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

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

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

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

PARTIES:

crime and corruption commission

 

(appellant)

 

v

 

anthony william lee

 

(respondent)

APPLICATION NO/S:

APL021-18

ORIGINATING

APPLICATION NO/S:

OCR096-16

MATTER TYPE:

Appeals

DELIVERED ON:

25 November 2019

HEARING DATE:

12 November 2019

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Member Browne

ORDERS:

  1. The respondent be placed on probation for a period of 12 months from 25 November 2019.
  2. Counsel for the parties shall bring in an agreed form of probation order. Failing agreement, the matter shall be listed for a further hearing to settle the terms of the probation order.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – where the Appeal Tribunal set aside the decision of the Tribunal at first instance and substituted a finding that the respondent had engaged in corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) (“CC Act”) – where the Appeal Tribunal proceeded under s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) – where the respondent has appealed to the Court of Appeal against the Appeal Tribunal’s decision – whether the question of sanction should be adjourned pending the outcome of that appeal – whether the question of sanction should be remitted to the Senior Member who constituted the Tribunal at first instance to further proceed according to law

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant applied to QCAT to hear and decide an allegation of corrupt conduct against the respondent – where the Tribunal dismissed that application – where the Appeal Tribunal substituted the decision at first instance for a decision that the respondent had engaged in corrupt conduct – where Chapter 5 Part 2 Division 4 of the CC Act confers powers on QCAT – whether those powers permit the Appeal Tribunal to make sanction orders

POLICE – EXTERNAL OVERSIGHT – where the Appeal Tribunal made a finding that the respondent engaged in corrupt conduct pursuant to s 15 of the CC Act – where the applicant submits that the only appropriate sanction is dismissal – where the respondent submits that the appropriate sanction is to order the respondent be placed on probation for 12 months – whether to order dismissal, probation or other sanction under s 219I  of the CC Act

Crime and Corruption Act (Qld) 2000, s 219A, s 219C, s 219I, s 219M

Police Service Administration Act (Qld) 1990, s 7.34

Queensland Civil and Administrative Tribunal Act 2009, s 147

Crime and Corruption Commission v Lee [2019] QCATA 38

Crime and Corruption Commission v Taylor [2018] QCAT 80

Crime and Misconduct Commission v Barrett [2013] QCAT 477

Legal Services Commissioner v Fellows [2017] QCAT 337

Legal Services Commissioner v Munt [2019] QCAT 160

Quilter v Mapleson (1882) 9 QBD 672

Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73

APPEARANCES &

REPRESENTATION:

 

Applicant:

M Kalyk instructed by Official Solicitor, Crime and Corruption Commission

Respondent:

J Hunter QC, with T Schmidt, instructed by Gilshenan & Luton as town agents for Gnech & Associates

REASONS FOR DECISION

  1. [1]
    On 10 May 2019, this Appeal Tribