procedural requirements under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) for the making of the correction are waived.
  1. The Appeal is allowed.
  1. (i)               The Tribunal’s decision dated 29 July 2016 on substantiation of the disciplinary charge in respect of Matter 1d)b) dot point 2 is set aside;
  1. The following decision is substituted: Matter 1d)b) dot point 2 is not substantiated.
  2. Subject to the correction of the Tribunal’s decision as directed in order 1 and subject to order 3(i) and (ii) above, the Tribunal’s decision on substantiation of the disciplinary charge is otherwise confirmed.
  1. The decision of the Tribunal dated 29 July 2016 in respect of sanction is confirmed.
  1. Publication of the material before the appeal tribunal and the reasons for decision of the appeal tribunal other than in de-identified format are prohibited, except as authorised by this order:
  1. (i)
    the appeal tribunal’s reasons for decision may be published in a de-identified format as follows:
  1. identification of JXR, his former wife, their extended family members, Senior Constable OL, and Constable AE must be avoided.
  2. Other persons and police officers may be identified provided that publication of their names does not tend to identify JXR.
  1. (ii)
    The parties to the proceeding may disclose copies of the material before the appeal tribunal to third parties if lawfully requested or required to do so, including to prospective employers, employment agencies, government departments, and professional bodies and boards.
  2. (iii)
    Both parties have liberty to apply in respect of any proposed amendments to this non-publication order within 14 days of receiving these orders.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – whether error of law in police disciplinary matter – where appeal relating to substantiation of disciplinary charge and sanction imposed – whether mitigating factors may be taken into account in deciding whether misconduct is substantiated

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – whether error in exercise of discretion – whether error in imposing global sanction – whether error in treatment of original decision-maker’s reasons for decision

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

Police Service Administration Act 1990 (Qld) s 7.4

Police Service (Discipline) Regulations 1990 (Qld) reg 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21, s 135, s 142, s 14 s 261

Albrecht v Ainsworth & Ors [2015] QCA 220

Attorney-General v Bax [1999] 2 Qd R 9, 20

Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119

Briginshaw v Briginshaw (1938) 50 CLR 336

Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169

CMC v Dep Commissioner QPS and Chapman [2010] QCAT 564

DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162

Deputy Commissioner Stewart v Dark [2012] QCA 228

Ericson v Queensland Building and Construction Commission [2014] QCA 297

Harrison v Meehan [2017] QCA 315

Hardcastle v Commissioner of Police (1984) 53 ALR 593

Jones v Dunkel (1959) 101 CLR 298

Lee v Crime and Corruption Commission [2014] QCATA 326

APPEARANCES:

 

APPLICANT:

JXR represented himself

RESPONDENT:

Deputy Commissioner Gollschewski was represented by Mr S McLeod of Counsel, instructed by Queensland Police Service Legal Unit

REASONS FOR DECISION 

  1. [1]
    JXR, at the time a senior constable in the Queensland Police Service (QPS), was dismissed effective 15 April 2015 as a result of disciplinary action taken by Deputy Commissioner Gollschewski (the Deputy Commissioner). JXR applied to the Tribunal for review of the Deputy Commissioner’s decision. Although some aspects of the disciplinary charge against JXR that had been found substantiated by the Deputy Commissioner were found not substantiated by the Tribunal, the sanction of dismissal was confirmed.
  2. [2]
    JXR has appealed the Tribunal’s decision. He submits that the Tribunal erred in finding that the remaining substantiated aspects of the disciplinary charge were substantiated as misconduct. He characterises the alleged errors as errors of law. He alleges a myriad of errors, but in large part, he argues that the Tribunal failed to consider relevant facts; considered irrelevant facts; and made findings that are not supported by evidence, as well as, not correctly applying the relevant standard of proof. He also appeals the Tribunal’s decision in respect of the sanction imposed on him, alleging error of law on the basis that the sanction of dismissal is manifestly excessive, unreasonable, unjust and is a misapplication of the Tribunal’s discretion.
  3. [3]
    The Deputy Commissioner submits that the Tribunal did not err and that the appeal should be dismissed. We observe that the Deputy Commissioner’s submissions in response to JXR’s detailed and extensive submissions are somewhat unhelpfully devoid of detail and references to ‘the evidence’ which he says support the Tribunal’s decision. We observe Counsel’s submissions that JXR’s framing of and submissions about his grounds of appeal are somewhat confusing. However, in response to JXR’s submissions of some 95 pages, we received just over eight pages of submissions from the Deputy Commissioner, providing little practical assistance to the Appeal Tribunal in considering JXR’s grounds of appeal and detailed submissions. Additionally, at the oral hearing, counsel for the Deputy Commissioner’s assertions that he was being put on the spot when requested to address specific matters were unhelpful.
  4. [4]
    That said, we acknowledge that the issues and arguments relied upon by JXR in respect each of the grounds are not in all instances, clear and/or straight-forward (and are somewhat repetitious), no doubt leading to the Deputy Commissioner’s counsel’s submissions about the difficulties in responding to the submissions.[1] We also observe that some of the submissions made in support of the grounds of appeal appear to mirror the arguments made by JXR before the Tribunal. However, this is not unusual in QCAT proceedings when a party or parties represent themselves. The Appeal Tribunal has made all reasonable attempts to understand and consider each of the grounds of appeal raised.
  5. [5]
    We expect that legal representatives will do likewise. We encourage more helpful submissions in future proceedings. Although these are appeal proceedings (rather than review proceedings in which the decision-maker has an obligation to assist the tribunal[2]), the Deputy Commissioner is obliged to act as a model litigant in the disciplinary jurisdiction. The most regrettable delay in the delivery of the Appeal Tribunal’s decision is due to a variety of factors. However, we observe that the lack of assistance from the Deputy Commissioner did not support a speedy determination.
  6. [6]
    There is a slip error affecting the Tribunal’s decision about substantiation of two aspects of the disciplinary charge. The Tribunal’s order does not record that Matter 1b)a) and Matter 1b)b) were found not substantiated by it. With the consent of the parties, we have made directions requiring that error to be corrected.  For the reasons explained in these reasons for decision, we have allowed the appeal related to substantiation of the disciplinary charge on several grounds. The Tribunal’s order in respect of substantiation is set aside with respect to one aspect of the charge, namely Matter 1d)b) dot point 2. Subject to these matters, we have otherwise confirmed the Tribunal’s decision on substantiation.
  7. [7]
    We have confirmed the Tribunal’s decision in respect of the sanction imposed on JXR.

The Tribunal’s decision and orders

  1. [8]
    In the review proceeding, the learned Tribunal Member found allegations of misconduct substantiated against JXR as summarised below:[3]

Matter One

That between 11 September 2006 and 14 September 2014 at Bundaberg your conduct was improper when you:

  1. Committed acts of domestic violence against [MR];
  2. Knowingly provided false testimony before the Bundaberg Magistrates Court;
  3. Threatened injury to a judicial officer and police officers in retaliation for their involvement in the making of a domestic violence order with you as the respondent spouse;
  4. Whilst off duty behaved in a disorderly manner; and

…

For Matter 1a), (‘the counselling incident’) the following allegations were substantiated:

…

  1. On 2 February 2012 during a counselling session with Relationships Australia you threatened [MR] when you stated, “How’s this for grounds for a DV order. I’m going to fucking kill you.” And “You had better watch your back or I am going to fucking hunt you down and fucking kill you.”

…

For Matter 1b), (‘the false testimony Incident’) the following allegations were substantiated:

…

  1. Threatening to kill [MR] [sic], you falsely stated it was just a flippant remark.

…

For Matter 1c), (‘the threats against judicial and police officers’) the following allegations were substantiated:

…..you were named as the respondent spouse in a Queensland Police Service Application for a Domestic Violence order with your wife [MR] as the respondent.

Sergeant Ken Hendrie was the applicant for the Domestic Violence order and Justice Smith the presiding Magistrate, with Senior Constable Grigoris the police prosecutor and Sergeant Elder assisting in the process.

On 15 December 2012m [sic] in the course of his duties, you stated to Sergeant Brett Gillard:

  1. “I’m not suicidal but I’m fucking homicidal I’ll tell you now.”;
  2. “Oh yeah [ha ha} [sic] and there’s a few people that should fucking watch out.”;
  3. “Tell you if I ever see Ken Hendrie fucking that SMITH cunt or any of those prosecutions from fucking Maryborough I will kill the cunts I’ll tell you that now you can go back and –“;
  4. “- report that because I fucking will.”;
  5. “I never want to see them cunts because I will fucking kill ‘em.”;
  6. “well make sure you get this on tape, I will kill SMITH.” And
  7. “I will kill HENDRIE and I will kill GREGORIS and I will kill ELDER if I ever, ever see them. So do with that what you like.”

For matter 1d), (‘the disorderly conduct’) the following allegations were substantiated:

Investigations have identified that on three occasions whilst off duty you were affected by alcohol and:

  1. On 23 February 2013 police attended at the Central Hotel Bundaberg, in relation to an alleged disturbance, when exiting you screamed at Senior Constable [OL]:

 “you fucking dog cunt, you slut, you fucking dog cunt.” “Come on slut, what are you going to do about it?” (‘the [OL] incident’)

  1. On 14 September 2013 police attended at the intersection of Targo and Woongarra Streets, Bundaberg in relation to an alleged disturbance. Whilst police were talking to male aboriginal persons in attendance you:

 .  approached police and started to verbally abuse the group;

 .  tapped Constable David Morgan, one of the police in attendance on the “bottom”; and

 .  threatened Constable Roy Robinson, when you stated, “Your (sic) fucked, you wait til tomorrow”, and

 . when speaking to Constable Anthony Edgar, in reference to Constable Roy Robinson you stated, “call off your little dog or I’ll sort the cunt out.”  (‘the group incident’)

…

  1. [9]
    The Tribunal found that Matters 1a)a) (the pillow incident) and 1a)b) (the gun incident) and 1d)c) (disorderly conduct at the Brother’s Sports Club) as well as 1b)a) (false testimony about the pillow incident) and 1b)b) (false testimony about the gun incident) were not substantiated. As discussed, the sanction imposed on JXR was dismissal from the police service.
  2. [10]
    The Tribunal’s orders set aside the Deputy Commissioner’s decision in respect of Matters 1a)a), 1a)b) and 1d)c). However, the Tribunal’s orders did not reflect its decision to set aside the Deputy Commissioner’s findings in respect of 1b)a) and 1b)b).
  3. [11]
    As discussed earlier, correction is to be attended to by the Tribunal pursuant to the ‘slip rule’ pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). We have also made directions waiving compliance with the usual procedural requirements of the QCAT Act and QCAT Rules for a correction to be made.

The grounds of appeal: alleged error of law

  1. [12]
    At the oral hearing, the Appeal Tribunal indicated to the parties that it may characterise some issues raised by JXR’s appeal as alleged errors of fact or mixed fact and law. It was agreed that if this was ultimately the case, we would treat the appeal in relation to those grounds as an application for leave to appeal and appeal. However, upon reflection, all grounds of appeal raise alleged errors of law.
  2. [13]
    A party to a proceeding may appeal as of right against a decision of the tribunal that was not decided by a judicial member on a question of law.[4] In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the original tribunal for reconsideration.[5] An appeal on a question of law is an appeal in the strict sense. The appeal tribunal may only substitute its own decision based on the facts as found by the original tribunal, if the question of law disposes of the matter in its entirety.[6] Otherwise, the Appeal Tribunal must remit the proceeding to the Tribunal for determination according to law.
  3. [14]
    In his lengthy submissions, JXR prefaces discussion of his individual grounds of appeal, framing all of them as errors of law.
  4. [15]
    In relation to substantiation of the disciplinary charge, he describes the errors as breaches of natural justice (in relying on non-existent facts; failing to take relevant considerations into account; and failing to base the decision on logically probative evidence). In context, his submission (made in reliance upon Broadcasting Tribunal v Bond,[7]) relies upon the common law principle that an absence of evidence to support a finding or inference of fact gives rise to an error of law. Whereas the alleged errors are not (or not all) breaches of natural justice, we accept that making findings of fact and drawing inferences not supported by evidence; failing to take into account relevant considerations; and taking into account irrelevant considerations are errors of law.
  5. [16]
    JXR alleges 37 separate errors of law in substantiation. He raises numerous discrete alleged errors within many of the 37 alleged errors. Some are one-off issues. Some involve recurring issues.
  6. [17]
    As discussed earlier, in relation to sanction, JXR’s appeal is made on the basis that the Tribunal erred in the exercise of its discretion, resulting in the imposition of a sanction that is manifestly excessive, unjust and unreasonable.
  7. [18]
    JXR places substantial reliance on DA v Deputy Commissioner Stewart (No 2) (DA (No 2)) .[8] Indeed, he describes it as his primary argument on appeal.[9]
  8. [19]
    We address each of the grounds of appeal raised[10] in later paragraphs.

Application for fresh evidence

  1. [20]
    At the commencement of the hearing, JXR made an oral application for leave to rely upon fresh or new evidence,[11] largely as contained in the Appeal Books that he had filed with his submissions on the appeal. In particular, he sought leave to rely upon the following:
    1. A report of Dr Jenkins;[12]
    2. An extract from his Family Court of Australia decision;[13] and

Further, he sought to adduce oral evidence in relation to his life since the Deputy Commissioner’s decision to dismiss him.

  1. [21]
    The Appeal Tribunal heard submissions from both parties in respect of the evidence proposed to be introduced in the appeal proceedings. The application regarding the Family Court decision was withdrawn by JXR. The Appeal Tribunal refused leave to adduce the other fresh evidence.
  2. [22]
    Oral reasons for decision were given at the hearing for the refusal.
  3. [23]
    In any event, we observe that the appeal is made on the basis of alleged errors of law only. It is therefore an appeal in the strict sense.
  4. [24]
    That said, it does appear that JXR has included in his appeal book and relies upon in making submissions in the appeal proceeding, at least some other documents that were not before the Tribunal. As far as we have located them, these are identified in these reasons for decision. There may be others in the voluminous material provided. Unfortunately, neither JXR nor the Deputy Commissioner drew them to our attention as fresh evidence during the appeal hearing.

A recurring alleged error of law relied upon by JXR in the appeal: the treatment of mitigating circumstances:

  • Are defences available for disciplinary charges?
  • If mitigating factors are not a defence to a disciplinary charge, can they affect whether conduct should be classified as a breach of discipline rather than misconduct?
  1. [25]
    JXR alleges error in multiple grounds of appeal (about substantiation of the various aspects of the disciplinary charge, as well as, about the imposition of sanction) that the Tribunal failed (in a variety of specified and unspecified ways) to have regard to his mitigating circumstances and in some instances, the defence of insanity, that he submits was available to him. In response, the Deputy Commissioner submits that the Tribunal considers mitigating circumstances only in relation to sanction, and that the Tribunal properly adopted this approach.
  2. [26]
    Although not well or clearly argued in his submissions, JXR clarified at hearing that he contends that a disciplinary charge may be equated to a criminal offence. In this regard, he argues that in criminal proceedings when a person has a legitimate defence, there is no offence at all.[14] In this regard, JXR submits in relation to some alleged errors that he had a defence of insanity, and in relation to others, a defence relating to mitigating circumstances. That said, he also submits on appeal that conduct which might otherwise be misconduct if substantiated, should be found to be a breach of discipline, because of mitigating circumstances.
  3. [27]
    This issue raised an apparently novel argument. (That said, since the Appeal Tribunal hearing in this proceeding, a somewhat similar argument has been unsuccessfully raised before the Tribunal in Caesar v Deputy Commissioner Brett Pointing).[15]
  4. [28]
    It is useful to consider the general issue/s raised here and refer back to them in considering the individual grounds of appeal/ alleged errors.
  5. [29]
    Caesar v Deputy Commissioner Brett Pointing
  6. [30]
    In Caesar, the Tribunal determined a police disciplinary review. Mr Caesar raised what was referred to as a preliminary question about whether misconduct could be substantiated against him (and then be sanctioned) in circumstances that there was psychiatric evidence of a diagnosed adjustment disorder and that as a consequence of his diagnosed mental illness, he did not fully appreciate the wrongness of the actions said to constitute the misconduct. Although the allegations pertaining to the conduct were admitted, Mr Caesar denied they constituted misconduct. Mr Caesar submitted that, as the former Misconduct Tribunal said in Melling v O'Reilly,[16] ‘there is a strong presumption’ that a charge of misconduct requires a culpable state of mind. (In Melling, the disciplinary charge of a false report was devoid of an allegation that the officer acted dishonestly, deliberately, negligently or recklessly.)
  7. [31]
    Caesar also identifies a general principle in criminal proceedings that persons are presumed to be sane and possess a sufficient degree of reason as to take responsibility for his or her crimes, unless the contrary is proved.[17] For a defence of insanity to succeed, at the time of the crime the accused must have such a defect of reason from disease that he or she did not know the nature and quality of the act done, or if known, that he or she did not know it was wrong. Mr Caesar submitted that act/s of misconduct required a guilty mind, in that the acts were intentional, negligent or reckless. He argued that was consistent with the definition of misconduct and purpose of disciplinary proceedings because reasonable members of the public would not consider actions of a police officer improper or not meeting required expectations if the officer was unable to control or appreciate their actions.
  8. [32]
    The Deputy Commissioner in Caesar submitted that the medical condition gave context to the conduct, but as the Court of Appeal said in Deputy Commissioner Stewart v Dark (Dark),[18] that did not bear strongly on the conclusions to be drawn about the officers character and integrity. He submitted that the question is whether the nature of the conduct was misconduct.
  9. [33]
    The Tribunal found that Mr Caesar’s psychiatric evidence did not support a finding that would establish the defence of insanity. It said that the defence was not available. However, and without directly saying that it did, the Tribunal appears to have accepted that if the medical evidence demonstrated the requisite matters, a defence of insanity would be available. (On the basis of our observations later explained, we would disagree with that conclusion.)
  10. [34]
    Our discussion of the relevant issues in JXR’s case
  11. [35]
    In relation to substantiation: Firstly, JXR places some reliance for his argument upon DA (No 2).[19] However, it does not assist him. In that decision, the Appeal Tribunal was considering the appropriate sanction to impose. It observed that the misconduct there largely occurred in the officer’s private life at a time of stress, although it reflected poorly on his character. It was in this context that the Appeal Tribunal also considered other relevant factors including evidence of rehabilitation. Accordingly, the authority relied upon by JXR is not relevant as it does not suggest that mitigating factors are to be taken into account in determining whether conduct is substantiated misconduct.
  12. [36]
    In JXR’s case, the medical evidence (as discussed later in these reasons for decision) would not support the availability of the defence of insanity, even if it applied in police disciplinary proceedings. Therefore, we do not need to decide whether it is available. However, for the reasons later discussed, we make the observation that it would not appear to us to be available. Further, we do not accept (for the reasons discussed in the following paragraphs) that mitigating factors or circumstances are a defence or relevant in determining whether conduct is substantiated as misconduct. (Further, even if mitigating circumstances were relevant to substantiation of a disciplinary charge, we observe that the medical evidence would not support JXR’s submissions that his diagnosed adjustment disorder was a defence or excuse for his conduct. Again, the reasons for this are later explained). 
  13. [37]
    The purpose of police disciplinary proceedings in Queensland encompasses protection of the public,[20] maintenance of proper standards,[21] and promoting and maintaining public confidence in the police service.[22] Disciplinary action is protective in nature, not punitive.[23]
  14. [38]
    An officer is liable to disciplinary action under s 7.4 of the Police Service Administration Act 1990 (Qld) (PSA Act) for conduct that is misconduct or breach of discipline on such grounds as prescribed by regulation. The Police Service (Discipline) Regulations 1990 (Qld) (PS Regulations) provide for grounds for disciplinary action as follows:

9 Grounds for disciplinary action

  1. For the purposes of section 7.4 or part 7A of the Act, the following are grounds for disciplinary action—
  1. unfitness, incompetence or inefficiency in the discharge of the duties of an officer’s position;
  2. negligence, carelessness or indolence in the discharge of the duties of an officer’s position;
  3. a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner;
  4. a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned;
  5. absence from duty except—
  1. upon leave duly granted; or
  2. with reasonable cause;
  1. misconduct;
  2. conviction in Queensland of an indictable offence, or outside Queensland of an offence which, if it had have been committed in Queensland would have been an indictable offence.
  1. Where disciplinary action against an officer is contemplated on a ground referred to in sub-regulation (1)(e) the prescribed officer may appoint any medical practitioner or medical practitioners to examine the officer and to report to the commissioner upon the officer’s mental or physical condition or both, and may direct the officer to submit to such examination.
  1. [39]
    Misconduct and breach of discipline are defined in s 1.4 of the PSA Act as follows:

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.

…

misconduct means conduct that—

  1. is disgraceful, improper or unbecoming an officer; or
  2. shows unfitness to be or continue as an officer; or
  3. does not meet the standard of conduct the community reasonably expects of a police officer.
  1. [40]
    As a matter of construction, the grounds for disciplinary action in r 9, contemplate conduct that is deliberate, as well as conduct due to unfitness, negligence and carelessness.  Specifically, unfitness in the discharge of an officer’s duties is a ground for disciplinary action. A variety of the other grounds concern performance of an officer’s official duties. Misconduct is a specific ground provided for in r 9. Unlike the other grounds, the regulation does not provide for misconduct to relate to the performance of an officer’s duties. Misconduct in r 9, means misconduct as defined in the PSA Act.[24] Consistently, decisions, including Dark,[25] have confirmed that conduct in an officer’s private life can constitute misconduct. The definition of misconduct specifically contains an unfitness limb.
  2. [41]
    Under s 7.4(2) of the PSA Act, an officer is liable to disciplinary action for such conduct as considered to be misconduct or breach of discipline. For a  breach of discipline to be substantiated, a decision-maker must be reasonably satisfied that there has been a breach of the relevant legislation or direction, but the conduct is not misconduct. For misconduct to be substantiated, a decision-maker must be satisfied that the conduct of an officer in committing the acts in the disciplinary charge, falls within limbs (a), (b), or (c) of the definition of misconduct.
  3. [42]
    The assessment about whether conduct is misconduct or a breach of discipline must be performed having regard to the definitions of misconduct and breach of discipline, as well as, the purposes of police disciplinary proceedings. Limb (a) of the definition of misconduct includes conduct that is disgraceful, improper or unbecoming an officer. The meaning of improper is not constrained. On a plain reading, conduct may be improper, irrespective of background that may provide some explanation as to why it occurred, that is, whether it is a consequence of a defect of character, lack of judgment, or in difficult personal circumstances. As the Court of Appeal said in Dark,[26] most people may act appropriately until tested, at which time a person’s true character may be revealed.  Limb (b) refers to ‘unfitness to be or continue to be… an officer’. Again, no constraints are placed on the meaning of unfitness, which according to general usage would include unfitness arising on any basis. Limb (c) is broad, referring to conduct that does not meet the standard the community reasonably expects from an officer. 
  4. [43]
    Importantly, the purposes of police discipline includes protection of the public and maintenance of public confidence in the police service. The perspective of reasonable members of the public is relevant. Contrary to the submission in Caesar that reasonable members of the public would not consider conduct of an officer to be misconduct unless an officer understood the nature of his or her act and/or its wrongness, the public must have confidence that improper conduct of officers, whatever its underlying cause or circumstances, will not be tolerated.
  5. [44]
    Broadly speaking, police officers are responsible for maintenance of peace and good order in the community and upholding and enforcing the law, including bringing charges against those who contravene it. Police officers carry potentially life-ending weapons. They have significant coercive powers that may be exercised against members of the public. For the maintenance of public confidence, the conduct of police officers must be beyond reproach, irrespective that an officer may be unwell or going through a difficult personal situation at the time.
  6. [45]
    Also given the purpose of maintaining public confidence, whether the conduct is misconduct must be determined from the public perspective. An objective assessment is required about whether the conduct of the officer meets the definition.
  7. [46]
    The Court of Appeal said in Dark,[27] in making the assessment about whether conduct is misconduct, the nature of the conduct and the circumstances in which it took place are relevant.[28] However, it appears to us from the Court’s reasons that the circumstances referred to are those relevant to  performing an objective assessment of the conduct as seen from the public perspective. That is, the  conduct itself in the immediate circumstances in which it occurred. It is not a reference to the circumstances of an officer’s personal life and history that may have occurred over the weeks, months or years beforehand resulting in the officer being stressed, tempted or unwell at the time of the conduct. In Dark,[29] Muir J said that although conduct (there of dishonesty) of an officer occurred at a time of stress and that might engender sympathy, it ‘does not bear strongly on the conclusions capable of being drawn about his character and integrity, going on to say that it is expected that officers will resist any such temptation and will continue to behave with propriety regardless of stress’.[30] Particular conduct was confirmed in Dark as misconduct because it engendered a lack of trust on the part of other police officers and members of the public.[31]
  8. [47]
    That is not to say that the trust and confidence of other officers and the public will be eroded only by dishonesty. Plainly, any other disgraceful or improper conduct and conduct that is unbecoming an officer, or other conduct meeting the definition, may constitute misconduct.
  9. [48]
    The former Misconduct Tribunal’s statement in Melling v O'Reilly [32] to the effect that a presumption operates such that misconduct requires a culpable state of mind (that is, it is limited to conduct that is  deliberate, careless or reckless conduct), as a matter of construction on a plain reading and having regard to the purposes of discipline, does not appear to us to be correct. Accordingly, insofar as the Tribunal, in Caesar, appears to have accepted that culpability is required and that a defence of insanity may arise in an appropriate case, we would disagree.[33] That said, we do not have to decide the point.
  10. [49]
    That is not to say that disciplinary proceedings should be the preferred manner of dealing with all conduct issues. Employers including the QPS have human resources obligations towards its officers, such that conduct arising may be more appropriately dealt with through other means. In this regard, we observe that s 8.3 of the PSA Act provides for medical assessment of officers whom the commissioner reasonably suspects  are unfit for duty by reason of infirmity; and consequences to follow that may end an officer’s employment as an officer. This is not inconsistent with our construction of the disciplinary provisions.
  11. [50]
    It follows that conduct that falls within the definition of misconduct cannot be mitigated to a breach of conduct on the basis of ‘mitigating factors’. In any event, misconduct and breach of discipline are defined terms. The scope of breach of discipline is considerably constrained to relate to breaches of specified legislation concerning performance of official duties and following official directions. However, it is plain that more serious conduct, despite technically falling within the ambit of the definition of breach of discipline, may be characterised as misconduct.
  12. [51]
    In relation to sanction: A defence (of insanity or other) cannot logically be available in considering sanction. Even on JXR’s own analogy to criminal proceedings, this would mean a defence was considered after conviction, and in sentencing. This is not so, and is illogical.
  13. [52]
    That said, mitigating factors are relevant to the exercise of discretion in determining the sanction to be imposed: DA (No 2).[34] It is at this stage, that an officer’s mitigating factors, including diagnosed medical conditions and personal hardships, are to be considered in disciplinary proceedings. 

Part 1: The appeal on substantiation of aspects of the disciplinary charge

  1. [53]
    In the sections that follow, we summarise (in brief) the various components comprising each of JXR’s alleged errors of law or grounds of appeal; the submissions made; and then discuss the relevant issues and set out our conclusions. Where it appears the alleged error relates to a particular paragraph or paragraphs of the Tribunal’s reasons for decision, we have also referred to the paragraph/s in our summary of the components.
  2. [54]
    That said, each ground of appeal is determined in context of the overarching ground of appeal alleging error of law relied upon by JXR.
  3. [55]
    1.1 The Counselling Incident
  4. [56]
    Alleged error 1: in finding (in [191]) that JXR’s self-report was an admission that the threat to kill was domestic violence and not a flippant remark; placing weight on Magistrate Smith’s findings to this effect; in failing to explain why Judge Devereaux and Magistrate Batts findings were not taken into account; and in failing to base its decision on logically probative evidence.
  5. [57]
    To provide context, we observe that the Tribunal recites the evidence before it about the counselling incident at some length.[35] In discussing the evidence, it concludes that JXR’s attendance at the police station immediately after making the verbal threat towards his wife in order to self-report ‘is as much an admission that his conduct constituted domestic violence and that it was not a flippant remark’.[36] JXR submits that in finding that his self-report was an admission of domestic violence (DV) rather than a flippant remark, the Tribunal relied on non-existent facts and failed to take relevant considerations into account.
  6. [58]
    JXR makes a variety of seemingly unrelated or tenuously related arguments in support of this ground of appeal. He refers to dictionary meanings of ‘admission’ (to the effect of, acknowledging the truth of a statement) and ‘flippant’ (including not showing careful thought, off-hand and unconsidered, inappropriate). He submits that the Tribunal infers incorrectly that he acknowledged the conduct was DV, when he at no time (said or otherwise) acknowledged that was the case. While he admitted making the comments themselves and that they may fall within the (then) definition of DV, he submits that at no time were his actions an admission that his actions in making the threats amounted to DV, ‘especially one that would result in an application for a Domestic Violence Order (DVO)’.[37] 
  7. [59]
    He relies upon S v D[38], where the District Court of Queensland dismissed an appeal from a Magistrate (who, although satisfied of past acts of DV) found that the evidence did not support a finding that future DV was likely, and declined to make a DVO. He also relies upon a decision in MAN v MAM[39] to support his belief that his statements at counselling would not result in the making of a DVO application and certainly not the making of a DVO. He argues that it was the only act of alleged DV during the relationship (it seems, consequent upon the Tribunal’s finding that the pillow incident and the gun incident were not substantiated). Further, he submits that a DVO was, in any event unnecessary, as no further incidents subsequently occurred.
  8. [60]
    In this ground of appeal, JXR also submits that the Tribunal erred in that it gave weight to findings of Magistrate Smith that the words spoken by him (JXR) constituted an act of DV, and were not flippant. He says that it failed to take into account, that (in the appeal against Magistrate Smith’s decision) Judge Devereaux, said it was open to infer that JXR ‘failed to understand that his conduct could amount to domestic violence’.[40] Further, he relies upon what he considers is Judge Devereaux’s acknowledgment that Magistrate Smith had an obvious bias against him.
  9. [61]
    He also submits that the Tribunal failed to take into account that Magistrate Batts, (in considering whether to make a temporary DV order prior to the final hearing by Magistrate Smith) expressed some reservations about whether the threat was likely to be carried through[41] and that there was evidence before Magistrate Smith from Senior Constable Bach to the effect that she believed JXR made the threats in ‘the heat of the moment, out of frustration’[42] and that there was no real threat to MR.
  10. [62]
    Finally, JXR submits that the Tribunal failed to base its decision on logically probative evidence in relying on Magistrate Smith’s findings because Magistrate Smith’s opinion is not a fact.

Discussion and our conclusions

  1. [63]
    In relation to the Tribunal’s finding about whether the counselling incident was substantiated as misconduct, the Tribunal had to make findings about whether JXR said the things alleged; if so, whether they constituted an act/s of DV; and if so, whether they were misconduct.
  2. [64]
    There was no issue before the Tribunal that JXR said the things alleged: JXR admitted it. The learned Member considered whether his threats amounted to DV, having regard to the definition of domestic violence in the Domestic and Family Violence Protection Act 1989 (Qld) (the DV Act).[43]
  3. [65]
    The Tribunal’s finding in [191] that JXR’s self-report at the police station was ‘as much an admission’ is not a finding that JXR directly admitted or intended to acknowledge that his threats were an act of DV.  On a fair reading of the reasons for decision, the Tribunal found that his actions, of themselves, in self-reporting the statements/threats he had made, supported a conclusion that the statements made to his wife during the counselling session that he would kill her, were threats rather than flippant comments and were DV.
  4. [66]
    In reaching this conclusion, it is apparent that the learned Member accepted the evidence of Inspector Bond. In [190], he refers to the Inspector’s evidence that JXR told him when self-reporting that he had crossed a line in making the comments. This evidence, juxtaposed as it is to the finding complained about, on a fair reading, was given weight in reaching the conclusion that the threats were DV. It is in this context that the Tribunal determined that the act of self-reporting and JXR’s statements to Inspector Bond about crossing a line was tantamount to an (indirect) admission.  Although the learned Member’s explanation could, perhaps, have been clearer, no error is revealed.
  5. [67]
    Before discussing the other issues raised in this ground of appeal, it is useful here to detail the learned Member’s consideration of and findings in relation to the counselling incident more generally as they are relevant not only to the further discussion about this ground of appeal, but a number of other grounds to follow.
  6. [68]
    The learned Member, in discussing the evidence before him, referred to Magistrate Smith’s findings that the words used by JXR constituted DV.[44] He went on to say that the Magistrate had the benefit of hearing oral testimony, while the Tribunal only had a copy of the transcript from the hearing. (We observe that the shortcomings in procedure prescribed for police disciplinary action and reviews has been the subject of sustained comment/concern by previous QCAT Tribunals). Nevertheless, on a fair reading, the learned Member then says that he was reasonably satisfied on the evidence before him that the relevant disciplinary allegation was substantiated.
  7. [69]
    He went on to explain why. In doing so, he took into account the evidence about the manner in which the words were delivered,[45] observing JXR’s own evidence that he was angry at the time, even though he had also given evidence that he delivered the words calmly. He also considered the context in which the words were said. In particular, he discussed JXR’s claim that he had made the threats in response to his estranged wife’s ‘threat’ to apply for a DVO, (after he suggested that he would return to their former home).[46]  The learned Member acknowledged the issues that the prospect of a DVO would cause for JXR’s employment.[47]
  8. [70]
    The learned Member discussed Magistrate Smith’s finding[48] to the effect that acts of self-reporting did not extinguish the acts of DV, although may be relevant to whether a DVO was required. The Tribunal then went on to observe that the issues for the Tribunal were different from those that had to be decided by Magistrate Smith.[49] The learned Member found that the question for the Tribunal was whether the threats were an act of DV. He stated that JXR’s self-reporting went to whether it was misconduct (and if so, sanction to be imposed). He acknowledged that while JXR’s mental health condition may have disposed him to outburst behaviour, he was taking medication and that the medical evidence did not suggest the condition excused his behaviour.[50] He then found, having regard to the matters discussed, that the words said were an act of domestic violence.[51]
  9. [71]
    In paragraphs [197-198], the Tribunal considered whether the conduct was misconduct. It accepted that the conduct was misconduct, rather than (as contended by JXR) a breach of discipline. It appears to have accepted that misconduct is conduct that reveals a lack of integrity or want of character such as to substantially erode the trust and confidence of other members of the police service and the public.[52] The Tribunal said that, ‘He has threatened to commit violence against his wife. While the threat was made in the heat of a marital dispute, he could have defused it then and there. He chose not to and repeated the threat. He self-reported and acknowledged he had stepped over the line’.[53] The learned Member went on to say, ‘As a police officer, there is an expectation that [JXR] will uphold the law and clearly in making the threat to [MR], he was not upholding the law and that constitutes misconduct’.[54] That is, ultimately, his finding that the conduct was misconduct was based on the finding that police officers are expected to uphold the law, and in committing an act of domestic violence in making the threat to kill MR (and repeating it), JXR did not do so.
  10. [72]
    Although the learned Member could, perhaps, have more clearly expressed his reasons, on a fair reading of the reasons for decision, he formed his own conclusion that the threats were DV, rather than a flippant comment, based on the evidence before him, including the evidence given in the domestic violence proceedings. The learned Member set out the evidence before him at some length.[55] It is further apparent that, to the extent the evidence before him included the transcript from the DV proceedings, he formed his own conclusions based on the evidence in the transcript, rather than relying upon findings made by Magistrate Smith. Although Deputy Commissioner Gollschewski appeared to concede on appeal that the learned Member relied on Magistrate Smith’s findings in finding that the threats amounted to DV, we do not agree. The learned Member treated Magistrate Smith’s decision was only one piece of evidence before him for consideration.[56]
  11. [73]
    Therefore, although the findings made by Magistrate Smith after the contested oral hearing were discussed, they were not relied upon or adopted by the learned Member. This was proper. The Tribunal’s role is to make its own decision in the proceeding in relation to the issues raised.
  12. [74]
    The comments by Judge Devereaux and Magistrate Batts relied upon by JXR were not specifically discussed by the Tribunal in considering the issue. A search of the documents filed by the Deputy Commissioner in compliance with s 21(2) of the QCAT Act in the file relating to the review proceedings reveals that the order made by Judge Devereaux was before the Tribunal.[57] However, it appears the associated extract from the transcript of the hearing[58] and reasons for his decision[59] relied upon now by JXR were not. Brief extracts from those documents are provided in JXR’s Appeal Book. The Tribunal’s approach to evidence not before it cannot be criticised. In any event, even if it was before him the comments are irrelevant because the learned Member reached his own conclusions about whether the threats were act/s of DV. 
  13. [75]
    In case we are wrong, we observe that on appeal, the orders made by Judge Devereaux did not upset Magistrate Smith’s orders, except to reduce the term of the DVO to 15 months. In the one brief paragraph extracted from his reasons for decision and provided in JXR’s Appeal Book, Judge Devereaux said that Magistrates Smith’s finding that JXR did not genuinely accept that his conduct was domestic violence was ‘well and truly’ open to him, and that it was also open to infer that JXR appeared not to understand that his actions could constitute domestic violence.[60] This would not assist JXR’s argument on appeal. Further, in acknowledging that Magistrate Smith did not like or think much of JXR very much by the end of the DV hearing, Judge Devereaux does not indicate what JXR refers to as the ‘obvious bias’ of Magistrate Smith towards him. In essence, the requirements of observing procedural fairness include giving parties a fair hearing absent pre-judgement or bias (actual or reasonably apprehended), and in which the adjudicator has no personal interest. There is no bias or reasonable apprehension of bias arising from JXR’s ground of appeal as expressed or the argument made in respect of it. Whether a judicial officer ‘liked’ a person by the end of the hearing does not of itself reflect on whether he or she provided a fair hearing to the party, nor indicate actual bias or a reasonable apprehension of bias.
  14. [76]
    Magistrate Batts’ brief observations relied upon by JXR were made at a preliminary stage of the proceedings in the limited context of considering whether a temporary order should be made pending a final hearing. JXR also relies upon evidence of Senior Constable Bach in the DV hearing before Magistrate Smith. However, that evidence consists of the officer’s personal opinion/s about whether the threats made were serious threats. The evidence from these sources could be of little assistance to the Tribunal in forming its own conclusions. It is unsurprising that the they were not discussed.
  15. [77]
    Discussing the findings and observations of Judge Devereaux (even if they were before the Tribunal) and Magistrate Batts, and the opinion evidence of Senior Constable Bach could not have assisted the Tribunal to form its own conclusion about whether the making of the threats was an act/s of DV.  No significant weight could be given to them by the Tribunal in forming its own conclusions.  No Tribunal error is identified.
  16. [78]
    Finally, an argument is made that the Tribunal failed to rely on logically probative evidence in reaching its conclusions because Magistrate Smith’s opinion (or findings) are only his opinion, not facts. As discussed, Magistrate Smith’s findings were not relied upon by the learned Member. He formed his own conclusions that the actions of JXR constituted DV.
  17. [79]
    No error is revealed.
  18. [80]
    Alleged error 2: (in [191]), JXR made no attempt to reassure that the threat was only said in the heat of the moment.
  19. [81]
    In paragraph [191] of its reasons for decision, the Tribunal said, ‘He did not though immediately after the first threat was made make any attempt to try to calm down and reassure his wife that it was only said in the heat of the moment. He instead repeated it and left when asked’. JXR submits that the Tribunal erred in law in making the finding, because the comments were made, and repeated within seconds, in the heat of the moment. As a consequence, he was asked by the counsellor to leave. He did so immediately as requested.
  20. [82]
    He submits therefore, that the finding of the Tribunal that he did not attempt to calm down and reassure his former wife cannot reasonably be made: there was no interval within which his passion could have cooled. Accordingly, he says that in making the finding, the Tribunal failed to take relevant considerations into account, namely that he had no reasonable opportunity to calm down.

Discussion and our conclusions

  1. [83]
    The Tribunal does not discuss in [191], opportunities for JXR to calm down and apologise. Instead the learned Member goes on to state the undisputed fact that JXR repeated the threat during the counselling session. In context, the issue the Tribunal considered relevant, in determining whether the threat was an act of domestic violence (or a flippant remark/s as JXR contended), was JXR’s actions in repeating the threat and shortly afterwards, self-reporting it to Superintendent Bond, who described him at the time as upset and distraught, and describing himself as having crossed a line.[61]
  2. [84]
    The discussion in [191] indicates that the learned Member considered that if JXR’s contention was to be accepted, the threats would have been delivered in a manner that was consistent with the description of flippant, and that if it appeared they were taken seriously, steps would have been taken immediately by JXR to address the misconception. Instead, JXR said the words in an angry manner. Then he repeated them. In assessing the inherent probability that JXR said the words flippantly, the learned Member considered whether the surrounding circumstances supported such a finding, concluding that they did not.
  3. [85]
    As discussed earlier, the Tribunal went on to discuss a variety of other matters in reaching his conclusion that the threat/s were an act of domestic violence.
  4. [86]
    No error is revealed.
  5. [87]
    Alleged error 3: in finding that the conduct was misconduct, rather than a breach of discipline, despite acknowledging mitigating circumstances (having been told there is no prospect of reconciliation (in [193])) for his upset at the time of the threat (inconsistently with DA (No 2)); and failing to take into account his continued good service for ten months after the conduct.
  6. [88]
    JXR alleges that the Tribunal erred in law in finding his conduct in the counselling incident to be misconduct, despite the mitigating circumstance (in that his wife had just told him that there would be no reconciliation),  thereby failing to base its decision on logically probative evidence and failing to take relevant considerations into account.[62] In particular, JXR refers to the Tribunal’s statement that:[63]

I have some sympathy with his circumstances in being told that there was to be no reconciliation when he thought it would be possible and understand that would cause him upset.

  1. [89]
    JXR submits that in making these observations, the learned Tribunal member concedes that his threats were not misconduct, by demonstrating that a reasonable person would not find the conduct met the definition of misconduct. In particular, he submits that the conduct is not disgraceful or show unfitness to be… an officer.[64] He seems to argue that while the conduct may have been a breach of discipline, it was not misconduct, referring to a Misconduct Tribunal decision in which it was held that an officer is not regarded as professionally unfit for failing to perfectly meet departmental requirements.[65] In particular, JXR submits that his circumstances are not dissimilar to DA (No 2)[66] in that the incident occurred in his private life, at a time when he was under enormous stress from a bitter and protracted matrimonial dispute.
  2. [90]
    He also argues it is relevant that he continued to perform the role of police officer and to relieve in higher duties after the incident.
  3. [91]
    JXR also alleges here that the Tribunal failed to take into account a relevant consideration and failed to base its decision on logically probative evidence, namely his continued service as a valuable member of the police service for 10 months after the counselling incident.
  4. [92]
    The Deputy Commissioner submits that the Tribunal referred to Ziems v Prothonotary of Supreme Court (NSW) (Ziems)[67] as to the nature of misconduct,[68] wherein the Court described misconduct as conduct revealing such a lack of integrity or want of character as to significantly erode trust and confidence that colleagues and members of the public are entitled to repose in him.
  5. [93]
    In response to JXR’s arguments, the Deputy Commissioner’s representative argued that mitigating circumstances have been raised and considered relevant in Tribunal proceedings in relation to the issue of sanction.[69] He says that, consistent with this, the learned Member indicated that mitigating factors would be dealt with in considering sanction.[70] He says that statement should be interpreted as a finding by the learned Member that mitigating factors are relevant only to sanction. He submits that the Tribunal was cognisant of all of those factors raised by JXR, it simply did not discuss the factors in considering whether the conduct was misconduct.

Discussion and our conclusions

  1. [94]
    In acknowledging that JXR’s circumstances evoked some sympathy, JXR argues that the learned Member acknowledged his threats were not misconduct. This is not so. The Member did no more than acknowledge that it was upsetting for JXR to learn that his estranged wife was not prepared to reconcile with him, when JXR had thought it was possible. The Tribunal’s expression of sympathy was not acknowledgment that the conduct was not misconduct.
  2. [95]
    For the reasons explained earlier, JXR’s circumstances raised in mitigation are not relevant to whether his conduct constituted misconduct.
  3. [96]
    That said, the learned Member appears to have accepted the proposition for which JXR contends. In [192], in saying that ‘The self-reporting will go to whether his conduct constituted misconduct[71] and any sanction if that misconduct is found’. This appears to be a finding that a subsequent act of self-reporting may be relevant to the classification of the conduct as either misconduct (or a breach of discipline). Despite this, the Tribunal did not then find that the self-reporting was relevant to the determination of whether the conduct was misconduct. Also, in [195], the learned Member considered whether there was any evidence that JXR’s diagnosed psychiatric condition was an ‘excuse’ for the behaviour, concluding that the evidence did not support such a finding.
  4. [97]
    For reasons already explained, to the extent that the learned Member accepted the proposition that mitigating factors are relevant to the determination of whether conduct is substantiated, at all, or, as misconduct (or breach of discipline), he erred in law. However, as he ultimately did not consider those factors as mitigating in JXR’s case, the error does not affect and is not material to the decision.
  5. [98]
    In deciding that the conduct was misconduct, the learned Member considered established case law about the meaning of misconduct to which the Deputy Commissioner had referred him (and appears to adopt it, while not specifically saying that he did so).[72] He had also earlier set out the definition of misconduct,[73] although he did not here specifically refer back to it. The learned Member referred to JXR’s actions in making the threats as ‘not some mere failure to meet the requirements of police discipline,’[74] observing that in making the threat he did not uphold the law, namely the DV Act. That is, he was satisfied that the conduct was not a breach of discipline. The learned Member considered the conduct was misconduct not a breach of discipline.[75] There is no error revealed: making of the threats in the counselling session cannot be likened to a failure to perfectly meet departmental instructions/requirements. It was a contravention of a law that police officers have a significant role in administering and enforcing, that is, the DV Act. The learned Member went on to say, correctly that any mitigating factors will be discussed in regard to sanction.[76] It was appropriate for the Tribunal to consider, as it did, whether the conduct revealed such a lack of integrity or want of character as to be classified as misconduct. In drawing this conclusion, we observe for completeness that it is permissible for the Tribunal to make findings about contextual facts, provided that it does not result in a reformulation of the disciplinary charge (such that the officer is as a consequence later sanctioned for more serious conduct than the conduct for which he or she faces the disciplinary charge).[77]
  6. [99]
    The Tribunal erred in law to the extent that it found mitigating circumstances were relevant in determining whether the conduct was misconduct. That aside, in finding the JXR’s conduct was misconduct, it did not consider, or at the very least did not give weight to, alleged mitigating circumstances (such as JXR’s upset or self-reporting of the incident). Therefore, although the appeal is allowed in respect of the error of law, it did not infect the learned Member’s finding that the conduct was misconduct and is therefore not material to the decision made.
  7. [100]
    Alleged error 4: while conceding mitigating circumstances in that he could have been more upset by the prospect of a DVO because it would make him non-operational and explained the alleged conduct (in [194]), the Tribunal found his behaviour was misconduct.
  8. [101]
    JXR relies upon his arguments that mitigating factors are relevant to whether conduct is misconduct, except that he relates them here to the Tribunal’s findings in paragraph [194] of its reasons for decision, that:

Clearly, for someone in [JXR]’s position the prospect of a domestic violence order was a problem as it would make him non-operational and could have disciplinary repercussions so he was sensitive to it. This could have caused him more distress.

  1. [102]
    For the reasons discussed earlier, this argument must fail. As the Court of Appeal said in Dark,[78] distress or upset of an officer at the time of the alleged disciplinary transgression does not bear significantly upon the conclusions that may be drawn about an officer’s integrity. As an officer with a responsibility to uphold the law generally, and administer the DV legislation, JXR’s upset did not bear strongly on the conclusions to be drawn about his integrity and whether the conduct was misconduct.
  2. [103]
    No error of law is revealed by the learned Member’s acknowledgment of his likely distress because of his estranged wife’s assertion that she would apply for a DVO.
  3. [104]
    Alleged error 5: (in [195]), the Tribunal acknowledged JXR’s medical condition (adjustment disorder) as predisposing him to outburst behaviour, and noted that he was taking prescribed medication, Cymbalta, to assist with it. However, in finding that ‘Dr Jenkins gave no indication that the disorder could be any excuse for his behaviour,’ [79] the Tribunal implied the medication negated the symptoms, when the evidence suggests otherwise, and it failed to take into account his medical condition.
  4. [105]
    The submissions made by JXR are to the effect that having accepted that he had an adjustment disorder, the learned Tribunal erred in finding that it did not account for JXR’s behaviour in making the threats against his estranged wife. The submissions are to the effect that the fact of his diagnosis meant his conduct was excused by the condition and that the medication does not cure the symptoms. Accordingly, he says the Member relied upon ‘non-existent facts’, and ‘failed to take into account relevant considerations, as well as failing to base his decision on logically probative evidence.
  5. [106]
    For the reasons already explained, mitigating circumstances such as JXR’s adjustment disorder are not relevant to the issue of substantiation of the misconduct.

Observations about JXR’s medical evidence

  1. [107]
    In any event, it is useful to observe here, (because it is a recurring issue in JXR’s alleged errors of law and submissions), that even if mitigating circumstances such as an adjustment disorder, were relevant to substantiation of the charge it would not assist JXR. The mere finding that JXR had an adjustment disorder would not lead to the inevitable conclusion that JXR was not responsible for his own actions. The fact that outburst or defiant behaviour may possibly be a symptom of the condition would be irrelevant unless JXR had the symptom. The evidence here does not suggest he did. Therefore, even if it was relevant, as the Tribunal found, the medical evidence would not support a finding that JXR’s adjustment disorder was the cause of or excused or diminished his behaviour.
  2. [108]
    Dr Jenkins evidence, including his report of 29 July 2013,[80] and his oral evidence given in the domestic violence hearing,[81] suggests that JXR was medicated with Cymbalta from 2011 until at least 2013. It was used to manage his symptoms.[82] Although Dr Jenkins includes some general information about adjustment disorders at the conclusion of his report,[83] his report pertaining specifically to JXR does not suggest that JXR has the possible symptoms of defiant or impulsive behaviour that may accompany an adjustment disorder. Nor does it suggest that if they were his symptoms, that in Dr Jenkins’ opinion JXR’s behaviour, in making the threats, was a consequence of the condition or that JXR was not otherwise responsible for his actions. Similarly, the other medical evidence before the Tribunal does not suggest support JXR’s argument.[84] Therefore, even if the diagnosed condition was relevant to substantiation, no error would be revealed.
  3. [109]
    A further submission is made by JXR to the effect that the learned Member could not make a finding that there was no indication that his condition excused his behaviour because he is not a medical expert. The learned Member made no finding/s purportedly based on his own expertise in relation to medical matters. The Member’s task was to make findings of fact based on the evidence before him. The Tribunal’s findings complained about were open on the evidence, albeit that they were not relevant to whether the conduct was misconduct.
  4. [110]
    For the reasons set out earlier, the alleged mitigating circumstance of JXR’s diagnosed adjustment disorder was not relevant to assessing whether the conduct was misconduct. To the extent the learned Member found otherwise, he erred in law. Once again, as he did not then find that it excused the conduct, the learned Member’s decision that the conduct was misconduct was not infected by the error. Accordingly, the error was not material to the decision.
  5. [111]
    Alleged error 6: (in [198],) the Tribunal erred in finding that JXR’s failure to cooperate with Sergeant Hendrie was part of the reason the DV application proceeded, in circumstances when there was no requirement for him to cooperate, and when he did cooperate until Sergeant Hendrie attempted to take his service weapon and serve him with DV application in front of his peers.
  6. [112]
    In paragraph [198] of his reasons for decision, the learned Member concluded that JXR’s ‘lack of cooperation with the investigating officer was part of the reason  that the application proceeded’. JXR submits that this would have been an improper basis for the application because it demonstrates bias, presumably of Sergeant Hendrie, although he does not specify.
  7. [113]
    Also, JXR submits that there is no requirement for cooperation with an investigating officer. That said, he asserts that he was co-operative, relying upon a copy of an email he sent to Sergeant Hendrie,[85] other than when Sergeant Hendrie attempted to remove his weapons and serve him with the DVO application at work, while many of his peers were present.
  8. [114]
    He submits that the error of law was a reliance on non-existent facts (the lack of co-operation); failing to take account of relevant facts (his cooperation as per the email communication); and failing to base the decision on logically probative evidence (that is, an attempt to cooperate).

Discussion and conclusions – alleged reformulation of the disciplinary charges

  1. [115]
    In discussing the evidence before him about allegations of domestic violence in Matter 1a), including the counselling incident, the learned Member discussed Sergeant Hendrie’s evidence in the domestic violence proceedings.[86] In addition to detailing the events as he understood them, the report from Relationships Australia, and the history given by JXR’s estranged wife, Sergeant Hendrie also deposed to steps he took and interactions with JXR. It appears from his affidavit, that it was only after he had spoken to JXR that he concluded that a domestic violence application should be made, because he believed JXR’s behaviour was likely to continue.[87] Although it is not entirely clear from the reasons for decision, it appears that this is the basis for the Tribunal’s finding that JXR seeks here to impugn.
  2. [116]
    The disciplinary charge about the counselling incident does not raise an issue about JXR’s cooperation or otherwise with Sergeant Hendrie. In [198], it appears that the learned Member concluded from Sergeant Hendrie’s evidence that, at least in part, JXR’s behaviour towards Sergeant Hendrie led to the DV application being made.
  3. [117]
    It was not essential for the finding to have been made for the Member to conclude that the threats made at counselling were made, were domestic violence and were misconduct. Contextual findings are permissible,  although the disciplinary charge brought against an officer cannot be thereby reformulated by the Tribunal so as to make the conduct more serious than the charge.[88] Here, although the finding about JXR’s level of cooperation was not essential, it is contextual and of itself does not reveal an error.
  4. [118]
    Does the evidence support the findings made? The email relied upon by JXR as demonstrating cooperation is not, or at least we cannot locate it despite a search, contained in the s 21(2) documents consisting in all of over some 2000 pages, or the other evidence before the Tribunal,[89] although it is included in JXR’s Appeal Book which should only include documents that were before the Tribunal.
  5. [119]
    As we said before, the Tribunal did not err by not considering evidence that was not before it.
  6. [120]
    Assuming that the email relied upon by JXR was before the Tribunal although we cannot locate it, the Tribunal also had before it the evidence of Sergeant Hendrie about his interactions with JXR. It was open to the learned Member to prefer Sergeant Hendrie’s evidence on this point. If he did so, he was obliged to explain his reasons for doing so, but he did not. Failure to give adequate reasons for decision is an error of law. However, for the reasons explained in the following paragraphs, we have concluded that even if there was an error, the error was not material to the decision because the finding was not critical to substantiation of this aspect of the disciplinary charge.
  7. [121]
    The learned Member’s reasons for decision explain that he did not accept JXR’s evidence about his demeanour at the time of making the threats. He may have also concluded, although he does not say so, that JXR was unreliable in reporting his own demeanour and attitude in dealing with Sergeant Hendrie.  If so, the particular evidence relied upon to support that finding and the reasons for it are not apparent. That said, Sergeant Hendrie’s affidavit confirms that he did not decide the make the application until after he spoke with JXR, even though he says he had earlier concluded that the acts constituted domestic violence and that further violence was likely to occur.[90] There is, however, no evidence to support the submission that Sergeant Hendrie proceeded because of bias. Even if he did, that would not be relevant to substantiation of the counselling incident.
  8. [122]
    Finally, we consider later, in dealing with appeal about sanction, whether the disciplinary charge was impermissibly reframed by the learned Member resulting in JXR being sanctioned for misconduct more serious than that with which he was charged, as a result of the contextual findings about JXR’s lack of co-operation. (Although we conclude it was not).
  9. [123]
    In summary, if an error of law was made by the learned Member in failing to provide reasons for giving greater weight to Sergeant Hendrie’s evidence as identified in respect of which the appeal should be allowed, it is not material to the decision made by the Tribunal about substantiation of this aspect of the disciplinary charge.
  10. [124]
    Alleged error 7: the Tribunal erred in failing to take into account the mitigating factor of JXR’s former wife’s emotional, psychological and economic domestic violence towards him in preventing him from maintaining his connection to his children and refusing him access to property, while continuing an intimate relationship with JXR leading him to believe that reconciliation was possible, then telling him at the counselling session that there would be no reconciliation and threatening to obtain a DVO.
  11. [125]
    JXR again submits that the Tribunal failed to take into account relevant considerations. Here, he refers to paragraph [193] of the reasons for decision as follows:

[193] [JXR] claims that the threat was made as a result of a threat made to make application for a domestic violence order. His wife in fact said that she (sic) make an application for a domestic violence order as he had threatened to return to the marital home. This was the true threat ([JXR]’s emphasis)….Him saying though that he was going to return home in circumstances where he had been separated from his wife since August….

  1. [126]
    It appears that JXR contends that the Tribunal erred in not recognising that his estranged wife had committed acts of domestic violence against him. This is said to have occurred by way of emotional, psychological and financial abuse from the time of separation until the time of the counselling session, by letting him believe there was still some prospect of reconciliation, by controlling his access to his own property, finances (he had to pay most of their joint expenses) and the children. In particular, he refers to her threat to apply for a domestic violence order.
  2. [127]
    The connection between the submission and the Tribunal’s statement that ‘This was the real threat’, is not entirely clear. It appears JXR argues that the Tribunal thereby acknowledged that the real threat was his wife’s statement that she would apply for a DV order, and in doing so, it should have taken into account her alleged domestic violence against him.
  3. [128]
    At first glance, the learned Tribunal’s statement about the real threat is confounding, following as it does, reference to MR’s statement that she would make a domestic violence application. It does appear to be a finding that her statement was the real threat.
  4. [129]
    On a fair reading of paragraph [193], and surrounding paragraphs under the heading of ‘Discussion’ at [187-198], it is sufficiently clear that the learned Member did not accept that MR’s statement was the real threat. Indeed, it appears that the Member may have been discussing JXR’s submissions (in this regard, we refer back to [181]) in the sentences leading up to the apparent finding about the ‘true threat’. The Tribunal was cognisant of the matters raised about MR’s conduct but did not consider them relevant to determination of this aspect of the disciplinary charge.
  5. [130]
    The learned Member should perhaps have taken greater care in referring to submissions made by JXR. However, the ground of appeal and submissions do not disclose an error in the decision.
  6. [131]
    Alleged error 8: the Tribunal had no jurisdiction to make a determination that the conduct was domestic violence (in [187]) and its finding is ultra vires. It was entitled to do no more than find, on the Briginshaw standard,[91] whether misconduct occurred.
  7. [132]
    JXR contends that the Tribunal erred in finding that it must decide whether JXR committed an act of domestic violence at the counselling session, and whether it was an act of misconduct. He says the Tribunal had no jurisdiction to determine whether the conduct was domestic violence and that a decision about this is ultra vires. He argues all the Tribunal could do was consider whether the conduct was misconduct.  He argues again that in view of the mitigating circumstances, it cannot be misconduct.
  8. [133]
    In order to determine whether this aspect of the charge was made out, the Tribunal was obliged to determine whether the threats were made, whether they were an act/s of domestic violence, and then whether they were misconduct. JXR admitted having made the threat/s alleged in the charge.[92] The two questions identified by the Member in [187] remained for determination.
  9. [134]
    The argument that making a finding about domestic violence was ultra vires the Tribunal’s jurisdiction is apparently made by JXR on the basis that the Tribunal has no role in determining DV applications. That is irrelevant. It did not do so. It determined this aspect of the disciplinary charge. JXR appeared to concede this at the appeal hearing.[93]
  10. [135]
    To the extent that JXR again raises mitigating circumstances in his arguments, we have already considered whether the Tribunal erred in its treatment of mitigating factors when determining whether the conduct was misconduct. We refer to those earlier reasons for decision.
  11. [136]
    No error is revealed.
  12. [137]
    Alleged error 9: the Tribunal erred in finding the threat was misconduct (in [198]) in light of the mitigating circumstances and erred in finding JXR did not uphold the law because he did uphold it in self-reporting the incident to police (in [198]).
  13. [138]
    JXR contends that the Tribunal erred in finding that in making the threat/s, JXR did not uphold the law when as a police officer there was an expectation that he would do so, and that this was misconduct.[94]
  14. [139]
    JXR submits that he did all that he was morally, ethically and legally required to do, upholding the law in self-reporting the incident.[95] He says the Tribunal erred in failing to take this relevant consideration into account.
  15. [140]
    The difficulty with JXR’s argument is that the failure to uphold the law referred to by the learned Member, occurred when he threatened his estranged wife. The obligations of an officer to report his own conduct are not what the Tribunal referred to.
  16. [141]
    He further submits that the threats were not misconduct because of the mitigating circumstances. Again, to the extent that JXR raises the argument about the relevance of mitigating factors in determining whether conduct is substantiated as misconduct, we refer our earlier reasons for decision about this issue.
  17. [142]
    No error is revealed.
  18. [143]
    Alleged error 10: (in [372],) in deciding sanction, the Tribunal erred, amongst other things, in finding JXR did nothing to ameliorate/mitigate his threat, in circumstances that he was required to immediately leave but did then self-report resulting in loss of his weapon/s; and the Tribunal erred in finding that his former wife had not threatened him (when she threatened him with a DVO); and in contrast to [373] in finding, with respect to the threats against judicial and police officers, ‘and this time he did not even self-report’.
  19. [144]
    The ground of appeal appear to solely raise alleged errors in the Member’s findings about issues in paragraphs in the reasons for decision concerning the sanction to be imposed. The issues raised are discussed later under the heading of appeal against sanction.
  20. [145]
    To the extent that the alleged errors are also intended to be relevant to the Tribunal’s findings about matters relevant to substantiation, they have been discussed in previous paragraphs of our reasons for decision.  To the extent that the ground of appeal may be intended to again raise the relevance of mitigating factors (in relation to substantiation of the conduct in the determination of whether the conduct is misconduct), that issue was discussed earlier in our reasons for decision.
  21. [146]
    No error is revealed regarding substantiation of the counselling incident.

1.2 The false testimony incident: 4 alleged errors

  1. [147]
    Alleged error 11: (relating to [190-213, especially 203]), the Tribunal erred in finding JXR made a false statement because he had admitted the conduct/threat; and in stating ‘He admitted anger and then said he was frustrated…’ when the evidence is that he was angry only about the threat to take out a DVO, and frustrated about the ending of the relationship.
  2. [148]
    JXR submits here that the Tribunal erred because it failed to take relevant considerations into account,[96] incorrectly interpreted the facts and ‘failed to base its decision on logically probative evidence’.[97]  The actual error he alleges was made is less clear. He refers to extracts from the transcript in the domestic violence proceedings, in referring to the matters set out in paragraph [203] of the Tribunal’s decision, as follows:

[203]  [JXR] was then asked, ‘You would agree that you obviously did threaten her in a counselling session?’ He said ‘That’s not in dispute. I certainly made a threat during the counselling session’.

  1. [149]
    It appears that the relevant considerations that JXR’s contends were not taken into account by the Tribunal, were JXR’s other, repeated admissions[98] throughout the transcript that he made the threat/s. Further, he argues that having regard to his responses to certain of the prosecutor’s questions in cross-examination,[99] (although it is not made entirely clear which of quoted statements he refers to, in context it seems to be the extract from the transcript that immediately precedes the commencement of paragraph [100] of his submissions to the Appeal Tribunal). The statement complained about as incorrectly interpreting the facts and not basing its decision on logically probative evidence is quoted as ‘He admitted anger and then said he was frustrated…’ He has not referenced this quote to a particular paragraph of the Tribunal’s decision, but it appears to be drawn from [212].
  2. [150]
    JXR goes on to argue that he did not change his evidence to suggest that he was frustrated instead of angry.[100] He says he was frustrated about his wife’s statement that the relationship was ended and angry about the threat of his estranged wife to apply for a DVO, (which came shortly after it).
  3. [151]
    The Tribunal’s task was to determine whether the relevant aspect of the disciplinary charge (in this case, that he knowingly provided false testimony before Bundaberg Magistrates Court, by stating that his threat to kill his estranged wife was a flippant remark) was made out. The Tribunal set out various portions of the evidence before it in discussing the evidence from JXR and other persons and the findings made by Magistrate Smith.[101] He also discussed JXR’s characterisation contained in the domestic violence transcript that, in giving evidence that he delivered the threat/s calmly,[102] as well as Magistrate Smith’s findings about it.
  4. [152]
    In reaching its conclusions, the Tribunal rejected JXR’s evidence that he calmly delivered the threat/s.[103] In considering whether the threats were flippantly made, the learned Member rejected JXR’s submission that his intent or state of mind determined whether he made the threats flippantly.[104] The learned Member considered that it was in JXR’s interests to minimise the threats as ‘flippant’.[105] The Tribunal considered the perception of the threat, presumably by the other persons present, was relevant. It accepted that JXR admitted anger and then went on to say that he was frustrated. The learned Member went on to make a finding that JXR knew whether he was angry when he delivered the words and whether the words were delivered in anger.[106] Without explaining his reasoning as clearly as he perhaps could have done, it is sufficiently clear that the learned Member (reasonably in our view) inferred that if the threats were delivered in anger, it is inherently improbable that they were flippantly delivered. He concluded that in maintaining flippancy, in circumstances that he delivered the words in anger, JXR gave false testimony,[107]and that he knew his testimony was false.[108]
  5. [153]
    JXR’s evidence about how the threat was delivered was only part of the evidence considered by the Tribunal in determining whether he knowingly gave false testimony that the threats were made as flippant remarks. Although he may not have articulated the process he took as transparently as he could have, it is clear that the learned Member found JXR’s estranged wife’s exaggerated in describing JXR’s demeanour. It is sufficiently clear that he gave greater weight to the evidence of Ms Cook and Superintendent Bond. He also gave weight to the evidence about JXR’s own subsequent actions of reporting his behaviour to Superintendent Bond in reaching his conclusions, than he gave to JXR’s evidence about how he delivered the threat/s. As discussed, he found that it was in JXR’s interests to minimise the impact of the words.[109] Placing more weight on the evidence of dispassionate third parties is unremarkable and appropriate.
  6. [154]
    We make the observation that even if the Tribunal erred (as appears to be alleged by JXR) in finding that JXR changed his evidence to suggest that he was frustrated rather than angry when he made the threat (and it is with respect, not entirely clear whether this is what the learned Member meant by the statement), it would ultimately be irrelevant to the outcome on appeal. MR’s announcement at counselling that reconciliation was not possible and her raising of the prospect of a DV application occurred in quick succession. On JXR’s argument, the frustration occurred first and then he became angry. He made the threat, after the prospect of DV application was raised. He argues that this is when he was angry.[110] Having regard to the Member’s approach and findings, the argument would not assist him.
  7. [155]
    We do not identify Tribunal error.
  8. [156]
    Alleged error 12: (in [213],) the Tribunal erred in finding that JXR’s evidence that the threat was a flippant remark was knowingly false, because he was not charged with perjury and there is insufficient evidence to find it was knowingly false.
  9. [157]
    JXR’s contention is that the Tribunal failed to base its decision on logically probative evidence in finding his evidence that the threat/s was a flippant remark was false and that he knew it was false.[111] He submits that providing false testimony is perjury. He says that there have been no criminal charges of perjury. Therefore, he argues if there was insufficient evidence to charge him with perjury, it should follow that the Tribunal must similarly find ‘that the conduct does not reach the standard of proof required, applying the ‘Briginshaw principal’ for misconduct’.[112] In this regard, JXR submits that the standard of proof applicable in disciplinary proceedings is either the criminal standard of beyond reasonable doubt or ‘almost beyond a reasonable doubt’.[113]
  10. [158]
    It is well-established that the standard of proof in disciplinary proceedings is the civil standard, that is, the balance of probabilities applying Briginshaw as modified by later decisions.[114] Given the seriousness of the consequences of a disciplinary proceeding, reasonable satisfaction is not to be reached lightly or based on flimsy evidence.[115] The learned Member correctly articulated the relevant standard in his reasons and made its findings accordingly.[116]
  11. [159]
    That criminal charges for perjury were not brought against JXR was not an issue of concern for the Tribunal. Its function was relevantly to consider whether on the evidence before it, the disciplinary charges were established to the requisite standard.
  12. [160]
    No error is revealed.
  13. [161]
    Alleged error 13: the Tribunal erred in finding that the threat was not flippant, because the Tribunal cannot find JXR’s belief/state of mind was false.
  14. [162]
    JXR submits that his remark that the threats were made flippantly was true, and that the Tribunal cannot find his belief or state of mind to be false. He argues that he has consistently admitted the making of the threat/s, and that he was angry when he did so. The argument appears to be that consistency of his evidence about these matters was not considered in making the Tribunal’s relevant findings. He criticises the Tribunal for importing some level of unspecified aggression into the charge.
  15. [163]
    He says that if he honestly believed the remarks were flippant, then his testimony is not false, even if it could be said that he was ‘intellectually dishonest’ about it in the sense that other persons believed otherwise. He relies upon a philosophical argument that if a person believes that what he or she is saying is true, the person is not lying, even though it may be established that what they have said is in fact untrue.
  16. [164]
    He further argues, to the effect that, because the Tribunal cannot prove to the Briginshaw standard that he falsely said that he made the remarks flippantly or that it was not his belief, it erred because it based its finding on a non-existent fact.
  17. [165]
    Firstly, it was not for the Tribunal to prove that JXR falsely said he made the remarks flippantly. The parties place material before the Tribunal and the Tribunal make its decision based on the evidence according to law. Here, the Tribunal’s task required it to make findings about whether the disciplinary charge was established against JXR. In doing so, it had to make findings based on the evidence before it applying the relevant standard. The evidence about JXR’s manner of delivery of the threats was relevant. As discussed earlier, the learned Member gave greater weight to the evidence of Ms Cook, as well as Superintendent Bond in forming its conclusions about this aspect of the charge, having concluded that MR exaggerated and that JXR had an interest in minimising the impact of his words.
  18. [166]
    We do not accept that the learned Member’s reasons for decision import any level of unspecified aggression or frustration into the charge. The consideration of the manner of delivery of the words was relevant to determining the inherent probability that the threats were made flippantly, and if not, whether JXR knew they were not. The Tribunal did this in order to draw conclusions about whether the Deputy Commissioner had established to the requisite standard that the remarks were not flippantly made, and whether JXR’s evidence in the domestic violence proceedings to this effect was knowingly false.
  19. [167]
    No error is revealed. 
  20. [168]
    Alleged error 14: (in [209],) the Tribunal erred in finding that Ms Cook said JXR became very aggressive and did not consider the threat flippant (having regard to her other evidence); and in finding that (MR and) Superintendent Bond said he was ‘red in the face and clearly, he was aggressive and angry’. JXR alleges that, Superintendent Bond said he was ‘red in the face upset, agitated with tears in his eyes’.
  21. [169]
    The Tribunal at [209] in discussing the evidence about JXR’s demeanour, said:

…While [MR] may have exaggerated [JXR]’s demeanour in saying his eyes were bulging and his vein popping both she and Superintendent Bond says he was red in the face and clearly, he was aggressive and angry.

  1. [170]
    JXR submits that Ms Cook’s description of him is inconsistent with her actions because she did not report the threats for some 90 minutes and she confirmed that he left when asked without arguing. Also, he submits that Superintendent Bond did not describe him as angry, and in any event was not present when the threat/s were delivered. He submits that Superintendent Bond described him as red in the face, agitated, upset and with tears in his eyes. Inspector Bond’s evidence, JXR submits, did not suggest anger or aggression.
  2. [171]
    Paragraph [209] commences with the Member setting out his conclusion, having read ‘all of the testimony’, that the threat to kill was not made flippantly by JXR and that nor did JXR intend it to be so. In the sentences preceding the sentence complained about, the Tribunal refers specifically to evidence from Ms Cook that he ‘became very aggressive’ as the counselling session unfolded: recited at [161].[117] Then the learned Member discusses the evidence of MR and Superintendent Bond. It is sufficiently clear, as earlier discussed, that he placed greater weight on the evidence of Ms Cook and Superintendent Bond, and less on the evidence of JXR and MR, at least when it was inconsistent.
  3. [172]
    It is not clear to us that the Tribunal found that Superintendent Bond described JXR as aggressive and angry. The words ‘and clearly, he was aggressive and angry’ juxtaposed in the manner they are, (after referring to MR’s description and Superintendent Bond’s description,) is not said to arise from Superintendent Bond’s evidence. Ms Cook had described JXR as very aggressive.[118] In any event, it was open to the learned Member based on JXR’s own evidence, as discussed in previous paragraphs, to conclude that he was angry, and to reasonably infer from that evidence that he delivered the words in an aggressive manner. In addition to that, while Superintendent Bond’s affidavit[119] sets out a description of his observations of JXR’s demeanour at the time he was approached by JXR to self-report the threats made,[120] it also sets out JXR’s description of the events as provided to Superintendent Bond. The affidavit records that JXR said he became increasingly frustrated in the counselling session, and ‘caused him to become very angry’. [121]
  4. [173]
    While the learned Member could perhaps have more clearly explained himself, no error is identified because irrespective of the basis for the conclusion that JXR was angry and aggressive, it was supported by a variety of evidence, including JXR’s own evidence.

1.3 The threats to judicial officer and police officers incident: 6 alleged errors

  1. [174]
    Alleged error 15: (in [272],) the Tribunal erred in finding the behaviour was misconduct rather than a breach of discipline (if at all given the mitigating circumstances) having regard to the tables (referred to and reproduced in Garth v Qld Police Service[122])set out in Ethical Standards Command Training Materials because it is in the nature of incivility or rudeness, demeanour.
  2. [175]
    In making his submissions about this grounds of appeal, JXR accepts that the allegations against him are substantiated. However, he contends that the conduct was a breach of discipline, rather than misconduct. He relies upon tables drawn for Ethical Standards Command training materials setting out examples of variously misconduct and breach of discipline that are reproduced in Garth v Queensland Police Service.[123]
  3. [176]
    JXR argues that having regard to the tables, the substantiated conduct is more akin to the examples of improper behaviour, demeanour/attitude, incivility and rudeness referred to as examples of breach of discipline, rather than the examples of misconduct. He says the Tribunal erred because it ‘failed to take relevant considerations into account’, that is, it seems, the tables in Garth, and thereby ‘failed to base the decision on probative evidence’.
  4. [177]
    It is not apparent that the Ethical Standards training materials in which the tables appear were in evidence before the Tribunal. If they are located in the voluminous s 21(2) documents, we were not referred to them. It was open to JXR to nevertheless draw the Tribunal’s attention to the decision in Garth when he made his submissions and for the Tribunal’s attention to be directed to them in this manner. He does not refer us to where he did so. In any event, it is irrelevant to the Tribunal’s finding that the behaviour was misconduct for the reasons explained in the following paragraphs.
  5. [178]
    The definitions of breach of discipline and misconduct and the irrelevance of mitigating circumstances to substantiation of the charges were discussed in previous paragraphs of our reasons for decision. Breaches of discipline are plainly confined, relatively speaking, to more minor transgressions occurring in or relating to officers’ official duties, whereas misconduct, describes more serious conduct that is disgraceful, improper, unbecoming an officer or demonstrates unfitness to be an officer, or fails to meet the standards that the community is reasonably entitled to expect from officers that may or may not occur in the course of or relate to the performance of an officer’s official duties. The tables in Garth are for internal use by the police service as training materials. The examples set out in the tables in Garth, do not, and cannot, in any way modify or affect the proper construction of the legislative definitions.
  6. [179]
    The allegations about the threats to judicial and police officers were admitted.  Although JXR claimed to have no recollection of what he said, after the police recording of the conversation was played to him during the disciplinary investigation, he acknowledged making the threats. He did not accept that they should have caused concern: they were made off the cuff and were ‘clearly flippant’ according to JXR. Indeed, he went so far as to say that he only made them because the conversation was being recorded by police officers.[124] Despite arguing that the conduct, if a disciplinary transgression at all, is a breach of discipline, JXR does not make submissions about how the conduct was a breach of the PSA Act; the Police Powers and Responsibilities Act 2000 (Qld); or a direction of the commissioner.
  7. [180]
    The Tribunal set out the definition of misconduct early in its reasons for decision.[125] The learned Member did not refer to or consider the definition of misconduct directly again in making the finding sought to be impugned in this ground of appeal. That said, his findings make it clear that he considered the behaviour was abusive, totally inappropriate, and demonstrated no regard for the police service. After considering and discussing the evidence before him and the submissions made by the parties, the Member made findings that:

[272] When he was interviewed, he accepted that he made the threats and indicated that in the circumstances his comments were reasonable. What is clear that in the way he was speaking to the officers one of whom he knew, Sergeant Gillard he was using the language that a person who had no regard for the police force would use and there is no indication that he saw himself as a serving officer. While it was clear that the threats would not have been made if the police officers had left when they were informed that he was safe there was no justification for him to say those things and then the next day not make every attempt to reassure all concerned that he was simply venting. I am reasonably satisfied that [JXR]’s conduct in making those threats was misconduct and any serving officer would have felt demeaned by being subject to such abuse and it was totally inappropriate to make the threats he made….

[273] As an officer of the law it was totally inappropriate for [JXR] to threaten a member of the judiciary and also other serving police officers. One of whom Sergeant Hendry (sic) worked in the same station as [JXR]. (sic).

  1. [181]
    Given the conclusions reached by the learned Member, there is no error in his finding that it was misconduct. It is sufficiently clear from his findings that the learned Member regarded JXR’s conduct in making the threats as, at least, improper, unbecoming an officer, demonstrating unfitness to be an officer and not meeting the standard reasonably expected by the community of a police officer.
  2. [182]
    No error is revealed.
  3. [183]
    Alleged error 16: (in [272],) the Tribunal erred in relying upon inexact proofs, indefinite testimony and indirect references in finding that ‘any serving police officer would have felt demeaned by being subject to such abuse and it was totally inappropriate to make the threats he made’. Relying on the  Briginshaw standard; JXR’s statement that he didn’t ‘mean anything by it’.; and the failure to bring any criminal charges because he had no intention to action the threat.
  4. [184]
    JXR argues that the Tribunal erred in making the finding in paragraph [272], to the effect that JXR’s language was generally abusive and that any police officer would have felt demeaned by the abuse. He describes the error as reliance on inexact proofs, indefinite testimony and indirect references.[126] He relies upon dicta of Dixon J in Briginshaw. He argues that there was no evidence any officer felt demeaned; was directly subject to abuse; or that the comments made were a threat.
  5. [185]
    In making the submission, he argues that the evidence is clear that he was ‘simply venting’[127] and did not intend to carry out the threats. He relies upon his recorded statements at the same time as follows:[128]

Make sure you get this on tape. I will kill Smith, I will kill Hendrie, and I will kill Grigoris, and I will kill Elder, if I ever see them. So do with that what you like…you want to tape record me Brett that’s disgusting… and that’s why I’m saying it… I don’t mean anything by it...

  1. [186]
    Also, he argues that there were no criminal charges flowing from the conduct. He relies upon that part of the disciplinary investigation report in which it is said, that when considering the offences of  ‘threatening violence’ and ‘intimidation of judicial officers’, courts have determined, respectively, that the person must be holding a weapon when the threat is made and whether a person making the threat has the intention and capacity to carry out the threat.[129] Accordingly, he says no offence occurred; no person was directly abused, demeaned or threatened. He submits that accordingly the Tribunal based its decision on non-existent facts, failed to take relevant considerations into account, and thereby failed to base its decision on logically probative evidence.
  2. [187]
    There is no issue that the words alleged were said, and nor that JXR said that he did not mean anything by it. The language used by JXR in making the threats, as the disciplinary charge details, included many uses of the words ‘fucking’ and ‘cunts’, in respect of the judicial officer and serving police officers towards whom the threats to kill were directed. Although none of them, the judicial officer and those particular police officers the subject of his words, were present when the threats were made, as discussed earlier, the learned Member found the language used in making the threats was abusive and demeaning to the police officers who were present, because it demonstrated a lack of regard for the police service, as well as that it was entirely inappropriate for him to threaten the persons concerned.
  3. [188]
    It is irrelevant that criminal charges were not brought, nor that there may have been insufficient evidence to prove the offences discussed by the investigator. JXR faced the disciplinary charge brought against him.  The relevant aspect of the charge was of misconduct for making the threats admitted by JXR. The Tribunal was required to determine whether his conduct was misconduct. Although the learned Member did not set the definition of misconduct out in again in the paragraphs of the decision to which this ground of appeal relates when making the findings sought to be impugned in relation to this aspect of the disciplinary charge, it is sufficiently clear that he was cognisant of it.
  4. [189]
    JXR’s complaints are directed to whether the definition of misconduct is met. The learned Member considered the threats made and JXR’s language in making them abusive, totally inappropriate, and indicated a person with no respect for the police service, and demeaning to those officers present. JXR complains that there is no evidence any officer felt demeaned. The Member does not say that there is. The Tribunal may draw reasonable inferences from the facts as found. Although the Member has not explained it in those terms, it is apparent that he did so in considering the issue objectively from the public perspective. Hence, he refers to how any officer, not a particular officer/s would have felt listening to what can only be described as a tirade of expletive-ridden abuse. The Tribunal did not go on to find, although it was open for it to do so on the evidence, that JXR’s conduct also demonstrated a disturbing lack of respect for and confidence in the role performed by police officers in administering the DV legislation and in the justice system generally in dealing with the scourge of domestic violence.
  5. [190]
    In other words, as discussed earlier, the learned Member’s findings support his finding that the conduct was misconduct. Although he did not refer specifically to the relevant aspects of the definition, and instead jumped straight to the finding of misconduct, it is sufficiently clear that this was what he did.
  6. [191]
    In summary, the findings of fact and inferences he drew from them were supported by the evidence. They supported the finding that the behaviour was misconduct because it was improper, unbecoming an officer, shows unfitness to be or continue to be an officer, and does not meet the standard reasonably expected of a police officer.
  7. [192]
    No error is revealed.  
  8. [193]
    Alleged error 17: (in [270],) the Tribunal erred because, as it acknowledged in [269], JXR did not bring about the circumstances in which the threats were made and in failing to take into account the trespass committed by the officers concerned.
  9. [194]
    JXR clarified at the Appeal Tribunal hearing that this ground of appeal has two aspects.[130] Firstly, he submits that the Tribunal erred in finding that the conduct was misconduct by not taking into account the actions of the police in creating the circumstances in which the threats were made.  Secondly, he says the Tribunal did not consider his submissions to the Tribunal about trespass by the police. In particular, he relies upon a decision in a matter of Kuru v State of NSW.[131]  Thereby he says it failed to take relevant considerations into account and failed to base its decision on logically probative evidence.[132]
  10. [195]
    The learned Member found that the conduct occurred in circumstances that were not of JXR’s making.[133] It was two days after the DVO was made. JXR was on one month’s sick leave. He was deeply distressed. He had sought an appointment with his psychiatrist, but could not obtain one for several days. In the meantime, he was staying at the home of his brother and sister-in-law, who were looking out for him. He had overindulged in alcohol, even though he knew this was inadvisable while taking Cymbalta, and had taken sleeping tablets. Police officers arrived unexpectedly at 10.30pm in the evening to perform a welfare check because JXR had earlier told a police officer friend that he was having suicidal thoughts. When the officers arrived, JXR’s brother told the officers he was fine. The officers persisted with seeing and speaking with JXR. Had they not attended as they did, or insisted on seeing him, despite his brother’s reassurances that JXR was fine, the events could not have transpired. JXR argues that the circumstances, in which police attended him unrequested and unannounced; late at night; at a time when he was distressed but had made appropriate arrangements to stay with family; and his judgment was compromised by prescription drugs and excess alcohol consumption, are relevant context in deciding whether the conduct was misconduct.
  11. [196]
    The Tribunal extracted the transcript of the conversation between police officers and JXR,[134]and set out evidence gathered during the investigation process.[135] After acknowledging that JXR did not place himself in the situation, the learned Member discussed the events and surrounding context.  The learned Member also acknowledged that JXR had said that he did not mean anything by the threats.[136] It seems the learned Member considered it significant that, despite the urgings of others, to deal with the threats the next day, he did not, in breach of his obligations as an officer.[137] He took no steps to reassure all concerned that he ‘was simply venting’.[138] Further, he was critical of JXR’s apparently dismissive attitude, about the events during the disciplinary investigation, in suggesting that the threats were trivial.[139] In this regard, the Tribunal referred to evidence in which JXR suggested that he considered his threats were not inappropriate, made at home in his backyard.[140] He sniggered at times while he was listening to the recording of the conversation within which the threats were made.[141] He denied having any concerns about the threats he had made.[142] JXR suggested that he had behaved reasonably in the circumstances. [143]
  12. [197]
    The Tribunal found the conduct was misconduct. There was no error in this: the Tribunal found that JXR’s conduct amounted to abuse demeaning for the attending officers and was totally inappropriate.[144] The finding was open to the Tribunal on the evidence. Although the learned Member’s approach may not have been expressed as clearly as it could have been, it is sufficiently clear that he, while properly cognisant of the context in which the threats occurred, did not take mitigating circumstances into account in determining that the conduct was misconduct. The irrelevance of mitigating circumstances in determining whether conduct is misconduct were discussed earlier.
  13. [198]
    In Karu, proceedings were brought against the State of New South Wales for trespass to land, trespass to person and false imprisonment arising out of the actions of police officers who attended a domestic disturbance at private premises, and did not leave when requested to do so by the occupier. There was discussion about the powers of police officers to remain on the premises under the relevant NSW legislation. JXR also provides extracts or summaries from a variety of other decisions in his Appeal Book.[145] Most are said to relate to decisions about trespass. Police v Dafov[146] concerned a an appeal against a decision to dismiss a charge of resisting arrest and refusing to provide personal details on the basis that the police officers were trespassing on the person’s property when they arrested him.
  14. [199]
    The proceedings before the Tribunal concern a disciplinary charge, rather than a claim for tortious damages for trespass or criminal charges. It is not readily apparent how the cases relied upon by JXR are said to be applicable here. For the reasons discussed earlier relating to the purpose of police discipline, the proceedings serve a different purpose from criminal proceedings. In any event, each party to proceedings must act in their own interests in Tribunal, and Appeal Tribunal proceedings, including developing any argument the party submits it should consider.  Although JXR submits that the Tribunal should have considered his arguments about trespass, he does not go further to explain how this resulted in the wrong conclusion was made by the Tribunal. It does not appear to us to be relevant.
  15. [200]
    JXR has not identified an error said to have been made by the Tribunal, other than, perhaps, a failure to address submissions that he may have made about this issue in the review proceeding. Failure to give adequate reasons for decision is an error of law. However, failure to consider irrelevant evidence or address an apparently irrelevant submission cannot be an error.
  16. [201]
    Alleged error 18: (in [269]) the Tribunal erred in finding that JXR ‘knew that the drinking of alcohol’ while on medication for his adjustment disorder was not advised ‘as the medication increased the effects of alcohol’. This was an error because the Tribunal has no medical expertise; and in so finding took into account an irrelevant consideration and failed to base the decision on probative evidence.
  17. [202]
    JXR submits that the Tribunal erred in making the findings it did, because it is not an expert in the medical condition, nor the medication taken by him. After referring to fact sheets explaining the possible side effects of drinking alcohol with the medications he had reportedly taken on the evening during which the events occurred, Cymbalta and Temaze (a sleeping tablet) he submits that the Tribunal relied upon non-existent facts, (that is, that the medication mixed with alcohol had no effect on the conduct as alleged nor that ‘the applicant knew the medication ‘increased the side effects of alcohol)[147] JXR argues that accordingly the Tribunal took irrelevant considerations into account and did not base its decision on logically probative evidence.
  18. [203]
    The difficulty with JXR’s submission is that the Tribunal did not purport to base its decision on its own expertise in medical matters. It made findings based on the evidence before it.
  19. [204]
    During the investigation process, JXR was interviewed. In respect of the day in question, JXR was asked about the medication he had taken[148] and the effect it had on him. He suggested that it had none, other than treating depressive symptoms. However, he said that his medical practitioner had explained that when a person takes Cymbalta, it takes longer for the liver to break the alcohol down with the effect that the alcohol has greater effect on the person.[149] He said it was recommended to him that alcohol not be taken with it. He also described taking two Tamaze tablets, shortly before the events in question, because he was intending to go to bed.[150] He was also asked about the alcohol he had consumed throughout the day, and disclosed drinking a couple of beers and 15-16 cans of rum and cola, saying that it was the biggest drinking session he had had in a long time.[151]  He said he was drinking heavily because he was depressed.[152] He confirmed that his doctor had told him that alcohol affected a person more while taking the Cymbalta.[153]
  20. [205]
    The Tribunal refers to this evidence in its reasons for decision.[154] It is sufficiently clear that the findings complained about in this ground of appeal were based on that evidence of JXR himself in reporting his medical advice about the combined effect of Cymbalta and alcohol.
  21. [206]
    The Tribunal did not err in the manner alleged because JXR’s own evidence supported the finding. Even though JXR has no medical qualifications, the Tribunal was entitled to give weight to his own report of the medial advice he received.
  22. [207]
    Alleged error 19: in [270, 271], the Tribunal erred in finding that JXR ‘does not retract any of the threats during the conversation’. when the transcript records that he did say ‘….I don’t mean anything by it’.[155]; and in finding he did not self-report the incident because it occurred while he was on sick leave in the presence of police who came to his premises when he said he wanted nothing to do with police.
  23. [208]
    JXR submits that contrary to the learned Member’s finding at [270] that he did not retract the threats made, JXR says he did so by saying (at the time of making the threats) that he did not mean anything by it. Further, he says he cannot be criticised for not self-reporting the incident to police when he said at the time, in the presence of police, words to the effect of go back and report that.[156] Accordingly, he regards the Tribunal’s finding as nonsensical, presumably on the basis that he says that he did thereby retract the threats and report the incident, and an error of law. He also complains that he had said he wanted nothing to do with the police at that time when he was on sick leave, although the relevance of this to the ground of appeal is not apparent.
  24. [209]
    As discussed earlier, the Tribunal quoted extracts from the transcript of the audio recording of the interaction between JXR and Officer Gillard.[157] JXR did say that he wanted nothing to do with police. His comments suggest that he considered police officers involved in the domestic violence application had acted against him, although he had dedicated his life to the job, and he wanted nothing to do with police officers generally as a consequence. JXR did, during the events, towards the end and after the threats had been made, say that he did not mean anything by the threats.[158] Perhaps curiously, he said that he was ‘saying it’ (in context, making the threats) because the officers concerned were recording it.[159] He also invited the officers to, ‘take it back and do with it what you like’.[160] Earlier, after making some of the threats, he had also suggested to them or invited them to ‘report that because I fucking will’.[161]
  25. [210]
    As discussed previously, it was clearly acknowledged by the Tribunal, that the circumstances in which the threats were made were not of JXR’s  making.[162] The learned Member also acknowledged that JXR had said that he did not mean anything by the threats.[163] When the Member states that JXR did not self-report, it is plain that he does this in the context of considering steps that JXR was invited to consider taking upon reflection the following day, after the effects of the drugs and alcohol had worn off in an effort to limit the fall-out in the aftermath of the threats. He observes that JXR did not take any such steps. Rather, even during the subsequent investigation, the learned Member found that JXR indicated that he considered his conduct on the evening in question was reasonable.[164] The Tribunal considered that even though the threats would not have been made if the officers left, there was no justification for the threats, and no attempt to overcome the effect of them. He considered the language used was so offensive, and that it demonstrated a person who had no regard for the police force. He found it was misconduct.
  26. [211]
    As discussed earlier, the learned Member did not specifically refer back to the definition of misconduct or use the words of the definition. That said, as discussed, it is sufficiently clear that based on his findings, the finding was open to him, and he did so find.
  27. [212]
    Accordingly, JXR’s submissions do not disclose Tribunal error. The Tribunal was cognisant of and considered the matters about which he complains in this ground of appeal. It made its conclusions based on the broader facts discussed, not only those raised here.
  28. [213]
    Alleged error 20, the Tribunal erred in failing to base the decision on logically probative evidence by failing to take into account the many mitigating factors raised by JXR.
  29. [214]
    JXR submits again that in making the findings that the conduct was misconduct, the Tribunal failed to take into account his mitigating circumstances. He suggests that the mitigating factors include his admissions about the conduct; the fact he was on sick leave at the time; the fact that he was at home and the officers were trespassing at the time; his extensive legal bills arising out of the DVO and Family Court proceedings; that he was under the influence of alcohol; that he was being investigated by Ethical Standards Command; the loss of his lengthy marriage; and that he was diagnosed with an adjustment disorder with depressed and anxious mood.
  30. [215]
    JXR clarified at the oral hearing that his submission is that the circumstances provide a defence to the disciplinary charge, in the same manner that a person would be found not guilty of a criminal offence if they established a defence.[165]
  31. [216]
    We have already considered this argument. No error is revealed. 

1.4 Disorderly conduct: the OL incident: 9 alleged errors

  1. [217]
    Alleged error 21: (in [306]) the Tribunal erred in finding that the abusive statements/language ‘continued for some time’ and ‘abuse continued for a period of 10 minutes’ as the CCTV footage and witness statements suggest that it occurred, at worst, for somewhere between less than 1.5 minutes and 5 minutes; and in doing so, the Tribunal erred in impermissibly reframing the charge.
  2. [218]
    JXR acknowledges that he said the words alleged to Senior Constable OL. He denies that ‘the abuse continued for a period of 10 minutes until [JXR] walked away’.[166] He says that the CCTV evidence, although it does not include audio,[167] suggests his comments as alleged occurred during a period of less than 1.5 minutes. He acknowledges that Christian Anderson’s evidence was that it occurred over approximately 4 minutes; Constable AE said it occurred over a number of minutes; and Constable Wells evidence suggests that during the 5 minutes or so that she sat in her police vehicle (before driving away), she observed JXR to continue to shout towards the police vehicles.
  3. [219]
    He argues that in making the finding that the behaviour occurred over 10 minutes that the Tribunal reframed the charge. He says the Tribunal was not entitled to consider evidence that was not relevant, presumably as to the length of time over which it occurred.  He argues that had it gone on for 10 minutes, the conduct would have been more serious conduct than in fact it was and that the Tribunal thereby impermissibly reframed the disciplinary charge.[168] In his oral submissions at the hearing of the appeal proceeding, JXR clarified that he contends that, at most, the conduct occurred over a maximum of 6.5 minutes.[169]
  4. [220]
    The Deputy Commissioner submits that whether the conduct went for 1.5 minutes or 10 minutes, is of little consequence. His counsel was, unhelpfully, unable to say whether JXR was correct about the CCTV evidence. However, he submits that even if the evidence supports a finding that the events occurred over some shorter duration, it is not significant and does not bear on the Tribunal’s finding that the conduct was misconduct.
  5. [221]
    As JXR contends, the disciplinary charge as framed does not import a time period over which the conduct occurred. The learned Member found that the verbal abuse continued for 10 minutes. The charge was that JXR screamed at Senior Constable OL as she exited the hotel, when police had attended for an alleged disturbance, ‘you fucking dog cunt, you slut, you fucking dog cunt’. ‘Come on slut, what are you going to do about it’. JXR does not dispute this occurred. He says that finding that it continued over 10 minutes makes it a more serious charge.
  6. [222]
    The disciplinary charge is about JXR’s conduct in screaming at a fellow officer in an inappropriate, abusive and derogatory manner in  public. Whether it occurred over 1.5 minutes, 6.5 minutes or 10 minutes does not affect the Tribunal’s findings that it occurred as a matter of fact, and that it was misconduct.
  7. [223]
    A finding about the period of time over which the conduct occurred is not of itself impermissible and is a relevant contextual fact. No material error is revealed in relation to the substantiation of the conduct as misconduct. 
  8. [224]
    Alleged error 22: (in [307]) the Tribunal erred by relying on a non-existent fact in finding that ‘[JXR]’s language may explain why they don’t want him back at the station’. 
  9. [225]
    In paragraph [307], the learned Member said: ‘Senior Constable [OL] only spoke to [JXR] once indicating that [JXR]’s language may explain why they don’t want him back at the station’.
  10. [226]
    JXR submits that ‘the station’ was not mentioned. He submits that the comment related to the ending of a previously close friendship with Senior Constable OL, a relationship with Constable AE and domestic arrangements he had shared with them. The Deputy Commissioner’s representative was, unhelpfully, unable to comment upon JXR’s interpretation of the evidence.
  11. [227]
    Senior Constable OL did not provide a statement. However, in paragraph [280], the Tribunal referred to the evidence of Constable AE. In her statement, among other things, she said that she heard Senior Constable OL yell back at JXR, ‘You wonder why we don’t want ya (sic) anymore [JXR]’.[170] In [283], the Tribunal records that Constable Wells’ statement records that Senior Constable OL yelled back, ‘You wonder why they don’t want you [JXR]’.[171]
  12. [228]
    As the Tribunal had recounted, there was evidence from JXR that Senior Constable OL and JXR had been close friends and that she had previously been supportive of him. However, according to JXR, the friendship had soured.[172] He submits that the Tribunal erred in inferring that Senior Constable OL’s comments were about his colleagues not wanting him back at work at the station, when he understood it related to their personal friendship and previous domestic arrangements.
  13. [229]
    It is not ascertainable or apparent from the evidence to which our attention was drawn whether/if the inference drawn by the Tribunal was correct. What Senior Constable OL meant is not ascertainable. However, the inference drawn was not inconsistent with the evidence. In any event, it is not materially relevant to the finding that the behaviour was substantiated as misconduct.
  14. [230]
    Alleged error 23: (in [308-309]) the Tribunal erred in failing to take into account the variety of mitigating factors raised.
  15. [231]
    In paragraph [308-309], the learned Member discusses JXR’s evidence, in particular his response during the disciplinary investigation about why he said the things set out in the disciplinary charge to Senior Constable OL. These include the following. He explained that she had been a supportive friend, but she no longer was. He thought this was because he had been gossiping about her and another person. He blamed her for the breakdown of a relationship he had been involved with another female officer, that is, Constable AE. He had also said that he had consumed alcohol, which he considered was self-medicating. In the transcript of his evidence, he said this was because he ‘had that many things going on’.[173] These things included the making of the DV order; the DV appeal; huge legal bills; being denied contact with his children; being denied access to his personal property; being unable to return to work; and the Ethical Standards investigation. He acknowledged being stressed and having been diagnosed with an adjustment disorder. He later suggested that he had also lost a promotion. He presented for admission to Belmont Hospital later that day.
  16. [232]
    The alleged error of law is the learned Member’s failure to take many and varied mitigating circumstances into account, including those referred to in [308-309]. Thereby, he says the Tribunal failed to take relevant considerations into account and to base its decision on logically probative evidence.
  17. [233]
    The relevance of mitigating circumstances to substantiation has been discussed previously. 
  18. [234]
    The learned Member was cognisant of the circumstances in which the conduct occurred. However, although he considered the context of the conduct, quite properly he did not find that the alleged mitigating factors relevant to his determination of whether the conduct was misconduct. It is clear that he did not accept that it excused the behaviour,[174] which he found was ‘disgraceful, improper and unbecoming an officer’.[175]
  19. [235]
    No error is revealed.
  20. [236]
    Alleged error 24: (in [310-311]) the Tribunal erred as follows:
  1. (i)
    in finding that as a result of his adjustment disorder, JXR’s ‘cortisol levels were at their maximum limit…’, when the submission and the evidence was to the effect that they were extremely high, rather than at their maximum;
  2. (ii)
    the symptoms of JXR’s adjustment disorder included defiant, impulsive behaviour and high cortisol levels, affording JXR a defence of temporary insanity; and
  3. (iii)
    in not taking his medical condition into account as a mitigating circumstance, thereby discriminating against JXR on the basis of his impairment.
  1. [237]
    JXR submits that he had submitted only that his cortisol levels were extremely high, rather than at their maximum limit. He says that the Tribunal’s finding demonstrates an error of law because it is based on a non-existent fact and failed to take into account relevant considerations.
  2. [238]
    Again, the Deputy Commissioner’s representative was, unhelpfully, unable to make submissions about whether JXR’s interpretation of the evidence was correct about the cortisol levels. He submits that it is, in any event, irrelevant whether they were extremely high or at maximum level.
  3. [239]
    The Tribunal did not, in any event, find that JXR’s cortisol levels were at their maximum level. It said that JXR submitted that they were.[176] The Tribunal made no finding about the cortisol levels in considering substantiation. We agree that whether the levels were at their maximum limit or extremely high is irrelevant to the finding that the disciplinary charge was established as misconduct. No error in the decision made is revealed by it. 
  4. [240]
    The learned Member discussed JXR’s submissions to the effect that symptoms of his adjustment disorder included acting defiantly and impulsively.[177] In making his findings, the Tribunal did not specifically discuss whether the medical evidence supported the submission. While it is not controversial that JXR was diagnosed with an adjustment disorder, as discussed earlier in considering other grounds of appeal, (even if it was relevant to substantiation of the charge) the evidence would not have supported a conclusion that JXR’s symptoms (as opposed to the possible symptoms) of an adjustment disorder included acting defiantly and impulsively.
  5. [241]
    In any event, the learned Member did not make a finding to this effect. However, it is sufficiently clear from his reasons at [313-316], that he did not accept JXR’s submission. He acknowledged that JXR was stressed and had a diagnosis for the condition, for which he was receiving treatment. Further, he found that JXR knew that drinking alcohol while taking the medication could cause him to act inappropriately. He found that his illness did not excuse his behaviour, ‘it was being treated’.[178] [315]. Further, the Tribunal found that JXR could have controlled his drinking.[179]
  6. [242]
    In relation to JXR’s cortisol levels, the learned Member discussed JXR’s submissions that high cortisol levels cause a chemical imbalance resulting in a person saying things they do not mean and regretting it immediately afterwards.[180] At the DV hearing, Dr Michael Keogh gave evidence about the possible effects of high cortisol levels.[181] That evidence was before the Tribunal. In the five years or so before the DV hearing in mid-2012, JXR’s cortisol levels had been monitored post-surgery (for a condition of Cushing’s Disease that had been fully treated and was not symptomatic at the relevant time) and they were not elevated.[182] However, it seems that in January 2013 his cortisol was at the upper limit of normal range; on 1 or 2 March 2013, it was elevated above the normal range; and by May 2013, it had decreased to normal parameters.[183] We say it seems, because the pathology report containing the results does not identify the patient. The report contains generic information about the possible effects of elevated cortisol. Whether JXR had all or any of the possible symptoms is not reported.
  7. [243]
    A report of 26 March 2013, of Dr Baruah, psychiatrist confirms that JXR was admitted to Belmont Hospital on 28 February 2013, with symptoms suggestive of an adjustment disorder recounting similar stressors to those previously discussed throughout these reasons for decision.[184] He is reported to have settled quickly after admission and was discharged on 11 March 2013. There is no discussion about the effect if any of elevated cortisol levels  on him at that time, although the then recent elevated result had been referred to his endocrinologist for investigation. Dr Baruah refers to alcohol abuse by JXR.
  8. [244]
    We again refer to our previous discussion about JXR’s contention, as related to substantiation of the charge, about the Tribunal’s treatment of his adjustment disorder and the alleged defence of insanity. (Also, for completeness, we observe that even if it was relevant, in any event, we have not been referred by JXR to, and have not located in the medical evidence that was before the Tribunal, evidence that would have supported a finding that the elevated cortisol levels were a causative factor for JXR’s conduct and that he was not responsible for his actions). 
  9. [245]
    Although the learned Member could perhaps have more clearly and fully expressed his reasoning, an examination of the evidence supports the findings he made and the conclusions he reached.
  10. [246]
    In relation to JXR’s final point, this is a disciplinary proceeding, not a claim in relation to discrimination. We do not propose to address the final point raised.
  11. [247]
    No error is revealed.
  12. [248]
    Alleged error 25: (in [313]) in finding that the use of ‘obscene and offensive’ language was misconduct, rather than a breach of discipline, (if either, having regard to the mitigating circumstances) under the ‘tables’ referred to in Garth’s case.
  13. [249]
    Once again, this ground is based upon JXR’s interpretation of the tables set out in Garth. Again, he submits that that the conduct is not misconduct, rather, if anything at all, only a breach of discipline having regard to the mitigating factors. Again, he contends the Tribunal therefore failed to take relevant considerations into account and failed to base its decision on probative evidence.
  14. [250]
    We have previously discussed the arguments raised by JXR about the relevance of mitigating factors in determining whether the disciplinary charge is established as misconduct or breach of discipline, as well as the relevance of the tables reproduced in Garth.
  15. [251]
    The learned Member found that JXR’s conduct did not meet the standard required of an officer;[185]was disgraceful, improper; and unbecoming an officer.[186] Those findings bring the conduct within the definition of misconduct.
  16. [252]
    No error is revealed.
  17. [253]
    Alleged error 26: (in [313]) the Tribunal erred in finding that ‘…[JXR] used this language towards a colleague in public where many people heard it…’, as the CCTV footage demonstrates that 3 security guards and one other person were present only.
  18. [254]
    JXR submits that the Tribunal erred in making the finding that the language was used in public where many people heard it, having regard to the CCTV footage. He says therefore that the Tribunal relied upon a non-existent fact.
  19. [255]
    Again, the Deputy Commissioner’s representative somewhat unhelpfully was unable to make submissions about whether JXR was correct about the evidence about who was present, although he submitted that it did not matter as it is clear that at least 4 people having heard it, it was reasonably found by the Tribunal that many people heard it.
  20. [256]
    The preceding sentence, of the Tribunal’s reasons for decision, to the one sought to be impugned, was to the effect that JXR’s language was obscene and offensive and would not be acceptable to an ordinary member of the public if used towards them by another member of the public. In context and on a fair reading, the learned Member’s findings seem to be that in a private conversation between two members of the public, JXR’s language would not be acceptable. The learned Member found the use of the language, screamed by JXR, in a public setting at an officer in the performance of her duties by a fellow officer (although not on duty) within the hearing of other persons, was reprehensible. Indeed, he found it was disgraceful, improper and unbecoming an officer and did not meet the standard required of an officer. 
  21. [257]
    Further, the learned Member had earlier in his reasons set out the evidence of one of the security guards, Jeffrey Houghton.[187] Mr Houghton said that some 5-15 hotel patrons would also have heard JXR’s statements, as well as people he could see at a nearby kebab shop.[188] The learned Member does not specifically say that he accepted Mr Houghton’s evidence about persons within earshot. However, it is clear that he gave weight to Mr Houghton’s evidence about JXR’s intention, (as verbalised to Mr Houghton), to ‘give her what’ for,[189] referring to Senior Constable OL, when the police officers exited the hotel: he concluded that ‘[JXR] had a premediated intention to abuse Senior Constable [OL]’.[190] It appears that, without specifically articulating it, the learned Member also accepted Mr Houghton’s evidence about the presence of other persons who could hear JXR’s comments. That he did so is confirmed in respect of hotel patrons at [391].
  22. [258]
    JXR relies only upon the CCTV evidence in submitting that few people were present. However, CCTV cameras may not capture footage of all persons within earshot. He has not drawn our attention to any evidence which would call Mr Houghton’s evidence, which was given weight by the Tribunal, into question. 
  23. [259]
    Mr Houghton’s evidence supports the finding that the comments made by JXR were heard, not only by the officer to whom they were directed, but by members of the public including at least three security officers, and by others persons who were within earshot, that is, specifically hotel patrons. They were also heard by three other police officers.
  24. [260]
    No error is revealed.  
  25. [261]
    Alleged error 27: (in [315, 392]) while acknowledging JXR was ‘under stress and had a medical condition’, the Tribunal erred in finding that ‘[JXR]’s continuing to drink alcohol the effects of which were increased by his medication contributed to the incident occurring’ because the evidence does not suggest that alcohol increased the effects of the medication.
  26. [262]
    Again, JXR relies here upon fact sheets about the medication, Cymbalta, that do not appear to have been in evidence in the Tribunal review.  He says that it does not support the finding made by the Tribunal. Further, he submits that the Tribunal has no medical expertise that would entitle it to make the finding. He says it relied upon a non-existent fact and therefore erred in law.
  27. [263]
    Firstly, the learned Member’s task was to make findings based on the evidence before him. He did not, and did not purport to make, findings based upon his own medical expertise.
  28. [264]
    JXR does not refer to the finding made by the learned Member in [315] in context. He went on to find that after the incident involving the threats made to the lives of the Magistrate and other police officers that JXR should have ensured he did not drink to the point that he risked acting inappropriately.
  29. [265]
    As discussed earlier in relation to ground of appeal 18, JXR’s evidence in the disciplinary investigation was that his doctors had told him that taking Cymbalta slowed the ability of the liver to process alcohol, leading to increased effects if a person continues to drink.[191] It is also apparent from the evidence of Dr Baruah that he had reported to drinking excessively prior to his admission to Belmont Hospital.[192]
  30. [266]
    As discussed earlier, it is not clear to us whether the fact sheet, now relied upon by JXR, was before the Tribunal. Even if it was, the Tribunal was entitled to rely upon JXR’s own evidence about his medical advice to conclude that JXR was aware he should not drink while taking the medication and should not have done so to excess placing himself in a similar position when he might again act inappropriately.
  31. [267]
    No error is revealed.
  32. [268]
    Alleged error 28: (in [315]) the Tribunal erred in finding that ‘..[JXR] should have ensured that he did not drink to the point where he was at risk of acting inappropriately. His illness is not an excuse for his behaviour, it was being treated’ when the evidence does not support a finding that his condition was cured/negated by treatment.
  33. [269]
    JXR contends that as the Tribunal is not a medical expert, it cannot make the finding.
  34. [270]
    As discussed earlier, the Tribunal did not rely upon its own medical expertise. Its findings are based on the evidence before it.
  35. [271]
    No error is revealed.
  36. [272]
    Alleged error 29:  (in [378]) the Tribunal erred in finding that ‘The fact that police officers who would be required to serve with him had witnessed him act in such an improper manner would go to maintenance of self-esteem of members of the service. If they thought that an officer could act in such a way and not receive a severe sanction’ when the evidence is that the officers took no action at the time, and as JXR was on sick leave, he may have been posted somewhere else by the QPS on return, other than with the officers concerned (as contemplated in a document in the Appeal Book at p 481).[193]
  37. [273]
    This ground of appeal relates to findings made in deciding sanction and is discussed in relation to the appeal grounds against sanction.

1.5 Disorderly conduct: the group incident - 8 alleged errors

1.5.1 Dot point 1: group interaction

  1. [274]
    Alleged error 30: (in [322, 348]) the Tribunal erred in finding that by his comments he ‘abused’ the other parties because the evidence does not reach the Briginshaw standard; and finding that his conduct amounted to misconduct rather than a breach of discipline under the tables referred to earlier in Garth.
  2. [275]
    The ground of appeal is not entirely clear. However, it appears that JXR’s argument is that although he had an interaction with the persons concerned, the Tribunal erred in finding that he verbally abused them. He further asserts the evidence does not reach the Briginshaw standard, and is not misconduct as opposed to breach of discipline.
  3. [276]
    JXR, although he broadly admitted he may have inflamed the situation by encouraging the persons in the group to call him names, such as ‘dog’ while the police were present, denies this amounted to verbal abuse. Irrespective of his own concessions, it is clear that the Tribunal gave greater weight to the evidence of the 5 police officers who were in attendance (Edgar, Robinson, Templeton, Blunt and Morgan[194]) when the events occurred.[195] The learned Member found that there was an internal consistency in their statements.[196] The learned Member found on the basis of the evidence that JXR verbally abused, in a manner that incited, the group, and did not desist when directed by police to do so, rather he threatened an officer with retribution and was abusive towards police.[197]
  4. [277]
    As we understand the ground of appeal, JXR says the evidence did not meet the Briginshaw standard and therefore the findings were made in error. He does not explain why other than to say that not all of the officers were present to hear all of his various comments. No error is identified in the learned Member’s attribution of weight to the evidence of the police officers who attended the incident. The evidence was not flimsy and was broadly consistent in respect of the events. He was entitled to treat it as he did and to be reasonably satisfied on the Briginshaw standard, irrespective that the officers did not each see and hear all statements and events. The evidence from other officers (Browne, based on hearsay from Lowth)[198] who were not present with JXR was not given similar weight.[199] The learned Member found that JXR, instead of cooperating with the officers in attendance as the community would expect of a serving officer, did not do so, rather as above, he verbally abused and incited the group and the officers had to calm them to prevent an attack on JXR, as well as threatening retribution against an officer and using abusive language towards police officers.[200]  He found that JXR acted in a disorderly manner.[201] The learned Member’s findings identify that the conduct is misconduct, which includes conduct that is improper and does not meet the standard of conduct reasonably expected by the community of an officer. The Tribunal found that the conduct discussed here and referred to in this aspect of the disciplinary charge was misconduct.[202]
  5. [278]
    In relation to the alleged error about the finding of misconduct, as opposed to a breach of discipline, we refer to earlier paragraphs in these reasons for decision in relation to the definitions of each. There is no particular alleged breach of discipline pointed to by JXR. The tables in Garth are indicative only and cannot affect or constrain the proper construction of the relevant legislative provisions.
  6. [279]
    No error is revealed.
  7. [280]
    Alleged error 31: (in [347]) the Tribunal erred in relying upon hearsay evidence of other officers in finding JXR called the persons in the crowd ‘gutless cunts’ when the person alleged to have reported the use of those words has not provided a statement.
  8. [281]
    JXR appears to submit that the only evidence that he used those words comes from Senior Constable Lowth and Sergeant Browne, neither of whom were present when he is alleged to have said the words. As we understand it, he submits that the rule in Jones v Dunkel[203] applied or should have been applied and that the Tribunal erred in law in making the finding that he said these words in the absence of evidence from the person/s who told Lowth and Browne that he used these words.
  9. [282]
    However, in [322], the learned Member, in discussing the evidence of Constables Blunt and Edgar, who were in attendance during the events, records Constables Blunt and Edgar as reporting the use of the alleged words by JXR. Constable Blunt’s statement contained in the evidence before the Tribunal confirms that he reports that JXR said the words alleged,[204]  as does Constable Edgar’s statement.[205]
  10. [283]
    The learned Member in [347] discussed JXR’s denial that he said the words, ‘gutless cunts’ which some of the police attributed to him and the words stated by Sergeant Browne.  It is sufficiently clear that the Member says that the words ‘gutless cunts’ were alleged to have been spoken by JXR ‘by some of the police,’ whereas other words, attributed to him by Sergeant Browne were also denied by JXR. Sergeant Browne’s evidence is referred to in [338], where the learned Member describes him as reporting that Senior Constable Lowth told him JXR had been reported to him by other officers as saying the words ‘dog cunts’ and ‘black cunts’.[206]
  11. [284]
    On a fair reading of his reasons for decision, particularly in [347-348] and [353-355], the learned Member relevantly found specifically that the words ‘gutless cunts’ were said by JXR, and generally that JXR had used abusive words. However, he did not find that the hearsay words reported by Senior Constable Lowth to Sergeant Browne were said.
  12. [285]
    No error is revealed.

1.5.2 Dot point 2: the Morgan incident

  1. [286]
    Alleged error 32: (in [353]) in finding that ‘[JXR] …tapped Constable Morgan’s bottom … to get his attention’ constituted misconduct, rather than (if anything) breach of discipline having regard to the tables in Garth and without having regard to the Briginshaw standard.
  2. [287]
    Whereas JXR admits that he did tap Constable Morgan on the bottom, he submits that the Tribunal was in error in finding that it was misconduct, referring back to his previous arguments. He suggests that it is either, a breach of discipline, or alternatively in this instance, simply an act of ‘disrespectful familiarity’.[207] Although JXR’s submission about this lacks clarity, he also submits also that it does not meet what he refers to as the threshold of Briginshaw.[208]
  3. [288]
    Paragraphs [333] and [353-356] of the learned Member’s reasons for decision are relevant here. The conduct in the relevant dot point (in context of the other dot point particulars) of the further and better particulars is allegedly misconduct in that it is disorderly conduct which is improper.  It is not alleged in the disciplinary charge as framed that the conduct of JXR in tapping Constable Morgan on the bottom was disrespectful, threatening or abusive, only that it was disorderly.
  4. [289]
    The Member did not draw any adverse inference about the particular conduct of tapping Constable Morgan on the bottom and so find, even assuming that this was permissible, given that the Tribunal may not reframe charges to be more serious than alleged.[209]
  5. [290]
    Indeed, the learned Member does not appear, in concluding that the alleged disorderly conduct concerning the group in (the 4 relevant dot points of) Matter 1 d) b) was misconduct, refer to this particular conduct, except in [353], where he says, ‘this was not taken to be any sort of assault but was merely a tap to get attention between people who knew each other’.
  6. [291]
    Although arguably disrespectful towards an officer in the performance of his duties, conduct of the nature described by the Member at [353], considered either alone or in context of the broader Matter 1 d)b), would not appear to be disorderly conduct or to meet the definition of misconduct. The Member does not provide any reasons about this particular conduct for concluding that it does. The conclusion that the conduct alleged is disorderly and misconduct focusses upon the conduct referred to in the other dot points. Having regard to the nature of the conduct, and the findings made by the Tribunal about the events, it could not be said that on a fair reading the learned Member in context of the other allegations set out in the other dot points in Matter 1)d)b), found that it was disorderly conduct or constituted misconduct.
  7. [292]
    We have concluded that the learned Member either, did not in fact find that the tap on the bottom was disorderly conduct or misconduct, (but failed to record his finding and explain his reasons for his finding in this regard) or alternatively, failed to consider whether the particular conduct alleged was misconduct.   In any event, he erred. In the first instance, in law by failing to provide adequate reasons for his decision about this point, or alternatively, in law by failing to perform his statutory task as far as it concerned this aspect of the review.
  8. [293]
    Based on his findings, it is not apparent that the conduct is a disciplinary breach at all. It is not misconduct. It does not fall within the definition of a breach of discipline. We have concluded that the proper course was for the Tribunal to find that whereas the event occurred, the conduct in this dot point was not an act of misconduct, nor a breach of discipline.
  9. [294]
    We would allow the appeal in respect of this error. However, the error has no consequences for the outcome of the proceeding overall, because the error in respect of the particular conduct does not infect the finding that the conduct in the other further and better particulars was disorderly and was misconduct, and nor was it instrumental in imposing sanction. Therefore, the error is not material.

1.5.3 Dot points 3 and 4: the Robinson interaction

  1. [295]
    Alleged error 33: (in [350-351]) the Tribunal erred in finding that JXR threatened Constable Robinson by saying, ‘You’re fucked, you wait till tomorrow’ and that the conduct constituted misconduct.
  2. [296]
    JXR submits that the evidence, (although supporting a finding that JXR had an interaction with Constable Robinson), is to the effect that he said that he was going to report Constable Robinson to his superiors, in response to Constable Robinson pushing him. He does not accept that he said the words attributed to him. He submits that this is not a threat. He submits that the evidence of LE (his cousin) supports his version of events.
  3. [297]
    Again, he submits that the conduct is in the nature of a breach of discipline rather than misconduct; that the Briginshaw standard is not met;  that other digital evidence (CCTV footage; digital recordings and personal video camera footage) could have been produced that would have corroborated JXR’s evidence, and therefore the rule in Jones v Dunkel[210] should have been applied.  He also submits that the Member impermissibly reformulated the charge against him because the allegation does not import aggression, hostility, or unco-operative behaviour.
  4. [298]
    The learned Member summarised the relevant evidence before him in [319-339]. In [324], he sets out Constable Robinson’s evidence that, during the broader events that are the subject of this aspect of the charge, he approached ‘[JXR] and again asked him ‘to stop calling and provoking the males. He said words to the effect of “There is no need for that just leave.” ’ In response the learned Member records that Constable Robinson says JXR turned towards him and said, ‘You’re fucked, you wait til (sic) tomorrow’. Constable Robinson is recorded as asking JXR what he meant by the words, but that JXR did not reply. The learned Member also refers in [323], to evidence of Constable Edgar to the effect that he saw JXR turn towards Constable Robinson and say in an angry and hostile tone, words to the effect of, ‘you wait until I get back to work. You’re fucked’.
  5. [299]
    Then in [327], discussing the events that subsequently transpired on the evening (closer to the time when JXR entered a taxi and left), the Tribunal records Constable Robinson’s evidence that he again approached JXR to stop calling out and provoking the group. He says that it was at this point that JXR asked how long he had been in the job, then stated aggressively that he (JXR) had ‘been in the job for 20 years’.
  6. [300]
    The statements attributed by the Member to Constables Robinson and Edgar accurately reflect their evidence.[211] Constable Edgar also said in his statement that at the point when JXR was about to leave in a taxi, he said words to the effect to him (Edgar) of, ‘Call off your little dog or I’ll sort the cunt out’. He understood this as a threat against Constable Robinson. JXR relies upon LE’s evidence. The Tribunal summarised it at [321, 326]. LE’s statement,[212] is brief, suggests JXR did nothing of concern during the events in question,was not abusive and recalls an officer pushing JXR and JXR the next day saying that he did not know the officer, but that he was thinking of reporting his behaviour. He does not provide evidence about the words he heard JXR say at the relevant time.
  7. [301]
    In discussing the evidence and making his findings about the issue, it is apparent that the learned Member at [350-351], gave more weight to the evidence of Constables Robinson and Edgar, than JXR’s own evidence. In doing so, he reasons that they each recalled the use of similar words by JXR. He also took into account that JXR was affected by alcohol. In any event, he finds that even if the words used were those reported by JXR, they nevertheless imported a threat to report Constable Robinson to to his senior officer. He finds or observes that the language attributed by Robinson and Edgar to JXR is ‘in keeping’ with language used by JXR on other occasions in that it is ‘profane swearing’. He finds that JXR said the words alleged during their initial interaction towards Constable Robinson, ‘as a threat in the form of retribution within the police service’.
  8. [302]
    He went on in [352], to find that JXR, also said the words Constable Edgar alleged when he was entering the taxi to leave, rather than JXR’s allegedly less offensive version of the words, which again he found were ‘threatening some form of retribution or retaliation against Constable Robinson’. Again, he relied upon JXR’s previous use of profane language towards police on other occasions when intoxicated.
  9. [303]
    The learned Member does not specifically explain why he placed little weight on LE’s evidence. That said, there are obvious reasons why he did not: LE could not be considered an independent objective witness having regard to his relationship with JXR and does not say what he heard said. However, in any event, we observe that apparently inconsistently with JXR’s argument that his words to Constable Robinson indicated that he immediately reacted by stating he intended to report Robinson, LE’s recollection was that the following day, JXR told him he was thinking about reporting it. Other than that, the statement is in generally unhelpfully vague terms.
  10. [304]
    On appeal (as he did in the review proceedings), JXR raises a bare allegation that there is evidence that could have been produced that was not. The Member dealt with his submission to this effect in [343].That there was such evidence available, as opposed to the possibility of its existence, is not apparent from JXR’s submissions and nor has he referred us to anything in the voluminous material before the Tribunal in the review that suggests there is such evidence. We find no identifiable error made by the learned Member in not applying the rule in Jones v Dunkel[213] in the circumstances. That said, the learned Member should have explained clearly why he did not do so. In that regard, he erred. Nevertheless, in the circumstances, there is no material error.
  11. [305]
    In relation to the submission that the evidence was inadequate to establish the allegation on the Briginshaw standard, we disagree for the reasons already discussed. The evidence was not flimsy. Detailed written statements about the events were before the Tribunal. The findings made by the learned Member were open on the evidence. He was entitled to place more weight on the evidence of police officers who were on duty and had no personal interest in the outcome of the disciplinary proceedings, indeed, one of them had not met JXR before the events. On the other hand, it was early hours of the morning, and JXR had been drinking alcohol throughout the night. It was reasonable to infer that his recollection may have been less clear and he had an interest in minimising the events. LE was not an independent witness and provided only unhelpfully vague evidence. Although we acknowledge, with respect, that the learned Member could have more clearly explained the reasons for his decision about the relevant matters, it is tolerably clear that this is what he did.
  12. [306]
    JXR also contends that the Tribunal impermissibly reformulated to charge, it seems, to import aggression, hostility or uncooperative behaviour.  The submission is made without more. The aspect of the disciplinary charge raised in the dot point dealt with by JXR in this ground of appeal, concerns the making of a threat towards Constable Robinson. The next dot point relates to statements made shortly afterwards to another officer in respect of Constable Robinson. It is somewhat artificial to consider the dot points in isolation from one another, as JXR appears to submit should be the case, and indeed in isolation from the other events of the evening referred to in the other particulars of this aspect of the disciplinary charge.
  13. [307]
    That aside for the moment, the allegation is that JXR’s conduct was conduct in that he behaved in a disorderly manner, in this instance, by threatening Constable Robinson. Making a threat connotes hostility of some type, whether through aggressive delivery of the words in making the threat, or a calmly delivered threat of future adverse actions. The learned Member considered that even on JXR’s version of events, the particular words to which this ground of appeal relates, was a threat by JXR to report his actions to a senior officer, in response to the officer giving him a lawful direction, rather than obeying the direction.[214]
  14. [308]
    The Member found JXR’s words, contained in this dot point and the next dot point of the disciplinary charge (that is, those said to Constable Edgar about Constable Robinson), constituted a threat of retribution.[215] The two allegations are part of the one sequence of events and the one aspect of the disciplinary charge. It was appropriate to draw conclusions about them in context of one another. Doing so was not impermissible and did not involve any reframing of the disciplinary charge.
  15. [309]
    Once again, JXR asserts that the conduct was not misconduct, rather a breach of discipline. As discussed, the Member found that he threatened retribution when he should have cooperated with police, and did not treat ‘anyone’ (in context, Constable Robinson included) ‘with the respect that a member of the police force would be expected to’.[216] The Member went on to find that the conduct, including the conduct considered here, was disorderly, improper conduct and as a consequence, misconduct.[217] He should have specifically explained that he did so, because the conduct does not meet the standard the community reasonably expects of an officer. That said, it is sufficiently clear that he found this was so.
  16. [310]
    No error is revealed.
  17. [311]
    Alleged error 34: (in [334, 335, 352]) the Tribunal erred in finding that  when speaking to Constable Anthony Edgar, in reference to Constable Roy Robinson JXR stated, ‘call off your little dog or I’ll sort the cunt out’.
  18. [312]
    JXR’s evidence was that he said something to the effect of ‘you might like to put your puppy back on his leash before he finds himself in trouble’. This submission was also made to the Tribunal in the review proceeding. The arguments raised are similar to those made in respect of ground of appeal 33. JXR submits that the Tribunal was in error because recordings could have been produced by the QPS to corroborate the words spoken, but were not, with the effect that Jones v Dunkel should have been applied; the disciplinary charge does not involve aggression, hostility or uncooperative behaviour, and the Tribunal cannot reframe the charge (Lee v CCC);[218] and, even as accepted, the conduct is a breach of discipline rather than misconduct.
  19. [313]
    As previously discussed, the submission that there are recordings of the conversation that could have been produced, is a bare assertion, without more. Again, the Member dealt with the submission to this effect in [343].That there was such evidence available, as opposed to the possibility of its existence, is not apparent from JXR’s submissions and once again, he has not referred us to anything in the voluminous material before the Tribunal in the review that suggests there is such evidence available. Once again, no identifiable error was made by the learned Member in not applying the rule in Jones v Dunkel.[219] That said, the learned Member should have explained his reasons and did not. In that, he erred. However, the error is not material.
  20. [314]
    Once again, it is contended by JXR that the Tribunal impermissibly reformulated the charge, it seems, to import aggression, hostility or uncooperative behaviour.  The submission is made without more. The aspect of the disciplinary charge concerned is framed as JXR while off duty and affected by alcohol said to Constable Edgar, referring to Constable Robinson, ‘call off your little dog or I’ll sort the cunt out’. The Tribunal ultimately accepted that these were the words spoken by JXR. It refers to Constable Edgar interpreting the words to be a threat against Constable Robinson.
  21. [315]
    As discussed in relation to the previous ground of appeal, the Tribunal refers to the statement, together with the threat made directly to Constable Robinson, in its finding that, ‘He then threatened one of the officers with retribution’.[220] The two allegations are part of the one sequence of events and the one aspect of the disciplinary charge for disorderly conduct. It was appropriate to draw conclusions about them in context of one another. We reiterate that this was not impermissible and did not involve any reframing of the disciplinary charge.
  22. [316]
    Once again, the assertion is made that the conduct was not misconduct, rather a breach of discipline. As discussed above, the learned Member found that JXR threatened retribution when he should have been cooperating with police, and did not treat ‘anyone’ (in context, Constable Robinson included) ‘with the respect that a member of the police force would be expected to’.[221] The Member went on to find that the conduct alleged, including the conduct considered here, was disorderly and that the conduct was misconduct. As above, although he should have specifically explained that he did so because the conduct was improper and does not meet the standard the community reasonably expects of an officer, it is sufficiently clear that he found this was the case. No error is revealed on this basis.
  23. [317]
    Alleged error 35: (in [352]) the Tribunal erred in finding that ‘…having regard to the language which [JXR] tended to use on occasions when he was drinking and engaging with the police service I am reasonably satisfied  that the words he actually used were those alleged by Constable Edgar and that he was threatening some form of retribution or retaliation against Constable Robinson’.
  24. [318]
    JXR submits that the Tribunal erred because it is ‘faulty reasoning’ to suggest that when he drinks alcohol, he will use certain language; and because the reasoning demonstrates confirmation bias, based on the two earlier incidents contained in the disciplinary charges, when he has had hundreds of other interactions over the years in which that was not so. Although not entirely clear, it appears that JXR argues that in doing so, the Tribunal commits, what he refers to as, a converse error, committing a logical fallacy by finding a fact established on the basis of the coincidence of two matters that are not in a causative relationship.[222] We understand this to be that if he has been drinking, he will use certain language.
  25. [319]
    As the Tribunal has previously held, questions of credibility can be addressed through assessments of inherent probabilities.[223] Indeed, given the legislative limitations imposed on the conduct of police misconduct proceedings, it is unavoidable that they will be.[224]
  26. [320]
    Here, JXR’s argument ignores the fact that there was undisputed evidence of the language he used relevant to Matter 1c). JXR’s language during the incident in Matter 1c) was recorded. The words used were not in dispute there. The language was expletive and threat-ridden. Also, in Matter 1d)a), various officers and other persons gave consistent accounts of the expletive-ridden language used by JXR on that occasion.
  27. [321]
    In order to determine the review, in making findings about the words used in this instance, the learned Member had to assess the inherent probability that JXR used particular language in addressing the officer concerned based on the evidence before him. He decided to give some of the evidence greater weight. In this instance, the evidence of Constable Edgar, rather than JXR. The learned Member gave it greater weight because of similarities in the language alleged on this occasion to have been used by JXR, with the language he had used previously. The Tribunal could have more clearly explained its reasons, but it is sufficiently clear from the learned Member’s conclusions that this is the approach he adopted. Having regard to the availability of a transcript of the language used by JXR in Matter 1c), this was a reasonable basis upon which to draw conclusions about the inherent probability that JXR used the language alleged by Constable Edgar, as opposed to the more benign language alleged by JXR to have been used on this occasion.
  28. [322]
    JXR’s confirmation bias argument is similarly flawed. The Tribunal was entitled, indeed obliged to fulfil its statutory task, and in doing so to assess the inherent probabilities in the circumstances based on the evidence.
  29. [323]
    In any event, we observe that, the evidence was also reasonably given greater weight on other bases identified earlier. Constable Edgar had no personal interest in the outcome and in that manner his evidence could be viewed as more independent than JXR’s evidence. Further, JXR had been drinking throughout the previous evening, and made the comments in the early hours of the following day. It would be reasonable to conclude that it is inherently unlikely that his recollection was as clear as Constable Edgar’s recollection. Indeed, we have not been referred to or identified any basis upon which it might reasonably be concluded that JXR’s version of events was more inherently probable than Constable Edgar’s.
  30. [324]
    No error is revealed.
  31. [325]
    Alleged error 36: (in [356],) the Tribunal erred in finding that disorderly conduct in Matter 1d)b) is misconduct. It did not meet the Briginshaw standard; did not warrant dismissal in the absence of evidence from a member of the public; or demonstrate unfitness to be an officer.
  32. [326]
    The submissions and this ground of appeal as far as it relates to the sanction imposed are considered in the ground/s of appeal specifically raised about sanction.
  33. [327]
    The Tribunal cannot reframe the disciplinary charges. However, in context, the charge is that his behaviour was improper in that he behaved in a disorderly manner as alleged in 1d)b) as particularised. The particulars found by the Tribunal to have been substantiated relate to JXR’s conduct during the events on 14 September 2013, in respect of his behaviour towards the group whom he was found to have verbally abused and police officers in attendance, save as discussed, the learned Member did not find dot point 2 was improper or misconduct. 
  34. [328]
    As particularised and found substantiated as misconduct, the remaining disorderly conduct is serious in nature. It connotes acting in a manner contrary to public order. Police officers pledge to keep the peace and are broadly responsible for upholding the law and maintaining public order. The learned Member was satisfied that JXR had not treated anyone with the respect that a member of the police force would be expected to in ‘by his actions put himself and others at risk. Instead of cooperating with police officers as one would expect an officer to he threatened retribution and used abusive language towards not only the group’ of persons concerned but also ‘the police officers trying to contain the situation’. He was reasonably satisfied that the conduct was misconduct. We agree. It is not conduct that the community expects from a police officer.
  35. [329]
    It is not apparent what error JXR directs us to in submitting that the Briginshaw standard is not met. We have dealt with the argument made in this regard generally in respect of other grounds of appeal.
  36. [330]
    No error is revealed.
  37. [331]
    Alleged error 37: the Tribunal erred in making findings not sustained on the evidence by relying upon hearsay and uncorroborated evidence, when the CCTV footage and digital recordings could have been provided (Jones v Dunkel);[225] and because it does not/cannot justify its preference for the evidence of Constables Edgar and Robinson over the evidence of JXR and LE.
  38. [332]
    The substance of this ground of appeal has been dealt with by us in relation to earlier grounds of appeal as far as it makes the bare assertion that  digital evidence could have been provided. For the reasons previously explained, no error in Tribunal’s decision is revealed by it.
  39. [333]
    The ground, as far as it refers to the greater weight given by the learned Member to the evidence of Constables Edgar and Robinson, over the evidence of JXR and LE, has been addressed in considering other grounds of appeal.
  40. [334]
    No error is revealed.

Part 2: The appeal on sanction

Alleged error: The Tribunal erred in law in imposing a sanction that is manifestly excessive, unjust and unreasonable and involves a ‘misapplication’ of discretion: (at [366-397]).

  1. [335]
    The learned Member confirmed the decision of the Deputy Commissioner to impose the sanction of dismissal on JXR for his misconduct.  In summary, he found that JXR’s character had been fully revealed when tested by the strain of his marriage breakdown, following which he acted improperly during the series of substantiated events, including some events during a period when he knew the earlier instances of improper behaviour were being investigated. The Tribunal found that he demonstrated an ‘inability to deal appropriately with the stresses that came into his life’.[226] The Tribunal found that JXR had behaved in a manner that members of the public ‘would not tolerate from its members’[227] generally, ‘let alone from police officers’.[228] In treating serving officers, with whom he expected to work again with such disrespect, he had lost the support of serving officers and had damaged his standing as an officer in a manner that was beyond repair. The Tribunal found that the only appropriate sanction was dismissal.
  2. [336]
    In relation to his ground of appeal, JXR refers the Appeal Tribunal generally to several hundred pages of submissions previously made by him in relation to the disciplinary charges between 2014 and 2015.[229] He does not draw our attention to any particular aspect of those submissions said to be relevant to the alleged error of the Tribunal relied upon in this ground of appeal.
  3. [337]
    He also makes additional submissions in the appeal proceedings.[230] Although they are somewhat convoluted and repetitive, it appears these submissions relate to three issues. These submissions allege error in the Tribunal’s treatment of the internal decision-maker’s reasons for decision; error in the Tribunal’s approach in imposing a global, rather than separate sanctions for each aspect of the substantiated misconduct; and error in the exercise of its discretion resulting in a sanction that is manifestly excessive in the circumstances.
  4. [338]
    Also, as we have indicated throughout these reasons, some of the grounds of appeal numbered 1 to 37 also raise arguments relevant to sanction. These are also dealt with in this part.

2.1 The Tribunal’s treatment of the Deputy Commissioner’s reasons for decision

  1. [339]
    JXR’s submissions about this point are somewhat inconsistent. On the one hand, he contends that the Tribunal erred in not paying heed to allegedly critical comments about matters relevant to sanction made by the Deputy Commissioner in his reasons for decision.[231] On the other hand, he submits that weight should not be placed on the original sanction because the Tribunal did not find all of the alleged aspects of misconduct (that was substantiated by the Deputy Commissioner) was substantiated.[232] (Indeed, the learned Member observed in [367] that he had not made the same findings with respect to substantiation).
  2. [340]
    JXR refers to the Tribunal’s acknowledgment, drawn from Aldrich v Ross & Anor,[233] that in police disciplinary proceedings, the review tribunal may, in making its own decision, give considerable weight to the sanction imposed by the internal decision-maker, given the decision-maker’s perspective on what is required for internal discipline. The learned Member went on to say, relying upon DA v Deputy Commissioner Stewart (No 2),[234] that where the Tribunal’s findings differ from those of the internal decision-maker as to the charges substantiated, ‘the Tribunal may consider the matter of sanction afresh’.[235]
  3. [341]
    JXR submits that certain comments in the Deputy Commissioner’s reasons for decision are crucial in view of the Tribunal’s decision that several aspects of the misconduct for which the Deputy Commissioner sanctioned him, were found by the Tribunal not to be substantiated. The statements JXR says are relevant are as follows:

If each matter was dealt with separately and the domestic violence matters were at the lower end of the seriousness, it may be that a different outcome would be applicable.[236]

……

As mentioned, if your conduct was a one-off matter and the domestic violence not as serious, possibly the sanction could be suspended.[237]

  1. [342]
    JXR submits that these comments are especially significant because the two most serious domestic violence allegations were found not to be substantiated by the Tribunal; (what he refers to as) the ‘short’ timeframe of substantiated misconduct between 3 February 2012 to 14 September 2013; and the ‘many stresses/mitigating circumstances’.[238]  He also submits that it is relevant that he had no further substantiated incidents (prior and subsequent good conduct); the Family Court proceedings have been finalised; the DV order has lapsed; and that he no longer suffers from an adjustment disorder.
  2. [343]
    JXR has been quite selective about those brief parts of the Deputy Commissioner’s reasons for decision he submits should be relied upon. The observations from the Deputy Commissioner’s reasons for decision to which JXR has referred are not crucial. The Tribunal identified that if it had the same views of the facts and inferences to be drawn as the decision-maker, then due regard may be had to the decision-maker’s views about what is required to maintain internal discipline.[239] This is consistent with previous decisions.[240] However, in conducting a review, the Tribunal must make a decision about the sanction imposed in the independent exercise of its discretion.[241]  The Tribunal brings the public perspective to bear on the disciplinary process.[242]
  3. [344]
    It is useful to observe here (as discussed earlier) that the purpose of police disciplinary proceedings in Queensland encompasses protection of the public, maintenance of proper standards, and promoting and maintaining public confidence in the police service. [243] Disciplinary proceedings are protective not punitive. The High Court has said that the effectiveness of police in protecting the public relies upon public confidence in the integrity of members of the police service, and the primary means of ensuring that public confidence is not jeopardised is through internal discipline.[244] It is settled law that the sanction imposed must signify the disapproval with which the conduct is viewed.[245]
  4. [345]
    In [381], the learned Member quotes the Deputy Commissioner’s statements to the effect that if the disciplinary transgressions were sanctioned separately and the DV matters were less serious, a different outcome may apply. But, the Deputy Commissioner continued by saying that JXR had demonstrated a lack of respect for his estranged wife, fellow police officers and others with whom he has contact and that this was unacceptable from a police officer.[246] The Tribunal goes on to say, that it is the totality of JXR’s misconduct that must be considered, noting essentially that the comparable decisions relied upon by JXR were not helpful because they each involved only some of the types of conduct in which he had been involved[247] (having already distinguished a decision involving use of obscene language only).[248]
  5. [346]
    The learned Member adequately articulated the relevant general principles in [366-367]. As he had a different view of the facts and inferences, he embarked upon his consideration with that in mind, forming his own conclusions as to the appropriate sanction.[249] He made no error in doing so.

2.2 Separate or global sanctions?

  1. [347]
    JXR submits that the disciplinary matters should each be dealt with separately, as they are not the same. However, if they should be dealt with globally, he argues that the short period over which the conduct occurred, the stresses/mitigating circumstances and his diagnosed adjustment disorder should be taken into account. Failure to do so he says, is a breach of anti-discrimination legislation. Further, he says that because of his adjustment disorder, his conduct was not deliberate, and therefore less serious than it might otherwise be, again referring to what he refers to as the possible defence of insanity (under the Criminal Code). (We observe that even were the latter applicable, which it is not, we observe that it only applies where a person is deprived of the capacity to understand what he is doing, control his actions, or know he ought not do the act. There is no medical evidence that would support such a finding here).
  2. [348]
    This argument must fail. As the Tribunal held in Tolsher v Commissioner of Police (No 2),[250] although multiple episodes of misconduct could be drafted as separate disciplinary matters or charges, when drafted as one charge, one sanction must be imposed. Here, although containing various aspects (set out in sub-paragraphs of Matter 1, numbered a, b, c and d), the disciplinary charge was contained in Matter 1. It would be an error to impose separate sanctions for each aspect of the one disciplinary charge separately. The learned Member did not err in imposing a global sanction.

2.3 Did the Tribunal fail to properly exercise its discretion?

  1. [349]
    In relation to the grounds that the sanction was manifestly excessive and a ‘misapplication’ of the Tribunal’s discretion, JXR appears to submit generally that all relevant circumstances were not properly considered. He sets out in some detail the factors to which he says the Tribunal[251] should have had regard in considering the matters referred to by it in [368]. He does not say which of these he contends the Tribunal did not consider or did not give adequate weight to the extent that his exercise of discretion miscarried. However, given that JXR represents himself, we have considered the submission as far as it is made.
  2. [350]
    In relation to the seriousness of the substantiated misconduct, he says as follows:
    1. (a)
      The counselling incident involved no criminal offence, no actual violence, and no intent;
    2. (b)
      The false testimony allegations were not a criminal offence or not the subject of criminal charges;
    3. (c)
      The threats in Matter 1 c), involved no criminal  offence; no actual violence; no intent; were not directed to the persons present; and were said within the confines of private property;
    4. (d)
      The conduct substantiated in Matter 1 d)a), that he behaved in a disorderly  manner relating to Senior Constable OL did not result in a charge (presumably a reference to criminal charge, as opposed to disciplinary charge) and involved no actual violence, involving offensive language only: he says it is akin to a public nuisance offence, which he describes as a ticketable offence of $100;
    5. (e)
      The conduct substantiated in Matter 1 d)b), that he behaved in a disorderly manner during the events, involved conduct for which he was not charged (again, presumably a reference to criminal charge, as opposed to disciplinary charge); did not involve actual violence; and again was akin to a public nuisance offence.
  3. [351]
    In relation to his mitigating circumstances, JXR relies upon:
    1. (a)
      His diagnosed adjustment disorder at the time of the conduct and the possible defence of insanity;
    2. (b)
      Stresses/ors associated with the breakdown of his 18 year marriage including:
      1. The DV proceedings and order;
      2. Legal bills for the DV proceedings, Family Court proceedings and disciplinary matters;
      3. Allegations made by his estranged wife and her mother to QPS, many of which were not substantiated;
      4. QPS not allowing him to return to work despite medical clearance;
      5. Contact with his children being withheld by his estranged wife;
      6. Deprivation of his belongings by his estranged wife and subsequent loss of the personal property stored under the former matrimonial home during flood;
      7. Lost job promotion/s;
      8. Enmeshment of his work colleagues in his personal affairs because of his estranged wife’s ‘continual allegations’.[252]
    3. (c)
      In relation to Matter 1 a)c) the counselling incident,  the conduct was admitted; self-reported; did not occur in performance of his duties; and occurred in the heat of the moment in response to a threat;
    4. (d)
      In relation to Matter 1b)c) the false testimony incident, the conduct did not occur in the performance of his duties;
    5. (e)
      In relation to Matter 1 c) the threats against judicial and police officers, he admitted the conduct; it occurred at home on private property; it did not occur in the performance of duties; occurred during JXR’s sick leave when he was intoxicated; and the officers who heard the threats were trespassing.
    6. (f)
      In relation to Matter 1 d)a) disorderly conduct involving Senior Constable OL, he admitted the conduct; he apologised for the conduct; it did not occur in the performance of duties; occurred during JXR’s sick leave when he was intoxicated; occurred in the context of the loss of an intimate relationship and a close friendship; and he was hospitalised the following day for the medical condition;
    7. (g)
      In relation to Matter 1b)d), in relation to the disorderly conduct involving the group and police interaction, the conduct was partly admitted; an apology was made; he was on sick leave; the events did not occur when he was on duty; and he was intoxicated.
  4. [352]
    JXR submits that there are no circumstances of aggravation; that the last incident occurred on 14 September 2013; and there has been no recent misconduct. He refers to 3 prior substantiated matters for which he received managerial guidance or a managerial resolution in 2005, 2007 and 2012; 19 years of meritorious service  and experience (NSW and Queensland) with no previous misconduct or criminal charges; and a number of commendations/awards. He was a Senior Constable on the top pay-point, and was acting Sergeant when he commenced his sick leave. The lost promotions to which he refers were at the level of Sergeant. In an overall sense, he further submits that the conduct occurred over a short period, when compared to his lengthy and otherwise unblemished career. He also describes the conduct as out of character conduct.
  5. [353]
    Further, he submits that the Tribunal’s finding in [389] that his medical condition is not mitigating is unjust and unreasonable, it seems because the Tribunal is not a medical expert. He submits that he is criticised by the Tribunal for not having references from any serving officer at [388], but submits that policy operates to prevent such references being given/obtained.
  6. [354]
    Further, he submits that the Tribunal erred in finding that he was not a ‘fit and proper person to be a police officer and that this is due to his inability to deal appropriately with the stresses that came into his life’.[253] He submits that the evidence supports a finding that he is a fit and proper person.
  7. [355]
    JXR relies in particular on DA (No 2), suggesting that it is in many respects relevant and comparable, especially in that DA had substantiated  breaches of a DV order; DA had an adjustment disorder at the time of his misconduct; his former wife was found to have embarked upon a campaign to attack him; the misconduct occurred over a period of 10 months; his wife had enmeshed his colleagues in their affairs; and DA had over 5 years subsequent good conduct. DA was sanctioned with a suspension of 18 months. The Appeal Tribunal held there that each case must be assessed on its own merits, while observing the desirability of relative comparability. JXR relies upon the Appeal Tribunal’s statement that:

It does not follow, however, that misconduct bearing on an officer’s integrity should necessarily lead to dismissal. There are varying degrees of dishonesty.[254]

The Appeal Tribunal there quoted from Attorney-General v Bax:[255]

Dishonesty like other forms of behaviour, has grades of seriousness… momentary or temporary lapse from proper standards of honest behaviour is one thing: persistence in such conduct over a substantial period is another.

  1. [356]
    In DA (No 2), in rehearing the matter, the Appeal Tribunal held that the context of misconduct must be considered.[256] JXR suggests that the Appeal Tribunal’s conclusion, there based on fresh evidence before it, that DA’s former wife had embarked upon a campaign to attack him,[257]is relevant here.
  2. [357]
    As discussed earlier, JXR appeals on the basis of alleged errors of law only. The Court of Appeal has clarified the manner in which the Appeal Tribunal must proceed in determining appeals generally, including pursuant to s 146,[258] which is relevant to appeals on questions of law. If the appeal is allowed, the Appeal Tribunal in deciding an appeal on a question of law only may not conduct a rehearing. A rehearing may only be conducted in deciding an appeal against a decision on a question of fact or mixed fact and law. [259]
  3. [358]
    The appellant bears a heavy onus in seeking to disturb a decision made in the exercise of discretionary power.[260] In determining an appeal about a discretionary judgment, such as the sanction to be imposed in the circumstances, there is a presumption in favour of the correctness of the decision.[261] It is not enough that the appeal body may have exercised the discretion differently had it decided the matter in the first instance. The appellate tribunal must be satisfied that an error has been made in the exercise of the discretion,[262] in that the original tribunal acted upon a wrong principle; the decision was affected by irrelevant matters; material considerations were not considered, or more rarely, and only if it amounts to failure to exercise the discretion it was required to exercise, inadequate weight was given to relevant considerations.[263] The result must be unreasonable or plainly unjust on the facts.
  4. [359]
    The ground may be likened to what is commonly referred to as Wednesbury[264] unreasonableness. That is, unreasonableness from which it may be inferred that the tribunal failed to properly exercise its discretion because the result is outside of the ambit within which reasonable disagreement is possible, (here about appropriate sanction in the circumstances) such that it must be plainly wrong. That is, in this instance, the Appeal Tribunal would have to be satisfied that no reasonable tribunal could have concluded that the sanction of dismissal should have been imposed.
  5. [360]
    Despite making voluminous submissions, JXR does not identify clearly the manner in which he contends the learned Member erred in the exercise of his discretion, except in that he says the Tribunal ought to have considered his medical condition was a mitigating factor generally and in finding that he was not a fit and proper person. That said, having regard to the nature of  submissions made by JXR, it appears that he contends error in either the way factors were or were not given weight by the Tribunal, resulting in the imposition of a sanction of dismissal which he says is manifestly excessive in the circumstances.
  6. [361]
    Having regard to the onus he bears, JXR should have specified which of those many factors he makes submissions about are said not to have been considered, or not considered appropriately, or not given adequate weight. That said, as he represents himself, we have taken the view that we should consider each of them.
  7. [362]
    An argument relating to the mitigating effect of his medical condition relies upon the lack of medical expertise held by the learned Member. There is no merit in the contention that the Tribunal was not entitled to make a finding to the effect that JXR’s medical condition did not serve to mitigate his misconduct because the learned Member is not himself  medically qualified. As explained in earlier paragraphs of these reasons for decision, the Member’s task was to make his findings based on evidence before him. He did so.
  8. [363]
    In relation to JXR’s arguments about the findings relating to the mitigating factor of his medical condition more broadly made, as discussed earlier, the medical evidence would not support a conclusion that JXR’s conduct was caused by his adjustment disorder for the reasons explained earlier, (nor, even if it was relevant, to the extent that JXR’s submissions again raise in relation to sanction the ‘insanity defence,’ that he was incapable of understanding what he was doing, controlling his actions or knowing that he ought not do the acts). There is no error on this basis.
  9. [364]
    Did the learned Member properly consider and weigh the factors relevant to the determination of sanction? He identified the areas he was required to consider, ‘where relevant’.[265] JXR does not suggest that those were not relevant considerations: indeed, he makes submissions against each of those specified factors as outlined earlier.

2.3.1 Seriousness of the conduct

  1. [365]
    The learned Member considered the seriousness of the substantiated misconduct. Seriousness was considered and discussed by the learned Member throughout the section devoted to sanction [366-396], but especially at [369, 371, 372, 374, 376, 385, 386, 390, 393, and 394]. It is apparent that he considered the misconduct of a very serious nature. He considered that JXR had damaged his standing as an officer ‘beyond repair’.[266]
  2. [366]
    In support of that conclusion, he made a number of findings. In relation to the counselling incident, he considered JXR’s failure ‘to ameliorate the situation with his wife’ was relevant.[267] He found that JXR, in giving false testimony, demonstrated  ‘a disregard for the legal process which someone who would be called upon regularly to give evidence casts his integrity in alight(sic) light’.[268] Repeated instances of misconduct including involving ‘conduct over such a long period’ informed the Member’s conclusion, as well as that the misconduct included ‘adverse interactions with members of the force who he served with (sic) and would be expected to continue to serve with’.  The Tribunal found that ‘when he was tested by the strain of his marriage breakup his character was fully revealed he threatened his wife and then gave false testimony about it and became an angry abusive person who had no respect for other members of the police service and the public.’..[269]
  3. [367]
    It is clear that the Tribunal considered JXR’s misconduct considerably more serious than JXR contends it was. These findings were open to him.

2.3.2 Mitigating circumstances: adjustment disorder

  1. [368]
    JXR argues that his diagnosed adjustment disorder was a mitigating factor, and that the condition was exacerbated by factors associated with his marriage breakdown including the DVO, the complaints made by his former wife and mother-in-law, huge legal bills, being denied contact with his children.[270]
  2. [369]
    In discussing circumstances of mitigation in relation to the issue of sanction, the learned Member specifically acknowledged JXR’s diagnosed adjustment disorder (as he had throughout his reasons for decision), as well as JXR’s submission that the condition ‘resulted in him displaying behaviour which included acting defiant or showing impulsive behaviour’.[271] The Tribunal found that JXR was receiving treatment including a medication, Cymbalta, that JXR knew ‘increased the effects of alcohol’.[272] Although the Tribunal appears to have accepted at [372] that the condition may have been a contributing factor in the counselling incident, it discounts its weight in mitigation because JXR did not later seek to overcome the threat made with his wife.[273] The learned Member did not give weight to JXR’s self-reporting and alleged remorse shown in doing so, rather he considered it was an attempt to minimise any impact on his career. This finding was open because JXR’s evidence did not suggest remorse.
  3. [370]
    Then in paragraph [389], the learned Member states that JXR’s marital issues and resulting adjustment disorder ‘need to be considered in mitigation…’. He observes that none of the medical evidence supports the contention that the adjustment disorder excuses his misconduct and that JXR was being treated for it from September 2011. He concludes that ‘It was the overlay of alcohol consumption with this medical condition and the treatment he was receiving which resulted in these incidents occurring. He had the choice not to consume alcohol…’. The learned Member found that even after the incident in December 2012, JXR continued to do so and the incidents in February and September 2013 resulted. He concludes ‘Therefore I do not consider that his medical condition provides any mitigation to [JXR]’s conduct’.[274] He acknowledges JXR’s hospitalisation in February 2013, following the incident involving his disorderly conduct involving Senior Constable OL.[275]
  4. [371]
    The Tribunal considered JXR’s adjustment disorder in determining sanction. Ultimately, the Tribunal did not consider it should be given significant weight when considered against other factors, at least in part because it was treated, and because the medical evidence did not suggest it  explained or caused his misconduct. Although the Tribunal could more clearly have expressed itself, it is sufficiently clear that the condition was weighed as a factor in the exercise of the Tribunal’s discretion. The findings made by the Tribunal were open on the evidence.
  5. [372]
    As discussed, JXR again raises the defence of insanity, submitting that is open to him in relation to sanction on the basis of his diagnosed adjustment disorder. In his submissions in reply on his appeal, he also suggests that his diagnosed PTSD in remission, is relevant.
  6. [373]
    For the reasons explained, defences are not available in police disciplinary action. That said, mitigating factors, including any relevant medical condition, are relevant considerations in determining the sanction to be imposed. If the medical evidence supported a finding that JXR’s mental state was such that his actions were not his own, or he could not at the time understand that they were wrong, that would be relevant a as mitigating factor in determining sanction. In JXR’s case, the medical evidence did not support a finding to that effect in respect of either his adjustment disorder or his PTSD. No error of the Tribunal is revealed.

2.3.3 Mitigating circumstances: the marriage breakdown

  1. [374]
    In relation to JXR’s marriage breakdown and various associated stressors and stresses, again, the learned Member discusses them throughout the reasons. In making his findings about the issue of sanction, he did not refer again individually or specifically to some of the matters relied upon by JXR, including, the stress associated with legal bills, and withholding of contact to the children for a period (which had been summarised earlier at [309]). However, these are common incidents of a marriage breakdown. The Tribunal references marital issues and ‘the strain of his marriage breakup’,[276] indicating that regard was had to them in determining sanction. However, the Tribunal’s conclusion was that JXR’s character was fully revealed when tested by the strain of his marriage breakdown.
  2. [375]
    JXR submits that enmeshment of his work colleagues in his personal affairs and marriage breakdown occurred because of former wife’s numerous complaints against him.  Some of the complaints were subsequently the subject of disciplinary action but found not substantiated by the Tribunal (the pillow incident and the gun incident).[277] His mother-in-law also made a variety of allegations against him,[278] at least some of which were investigated, but later retracted by her.[279]  JXR submits that In DA (No 2), the context of misconduct was found to include the enmeshment of other police officers in the demise of DA’s marriage as a result of a campaign by his former wife to attack him.[280] DA also had a diagnosed adjustment disorder for which he was being treated at the time of the misconduct and was suicidal. Although the Appeal Tribunal did not consider it excused his behaviour, it held that they were relevant in determining the sanction to be imposed. 
  3. [376]
    The learned Member was alert to the making of allegations. He allowed fresh evidence in relation to the retraction.[281] He found Matters 1 a) a) and 1 a) b) unsubstantiated. He considered JXR’s arguments relying upon  DA (No 2) at [374] (noting that it involved domestic violence allegations in the context of an adjustment disorder). The Tribunal also considered the Court of Appeal’s decision in Dark at [375].  In particular, the Tribunal referred to the Court’s finding that while an officer’s  personal circumstances may evoke sympathy, they do not bear strongly on conclusions that may be drawn about the officer’s character. The community and QPS are entitled to expect that officers will behave appropriately despite their personal circumstances.
  4. [377]
    Although in discussing these matters, the learned Member did not specifically refer to the stress caused by the complaints made, it appears that he considered them generally in referring to JXR’s marital stresses when considering mitigating factors. It cannot be said that in dealing with them, he acted upon a wrong principle or disregarded relevant considerations.

2.3.4 The mitigating factors relied upon by JXR in respect of the individual aspects of the disciplinary charge substantiated by the Tribunal

  1. [378]
    It is apparent from the learned Member’s reasons for decision that he had regard to the fact that the misconduct occurred in each case while JXR was off-duty.[282]That said, he identified appropriately that even though it occurred in his private life, aspects of the misconduct involved conduct towards a judicial officer, JXR’s in court behaviour in giving evidence and several incidents involved behaviour towards other police officers in the performance of their official duties.[283]  He was cognisant of JXR’s ‘self-report’ in relation to Matter 1 a)c).[284] He referred to apologies made by JXR.[285] He discussed the admissions made by JXR throughout his reasons, (although as also discussed, the conduct was not admitted by JXR to be misconduct). Indeed, the learned Member found that JXR lacked insight into the seriousness of his actions and downplayed them.[286] The Member found that JXR lacked insight into the inappropriateness or impropriety of his conduct.[287] Those conclusions were reasonably open to him on the evidence.

2.3.5 Other mitigating factors

  1. [379]
    It is apparent from the Tribunal’s reasons that it was aware of the dates of the misconduct and the period over which his acts of misconduct occurred.[288] It is also apparent that the Tribunal did not consider the period over which it occurred was a short period.[289] Further, the Tribunal did not accept that the conduct was out of character, as JXR continued to engage in improper conduct over some time, even after he was aware that the earlier incidents were being investigated.[290]
  2. [380]
    Although not discussing the details of JXR’s service, commendations, and the like, the learned Member had regard to JXR’s prior meritorious service.[291] It found that no doubt JXR had previously been a good police officer, that is, until his character was tested by the strain of his marriage breakdown.[292]

2.3.6 The alleged impermissible reformulation of aspects of the disciplinary charge

  1. [381]
    As discussed, there is no error in the making of contextual findings. Indeed, in Dark, the Court of Appeal, in considering whether an act of dishonesty was misconduct, said that the nature of the act and the circumstances in which it occurred are relevant to determining whether the act reveals the requisite lack of integrity  or character to erode the trust that the public and other officers are entitled to repose in the officer.[293]
  2. [382]
    However, there is error in reformulating a disciplinary charge.[294] As discussed in relation to the appeal on substantiation, JXR submits that some aspects of the disciplinary charges were impermissibly reframed, resulting in sanction being imposed on him for misconduct that is more serious than the conduct with which he was charged.
  3. [383]
    In particular, he raised this issue in respect of the following grounds of appeal as summarised below:
    1. Ground 6: the Tribunal made findings about his lack of cooperation with Sergeant Hendrie at [198, 372]. In his reasons for decision, under the heading of sanction, the learned Member refers in [372], to JXR’s lack of co-operation with Sergeant Hendrie in his discussion about the seriousness of the counselling incident and the false testimony incident.[295]

In discussion, the Tribunal makes it clear that although it considered there may have been mitigating circumstances at the time JXR delivered, at least the first of, the two threats, the act of repeating the threat was more serious, and that providing false testimony in the subsequent DV proceedings demonstrated a concerning disregard for the legal process  such as to call his integrity (as an officer who would be called upon to give evidence regularly) into question. (He makes observations concerning Sergeant Hendrie only in the context of explaining that JXR likely considered the threats made would not result in a DV application, because of events that had occurred some years earlier when he was unwell with Cushing’s Disease).

The learned Member went on to suggest in [376], that if the only substantiated misconduct related to the domestic violence allegations, a different approach may have been appropriate, but the false testimony incident involving a court appearance and the other misconduct involving conduct with other police officers also had to be considered.  It is sufficiently clear that the lack of co-operation with Sergeant Hendrie was not instrumental in imposition of sanction.  

  1. Ground 21: The Tribunal found that the disorderly conduct involving Senior Constable OL continued for a period of 10 minutes at [307]. However, he does not mention the time frame in considering sanction. It is sufficiently clear from his reasons for decision, that it is the language JXR used towards Senior Constable OL and the circumstances of the conduct (that is, in public and heard by many members of the public) that were taken into account in determining sanction.[296] 

2.3.7 Matters raised about sanction in the numbered grounds of appeal

  1. [384]
    Ground 10: As set out earlier, ground of appeal 10 relates to alleged error in determining sanction. JXR says the Tribunal in [372], erroneously found in relation to the counselling incident, that JXR did nothing to ameliorate the threat against his wife, in that, the first threat having been made, he did not pause, collect himself and apologise. Instead, he repeated the threat. Paragraph [191] and Ground 2, also relate. For the reasons discussed earlier, there was no error by the Tribunal. JXR also contends error in the Tribunal’s finding that his wife did not threaten him, (although the relevance to sanction for which JXR contends is not clear). This was dealt with in Ground 7; we found it sufficiently clear that the Tribunal did not find that MR’s statement was the real threat and no error in his approach.
  2. [385]
    JXR also submits, it seems, that the Tribunal erred in failing to accept his self-report of the counselling incident as mitigating in [372], but then criticising him in [373], for not self-reporting. The learned Member’s reasons for decision make it clear that he did not accept JXR’s submission that his self-report of the counselling incident showed remorse for his conduct. Rather, the Tribunal found it was only evidence of compliance with requirements to protect his position, although it did ensure his weapons were removed. The Tribunal  observed that Magistrate Smith had not found the self-report mitigating. JXR says he relied on the Magistrate’s finding rather than his own in doing so. We disagree. As explained earlier, the learned Member made his own decision.
  3. [386]
    In paragraph [373], the Tribunal then refers to JXR’s failure to self-report the threats against judicial and police officers incident as required of him as an officer. No error of the Tribunal in exercising its discretion in sanction is revealed by this.
  4. [387]
    Ground 29: In [377-380], the Tribunal distinguished a decision relied upon by JXR, Watson-Paul v Acting Commissioner Kerry Dunn.[297] The learned Member did so on a variety of bases. Mr Watson-Paul’s off-duty (and while on sick leave) use of obscene language towards officers was a one-off incident; was not directed to officers with whom he served; did not occur in public and heard by members of the public like the OL incident; and did not occur in public and involve putting members of the public and officers’ safety at risk like the group incident. The Tribunal found that JXR’s acting in such an improper manner witnessed by officers he would be expected to serve with would affect the ‘self-esteem of members of the service’ unless appropriately sanctioned.[298]
  5. [388]
    JXR now complains of error because he may not have returned to serve with those officers: he may have been posted elsewhere.  He relies upon a document in his Appeal Book that is not referenced to the s 21(2) documents or other evidence that was before the Tribunal and does not appear to have been in the material before the Tribunal, or at least we cannot locate it. In any event, there are many other differences between JXR’s case and Mr Watson-Paul’s that make JXR’s misconduct much more serious, whether or not he would have returned to serve, (had he not been dismissed) with the same officers. It does not appear to us that the Tribunal erred in its findings, but even if it did, in light of the overall circumstances, the Tribunal’s exercise of discretion did not miscarry as a consequence.
  6. [389]
    Ground 36: In relation to JXR’s submission that the conduct substantiated in Matter 1 b)d) did not warrant a sanction of dismissal, we refer to our earlier discussion that a global sanction for the substantiated misconduct was appropriate. This aspect of the disciplinary charge was not sanctioned in isolation.

2.3.8 Comparable decisions

  1. [390]
    JXR has again made submissions about the comparable decisions he raised in the review proceeding. He does not point to any error in the learned Member’s consideration of them. There is no obvious or material error in the Member’s treatment of them.
  2. [391]
    As discussed earlier, JXR submits that DA (No 2) is comparable to his circumstances and considers it his principal argument on appeal. In that case, there were 3 substantiated disciplinary charges against DA. Firstly, breach of a DVO in sending three emails (not involving any actual or threatened violence). Secondly, untruthfully telling a superior officer that he had not accessed his estranged wife’s email account. Thirdly, providing false and misleading information in a statutory declaration to his estranged wife. The context of the conduct was considered relevant, although not excusing the conduct. DA, like JXR, was going through a marriage breakdown had a diagnosed adjustment disorder. He was suicidal at the time of the breaches of the DVO. His ex-wife had embarked upon a campaign to attack him, and enmeshed his colleagues in their affairs. The Appeal Tribunal found the circumstances extraordinary.  DA had no further acts of misconduct at the time of sanction, some years later. There had been regrettable delay in finalising the proceedings. A suspension of 18 months was imposed.
  3. [392]
    The learned Member discussed and summarised DA (No 2).[299] DA’s mitigating circumstances were in some respects similar to JXRs. However, although JXR’s personal circumstances engendered a degree of sympathy in the Tribunal, they did not bear strongly on the conclusions drawn about his integrity and character. Delays had also occurred, as well as some subsequent good service, and previous good service. The Member was cognisant of those. The Tribunal did not expressly find that JXR’s misconduct is more serious than DA’s. However, it is sufficiently clear that he did so find, having regard to the matters discussed in the previous paragraphs.[300]
  4. [393]
    We agree. DA’s misconduct, while serious and reflecting poorly on DA, does not demonstrate the complete disregard JXR’s misconduct showed for the role of police officers in upholding the law (in threatening his former wife and judicial and police officers); maintaining public order (in acting in a manner that demeaned a police officer, OL, while she was on duty and in public, as well as abusing a group and thereby placing himself, members of the public and police officers in the performance of their duties in danger); integrity in dealing with the court system (in knowingly giving false testimony) and respect for the justice system generally (in knowingly giving false evidence).

2.3.9 Fitness to be or continue to be an officer

  1. [394]
    JXR contends that he had no current references due to internal police policy against giving them. Therefore, he says the learned Member was in error in finding that he had no references from officers with he would be serving.[301]. Even assuming that what JXR says is correct, irrespective of that, based on the learned Member’s findings and the inferences the learned Member drew, there is no error in his conclusion that JXR’s acts of misconduct had damaged his standing as an officer beyond repair[302] and that he was unfit to be an officer.[303]
  2. [395]
    In this regard, JXR had spoken to his colleagues and former police officer friends in a most derogatory and quite improper manner in public on several occasions. He had lost the support of Detective Senior Sergeant Hildred.[304] He knowingly gave false testimony in the Magistrates Court during a DV hearing. He did not uphold the DV legislation, which police officers play a very significant role in administering and enforcing.[305] This undermines the effectiveness of officers to deter unacceptable behaviour in others. He had behaved in a disorderly manner that placed him, members of the public and other police officers at risk by inciting the group, and failed to follow a lawful direction, instead making a threat of retribution against the officer concerned.[306] [392-393]. He had demonstrated, the learned Member found, inability to deal appropriately with the stresses in his life.[307]

2.3.10 Did the Tribunal err in not suspending JXR?

  1. [396]
    JXR submits on appeal, without explaining how the Tribunal erred in determining that suspension was not an appropriate option, that in any event, the sanction of suspension would serve as a deterrent and instil public confidence in the disciplinary system.
  2. [397]
    The Tribunal found suspension was not appropriate, on the basis that JXR had the chance to show he could change during his sick leave. Instead of sorting out himself and the issues causing his adjustment disorder, more incidents occurred, even when he knew the earlier events were being investigated, that resulted in misconduct.[308] There is no error identified in the Tribunal’s approach.

2.3.11 Conclusions

  1. [398]
    The reputation of and internal discipline within the police service and public confidence in the service, depend upon the integrity of its officers. The learned Member found that JXR acted in a way that the general public would not tolerate from its members let alone from police officers.[309] JXR’s conduct fell very far short of meeting the standards reasonably expected by members of the community. He demonstrated, as the Member found, that he is unfit to be a police officer and the only appropriate sanction is dismissal.[310]
  2. [399]
    No error was made by the Tribunal in exercising its discretion to impose the sanction of dismissal on JXR.

3. Orders on the appeal

  1. [400]
    We make directions for correction of the Tribunal’s orders as earlier set out, in respect of Matters 1 b)a) and 1b)b).The appeal is allowed in relation to the identified errors in the appeal on substantiation. Substantiation of Matter 1b)d) dot point 2 is set aside. We substitute our decision that Matter 1b)d) dot point 2, is not substantiated.  As none of the other errors in relation to substantiation were material to the decision, subject to the matters identified in this paragraph, the decision of the Tribunal about substantiation is otherwise confirmed.
  2. [401]
    The decision of the Tribunal about sanction is confirmed.
  3. [402]
    We make orders accordingly.

4. Non-publication order

  1. [403]
    Orders were made by the Tribunal in OCR067-15 on 29 July 2016, prohibiting publication of the material on the Tribunal file and, other than to the parties, the reasons for decision except in de-identified form.
  2. [404]
    In light of the allegations of domestic violence and references to evidence given in and the parties to the DVO, consistently with the DV Act, we are satisfied that it is in the interests of justice that a similar non-publication order be made in these appeal proceedings pursuant to s 66 of the QCAT Act, preventing the publication of information that may identify JXR and his estranged wife. To achieve this aim, all family members of JXR, MR, as well as, Senior Constable OL and Constable AE must be de-identified in these reasons for decision. It is appropriate to exclude from the non-publication order, provision of copies of documents contained in the material by JXR and the QPS as may be lawfully required or requested by prospective employers, employment agencies, government departments, and professional bodies/organisations.
  3. [405]
    As we have not received submissions about the terms of the non-publication order made and in case of any unforeseen and unintended consequences for the parties as a result of the wording of the order, we give both parties liberty to apply for 14 days in respect of any proposed amendments to the non-publication order.

Footnotes

[1]  Transcript of Proceedings, 31 March 2017, I-14, lines 25-35.

[2]  Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21.

[3]  Reasons for decision, at [3-5].

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146.

[6] Ericson v Queensland Building and Construction Commission [2014] QCA 297, Albrecht v Ainsworth & Ors [2015] QCA 220; Harrison v Meehan [2017] QCA 315.

[7]  (1990) 170 CLR 321, [94] (per Mason CJ).

[8]  [2013] QCATA 162.

[9]  Transcript of 31 March 2017, I-17, lines 35-40 and I-18, lines 5-22.

[10]Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119.

[11]  Leave is required under Crime & Corruption Act 2001 (Qld), s 219H.

[12]  JXR’s Appeal Book, Volume 2, pp 483 to 485.

[13]  JXR’s Appeal Book, Volume 2, p 486.

[14]  Transcript of 31 March 2017, I-40, lines 15-25.

[15]  [2017] QCAT 169.

[16]  [1991] Misconduct Tribunal (unreported Appeal 6/1991) (Dr J Forbes).

[17] Re McNaughten’s Case (1843) 8 ER 718.

[18]  [2012] QCA 228, [35].

[19]  [2013] QCATA 162.

[20] Crime and Corruption Act 2001 (Qld) s 219A and Police Service (Discipline) Regulations 1990 (Qld), reg 3; see also Aldrich v Ross [2001] 2 Qd R 235, 247.

[21]  See also Crime and Corruption Act 2001 (Qld) s 219A and Police Service (Discipline) Regulations 1990 (Qld), reg 3.

[22]Aldrich v Ross [2001] 2 Qd R 235, 247.

[23] Hardcastle v Commissioner of Police (1984) 53 ALR 593 [597].

[24] Lee v Crime and Corruption Commission & Anor. [2014] QCATA 326, [73].

[25]   [2012] QCA 228.

[26]  [2012] QCA 228.

[27]  [2012] QCA 228, [35].

[28]  [2012] QCA 228, [33].

[29]  [2012] QCA 228.

[30]  [2012] QCA 228, [35].

[31]  [2012] QCA 228, [36].

[32]  Misconduct Tribunal, Qld, Appeal 6/1991 (Dr Forbes J), p 13.

[33]  [2017] QCAT 169, [27-51].

[34]  [2013] QCATA 162.

[35]  Reasons for decision, at [154-178].

[36]  Reasons for decision, at [191].

[37]  JXR’s submissions filed 24 October 2016, at [15].

[38]  [2010] QDC 187.

[39]  [2003] QDC 398, at [19-20].

[40]  JXR’s Appeal Book Volume 2, Part D, at 365-366.

[41]  JXR’s Appeal Book, Volume 2, Part D, pp 376-377.

[42]  JXR’s Appeal Book, Volume 2, Part D, pp380-382.

[43]  Reasons for decision, at [14, 189].

[44]  Reasons for decision, at [188].

[45]  Reasons for decision, at [189-190, 193].

[46]  Reasons for decision, at [193].

[47]  Reasons for decision, at [194].

[48]  Reasons for decision, at [192].

[49]  Ibid.

[50]  Reasons for decision, at [195].

[51]  Reasons for decision, at [196].

[52]  Reasons for decision, [197].

[53]  Reasons for decision, [198].

[54]  Ibid.

[55]  Reasons for decision, [155-178].

[56]  Reasons for decision, [174-188].

[57]  Section 21(2) documents in OCR067-15, Volume 3, p 907: Judge Devereaux varied the DVO by reducing the term on the DVO to 15 months (from 2 years).

[58]  Appeal Book, Volume 2, pp 383-384.

[59]  Appeal Book, Volume 2, pp 365-366.

[60]  JXR’s appeal submissions filed 24 October 2016, [68], referring to Appeal Book, Volume 2, Part D, p 366.

[61]  Reasons for decision, at [189-191] and Affidavit of Superintendent Bond, s 21(2) Documents, pp 748-749 in OCR067-16.

[62]  JXR’s submissions filed 24 October 2016, paras 38-47.

[63]  Reasons for decision at [193].

[64]  PSA Act, s 1.4, ‘misconduct’.

[65]  JXR relies upon decision of Schauer v Banham (Misconduct Tribunal) Appeal No 11/1996 (Member Dr J Forbes).

[66]  [2013] QCATA 162.

[67]  (1957) 97 CLR 279, as referred to by the learned Member in Reasons for decision, at [197].

[68]  Transcript 31 March 2017, I-38.

[69]  Transcript of 31 March 2017, I-39 to I-42.

[70]  Reasons for decision, at [273]. See also [198].

[71]  Our emphasis.

[72]  Reasons for decision, at [197].

[73]  Reasons for decision, at [6].

[74]  Reasons for decision, at [198].

[75]  Reasons for decision, at [198].

[76]  Reasons for decision, at [198].

[77]Lee v Crime and Corruption Commission [2016] QCA 145.

[78]  [2012] QCA 228, [35-36].

[79]  Reasons for decision, at [195].

[80]  Section 21(2) documents, Volume 1, page 162-164.

[81]  Section 21(2) documents, Volume 2, pages 350-357.

[82]  Ibid.

[83]  Section 21(2) documents, Volume 1, pages 163-164.

[84]  Section 21(2) documents, Volume 1, see between pp 162-190 (although not all of those pages are relevant) and pp 217-222.

[85]  JXR’s appeal submissions filed 24 October 2016, [68], referring to Appeal Book, Volume 2, Part D, pp 411-412.

[86]  Reasons for decision, at [27-28, 42, 122, 174-176].

[87]  Section 21(2) documents, Volume 3, Affidavit of L. K. Hendrie, especially at p 761.

[88]Lee v CCC & Anor [2014] QCATA 326, especially at [63, 110-113], and CCC v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510, especially at [35-45].

[89]  As to fresh evidence allowed by the Tribunal: see reasons for decision, at [15-18].

[90]  Section 21(2) documents, Volume 3, Affidavit of LK Hendrie, at p762, paragraph [33].

[91]  Briginshaw v Briginshaw (1938) 50 CLR 336.

[92]  Reasons for decision, at [155].

[93]  Transcript 31 March 2017, 1-30 to 1-31, esp at lines 28-29.

[94]  Reasons for decision, at [198].

[95]  JXR’s appeal submissions filed on 24 October 2016, [86].

[96]  JXR’s submissions filed 24 October 2016, at [99].

[97]  JXR’s submissions filed 24 October 2016, at [97-103], especially at [100].

[98]  As set out in JXR’s submissions filed 24 October 2016, at [99].

[99]  JXR’s submissions filed 24 October 2016, at [99] and [100].

[100]  JXR’s submissions filed 24 October 2016, at [101-103].

[101]  Reasons for decision, at [199-205] especially at [201], [203] and [205].

[102]  Reasons for decision, at [200].

[103]  Reasons for decision, at [209-210].

[104]  Reasons for decision, at [211].

[105]  Reasons for decision, at [212].

[106]  Reasons for decision, at [212].

[107]  Reasons for decision, at [212].

[108]  Reasons for decision, at [213].

[109]  Reasons for decision, at [212].

[110]  In this regard, we observe that the extract of the transcript of evidence set out in JXR’s submissions filed 24 October 2016, at p 31, suggests that he gave evidence that he was angry, and later, frustrated by the announcement that there could be no reconciliation.

[111]  JXR’s submissions filed 24 October 2016, at [104-105].

[112]  JXR’s submissions filed 24 October 2016, at [105].

[113]  Transcript of hearing 31 March 2017, at I-31, line 45 to I-32, line 1.

[114]  CMC v Dep Commissioner QPS and Chapman [2010] QCAT 564.

[115]  Ibid.

[116]  Reasons for decision, at [11-13].

[117]  Section 21(2) documents, Volume 2, p 87.

[118]  Section 21(2) documents, Volume 2, p 87.

[119]  Section 21(2) documents in OCR067-15, Volume 3, pp 748-750.

[120]  Section 21(2) documents in OCR067-15, Volume 3, pp 748, paragraphs 5-6.

[121]  Section 21(2) documents in OCR067-15, Volume 3, pp 749, paragraphs 9-10.

[122]  [2012] QCAT 261.

[123]  [2012] QCAT 261, at [28-29].

[124]  The relevant portion of the recording are set out and JXR’s comments and submissions are discussed in the Tribunal’s reasons for decision, at [214-267].

[125]  Reasons for decision, at [6].

[126]  Submissions of JXR filed 24 October 2016, at [124].

[127]  Submissions of JXR filed 24 October 2016, at [127].

[128]  Section 21(2) documents in OCR067-15, Volume 3, at pp 526-527.

[129]  Section 21(2) documents in OCR067-15, Volume 2, at p 20, paragraph 5.50.

[130]  Transcript of 31 March 2017, pp I-32 to I-33.

[131]  [2008] HCA 26.

[132]   Submissions of JXR filed 24 October 2016, at [132].

[133]  Reasons for decision, at [269].

[134]  Reasons for decision, at [215-216].

[135]  Reasons for decision, at [217-248].

[136]  Reasons for decision, at [270].

[137]  Reasons for decision, at [271].

[138]  Reasons for decision, at [272].

[139]  Reasons for decision, at [271],

[140]  Reasons for decision, at [242].

[141]  Reasons for decision, at [230, 232]

[142]  Reasons for decision, at [231-240].

[143]  Reasons for decision, at [272].

[144]  Reasons for decision, at [272].

[145]  Appeal Book filed 24 October 2016, Volume 2, pp 654-658.

[146]  [2008] SASC 247.

[147]  Submissions of JXR filed 24 October 2016, at [135].

[148]  Section 21(2) documents, Volume 3, from p 602.

[149]  Section 21(2) documents, Volume 3, p 603.

[150]  Section 21(2) documents, Volume 3, p 607-608.

[151]  Section 21(2) documents, Volume 3, pp 603-607, 608-609.

[152]  Section 21(2) documents, Volume 3, p 618.

[153]  Section 21(2) documents, Volume 3, p 620-621.

[154]  Reasons for decision, at [222-223, 228].

[155]  Reasons for decision, at [270].

[156]  Section 21(2) documents, Volume

[157]  Reasons for decision, at [215-216].

[158]  Section 21(2) documents, Volume 3, p 527.

[159]  Section 21(2) documents, Volume 3, p 526.

[160]  Section 21(2) documents, Volume 3, p 527.

[161]  Section 21(2) documents, Volume 3, p 519.

[162]  Reasons for decision, at [269-270].

[163]  Reasons for decision, at [270].

[164]  Reasons for decision, at [272].

[165]  Transcript of 31 March 2017, I-14.

[166]  Reasons for decision, at [307].

[167]  Transcript of 31 March 2017, at I-64, line 39-40.

[168] Lee v CCC & Anor [2014] QCATA 326[2014] QCATA 326, [63].

[169]  Transcript of 31 March 2017, at I-64, line 40-42.

[170]  Section 21(2) documents, Volume 4, 1386.

[171]  Section 21(2) documents, Volume 4, 1389.

[172]  Reasons for decision, [276] and [294-296].

[173]  Section 21(2) documents, Volume 3, pp 802.

[174]  Reasons for decision, at [310-316].

[175]  Reasons for decision, at [316].

[176]  Reasons for decision, at [310].

[177]  Reasons for decision, at [311].

[178]  Reasons for decision, [315].

[179]  Ibid.

[180]  Reasons for decision, at [310].

[181]  Section 21(2) documents, Volume 2, pp 358-366.

[182]  Section 21(2) documents, Volume 2, pp 365-366.

[183]  Section 21(2) documents, Volume 1, p 175.

[184]  Section 21(2) documents, Volume 1, pp 179-181.

[185]  Reasons for decision, at [315].

[186]  Reasons for decision, at [316].

[187]  Reasons for decision, at [286-288].

[188]  Reasons for decision, at [288].

[189]   Reasons for decision, at [287 and 305].

[190]  Reasons for decision, at [305].

[191]  Section 21(2) documents, Volume 3, pp 603, 620-621.

[192]  Section 21(2) documents, Volume 1, pp 179-181.

[193]  Once again, the document referred to and relied upon by JXR was not, as far as we can ascertain, before the Tribunal in the review proceeding.

[194]  Summarised by the Tribunal at Reasons for decision, at [322-337].

[195]  Reasons for decision, at [345-356].

[196]  Reasons for decision, at [345].

[197]  Reasons for decision, at [351-355].

[198]  Reasons for decision, at [338].

[199]  Reasons for decision, at [345-356].

[200]  Reasons for decision, at [354].

[201]  Reasons for decision, at [356].

[202]  Reasons for decision, at [356].

[203]  (1959) 101 CLR 298.

[204]  Section 21(2) documents, Volume 4, pp 1400-1402, at [8].

[205]  Section 21(2) documents, Volume 4, pp 1403-1406, at [7].

[206]  Reasons for decision, [338].

[207]  Submissions of JXR filed 24 October 2016, [188].

[208]  Submissions of JXR filed 24 October 2016, [189].

[209]  Lee v CCC & Anor [2014] QCATA 326.

[210]  (1959) 101 CLR 298.

[211]  Section 21(2) documents, Volume 4, pp 1403-1410.

[212]  Section 21(2) documents, Volume 1, pp 185-186.

[213]  (1959) 101 CLR 298.

[214]  Reasons for decision, [351].

[215]  Reasons for decision, [354-355].

[216]  Reasons for decision, [355].

[217]  Reasons for decision, [356].

[218] Lee v Crime and Corruption Commission [2014] QCATA 326.

[219]  (1959) 101 CLR 298.

[220]  Reasons for decision, [354], and similarly at [355].

[221]  Reasons for decision, [355].

[222]  Submissions of JXR filed 24 October 2016, [200-201] and footnote 152.

[223] CMC v Deputy Commissioner & Chapman [2010] QCAT 564, [19].

[224]  See discussion in CMC v Deputy Commissioner & Chapman [2010] QCAT 564, [15-19]; Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348, [61-62].

[225]  (1959) 101 CLR 298.

[226]  Reasons for decision, [394].

[227]  Reasons for decision, [392].

[228]  Reasons for decision, [392].

[229]  Submissions of JXR filed 24 October 2016, at [208] referring to Appeal Book Volume 1, Part B, pp 129-223 and 224-242; and Appeal Book Volume 2, Part C, pp 270-323 and pp 324-361.

[230]  Submissions of JXR filed 24 October 2016, at [207-287].

[231]  JXR’s appeal submissions filed 24 October 2016, paragraphs 212-213.

[232]  JXR’s submissions in reply dated 2 January 2017, paragraphs 36-37.

[233]  [2000] QCA 501, [41]; [2001] 2 Qd R 235.

[234]  [2013] QCATA 162, [26].

[235]  Reasons for decision, at [366].

[236]  Section 21(2) documents in OCR067-15, Part A, p 44.

[237]  Section 21(2) documents in OCR067-15, Part A, p 46.

[238]  Submissions of JXR filed 24 October 2016, [214].

[239]  Reasons for decision, [366].

[240]  Chapman v Crime & Misconduct Commission & Rynders [2012] QCATA 016, at [41-42].

[241]  Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384, at [31].

[242] Aldrich v Ross [2001] 2 Qd R 235, at [257-258]. See also, Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590, at [15].

[243]  CCC Act s 218A and Police Service (Discipline) Regulations 1990, reg 3.

[244]  Police Service Board v Morris (1985) 156 CLR 397.

[245]  Police Service Board v Morris (1985) 156 CLR 397; Queensland Police Service v Compton (No 2) [2011] QCATA 246, at [25].

[246]  The Tribunal appears to draw the quote from s 21(2) documents, Volume 1, Part 1, p 39.

[247]  Reasons for decision, [382-387].

[248]  Reasons for decision, [377-379].

[249]  Reasons for decision, at [367] to end.

[250]  [2013] QCAT 590, [18-21].

[251]  Submissions of JXR filed 24 October 2016, pp 66-73, [221-222].

[252]  Submissions of JXR filed 24 October 2016, at [221].

[253]  Reasons for decision, [394].

[254]  [2013] QCATA 162, at [28].

[255]  [1999] 2 Qd R 9, 20 (Pincus JA).

[256]  [2013] QCATA 162, at [35-40].

[257]  [2013] QCATA 162, at [37-39] referring to its undisturbed finding in DA v Deputy Commissioner Stewart [2011] QCATA 359, at [60].

[258] Ericson v Queensland Building and Construction Commission [2014] QCA 297; Albrecht v Ainsworth & Ors [2015] QCA 220; Harrison v Meehan [2017] QCA 315.

[259]  QCAT Act, s 143(3)(b).

[260] Lovell v Lovell (1950) 81 CLR 513.

[261]Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627 (Kitto J) referring to House v R (1936) 55 CLR 499.

[262] House v R (1936) 55 CLR 499.

[263] Lovell v Lovell (1950) 81 CLR 513.

[264] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[265] Reasons for decision, [368].

[266]  Reasons for decision, [394].

[267]  Reasons for decision, [372].

[268]  Ibid.

[269]  Reasons for decision, [393].

[270]  JXR’s appeal submissions filed 24 October 2016, [221] at pp 67 and 68.

[271]  Reasons for decision, [371].

[272]  Ibid.

[273]  Reasons for decision, [372].

[274]  Reasons for decision, [389].

[275]  Reasons for decision, [392].

[276]  Reasons for decision, [393].

[277]  Matters 1 a) a) and 1 a) b), reasons for decision, paragraphs [122-152].

[278]  See Reasons for decision, at [15], and Section 21(2) documents, Volume 4, see generally pp1035-1260; especially at 1035-1043 and copy letter dated 26 May 2015 from NG addressed to JXR.

[279]  Leave was granted by the Tribunal for the retraction to be filed as new evidence in the review proceeding: Tribunal’s reasons for decision, at [15]. 

[280]  DA (No 2), at [38-39].

[281]  Reasons for decision, [15].

[282]  Reasons for decision, [376].

[283]  Reasons for decision, [

[284]  Reasons for decision, [372].

[285]  Reasons for decision, [386].

[286]  Reasons for decision, [390-393].

[287]  Reasons for decision, [271].

[288]  Reasons for decision, [389-392].

[289]  Ibid.

[290]  Reasons for decision, [390-391].

[291]  Reasons for decision, [370], [393].

[292]  Reasons for decision, [393].

[293]  [2012] QCA 228, [33].

[294] Lee v CCC & Anor [2014] QCATA 326.

[295]  Reasons for decision, [371-372].

[296]  Reasons for decision, [376-380], [382], [389], [383].

[297]  [2013] QCATA 245.

[298]  Reasons for decision, [378].

[299]  Reasons for decision, [374], [390].

[300]  Reasons for decision, [390-394].

[301]  Reasons for decision, [394].

[302]  Reasons for decision, [394].

[303]  Reasons for decision, [396].

[304]  Reasons for decision, [370].

[305]  Reasons for decision, [393.

[306]  Reasons for decision, [392-393].

[307]  Reasons for decision, [394].

[308]  Reasons for decision, [395].

[309]  Reasons for decision, [392].

[310]  Reasons for decision, [396].

Close

Editorial Notes

  • Published Case Name:

    Officer JXR v Deputy Commissioner Gollschewski

  • Shortened Case Name:

    Officer JXR v Deputy Commissioner Gollschewski

  • MNC:

    [2018] QCATA 55

  • Court:

    QCATA

  • Judge(s):

    O'Callaghan, Howard

  • Date:

    26 Apr 2018

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
Albrecht v Ainsworth [2015] QCA 220
3 citations
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Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
5 citations
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Cite 2 - [2001] 2 Qd R 235
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Cite 4 - [2001] 2 Qd R 235
Cite 5 - [2001] 2 Qd R 235
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K.B., 223
1 citation
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Attorney-General v Bax [1999] 2 Qd R 9
2 citations
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Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
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Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
1 citation
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Cite 1 - (1953) 94 CLR 621
Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119
2 citations
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Cite 1 - [2016] QCA 119
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Briginshaw v Briginshaw (1938) 50 CLR 336
2 citations
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Cite 2 - (1938) 50 CLR 336
Caesar v Deputy Commissioner Brett Pointing [2017] QCAT 169
3 citations
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Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16
1 citation
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Cite 1 - [2012] QCATA 16
Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
1 citation
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Cite 1 - [2010] QCAT 384
Crime & Corruption Commission v Deputy Commissioner Pointing; O'Sullivan v Deputy Commissioner Pointing [2016] QCAT 510
1 citation
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Crime & Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 564
4 citations
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DA v Deputy Commissioner Stewart [2011] QCATA 359
1 citation
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Cite 1 - [2011] QCATA 359
DA v Deputy Commissioner Stewart (No 2) [2013] QCATA 162
9 citations
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Cite 6 - [2013] QCATA 162
Cite 7 - [2013] QCATA 162
Cite 8 - [2013] QCATA 162
Cite 9 - [2013] QCATA 162
Deputy Commissioner Stewart v Dark [2012] QCA 228
11 citations
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Cite 1 - [2012] QCA 228
Cite 2 - [2012] QCA 228
Cite 3 - [2012] QCA 228
Cite 4 - [2012] QCA 228
Cite 5 - [2012] QCA 228
Cite 6 - [2012] QCA 228
Cite 7 - [2012] QCA 228
Cite 8 - [2012] QCA 228
Cite 9 - [2012] QCA 228
Cite 10 - [2012] QCA 228
Cite 11 - [2012] QCA 228
Ericson v Queensland Building and Construction Commission [2014] QCA 297
3 citations
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Cite 1 - [2014] QCA 297
Cite 2 - [2014] QCA 297
Cite 3 - [2014] QCA 297
Garth v Queensland Police Service [2012] QCAT 261
2 citations
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Cite 1 - [2012] QCAT 261
Cite 2 - [2012] QCAT 261
Hardcastle v Commissioner of Police (1984) 53 ALR 593
2 citations
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Cite 1 - (1984) 53 ALR 593
Cite 2 - (1984) 53 ALR 593
Harrison v Meehan [2017] QCA 315
3 citations
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Cite 1 - [2017] QCA 315
Cite 2 - [2017] QCA 315
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House v The King (1936) 55 CLR 499
2 citations
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Cite 1 - (1936) 55 CLR 499
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Jones v Dunkel (1959) 101 CLR 298
6 citations
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Cite 5 - (1959) 101 CLR 298
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Kuru v State of New South Wales [2008] HCA 26
1 citation
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Lee v Crime and Corruption Commission [2016] QCA 145
1 citation
Jump To
Cite 1 - [2016] QCA 145
Lee v Crime and Corruption Commission & Anor [2014] QCATA 326
8 citations
Jump To
Cite 1 - [2014] QCATA 326
Cite 2 - [2014] QCATA 326
Cite 3 - [2014] QCATA 326
Cite 4 - [2014] QCATA 326
Cite 5 - [2014] QCATA 326
Cite 6 - [2014] QCATA 326
Cite 7 - [2014] QCATA 326
Cite 8 - [2014] QCATA 326
Lovell v Lovell (1950) 81 CLR 513
2 citations
Jump To
Cite 1 - (1950) 81 CLR 513
Cite 2 - (1950) 81 CLR 513
MAN v MAM [2003] QDC 398
1 citation
Jump To
Cite 1 - [2003] QDC 398
Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348
1 citation
Jump To
Cite 1 - [2016] QCAT 348
Police Service Board v Morris & Martin (1985) 156 CLR 397
2 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
Police v Dafov [2008] SASC 247
1 citation
Jump To
Cite 1 - [2008] SASC 247
Queensland Police Service v Compton (No 2) [2011] QCATA 246
1 citation
Jump To
Cite 1 - [2011] QCATA 246
Re McNaughten's Case (1843) 8 ER 718
1 citation
Jump To
Cite 1 - (1843) 8 ER 718
S v D [2010] QDC 187
1 citation
Jump To
Cite 1 - [2010] QDC 187
Tolsher v Commissioner of Police Ian Stewart (No 2) [2013] QCAT 590
2 citations
Jump To
Cite 1 - [2013] QCAT 590
Cite 2 - [2013] QCAT 590
Watson-Paul v Acting Assistant Commisioner Kerry Dunn [2013] QCATA 245
1 citation
Jump To
Cite 1 - [2013] QCATA 245
Ziems v Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279
1 citation
Jump To
Cite 1 - (1957) 97 CLR 279

Cases Citing

Case NameFull CitationFrequency
Andersen v the Crime and Corruption Commission [2020] QCATA 754 citations
Crime & Corruption Commission v Newman & Anor. [2022] QCATA 822 citations
Crime and Corruption Commission v Andersen [2021] QCA 222 3 citations
Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 1062 citations
Crime and Corruption Commission v Assistant Commissioner McCarthy & PSB [2022] QCATA 1142 citations
OP v Gollschewski (No 2) [2021] QCATA 451 citation
Rosenlund Contractors Pty Ltd v Tricon Mining Equipment Pty Ltd [2020] QCATA 342 citations
Young v Dawson (No. 2) [2022] QCAT 482 citations
1

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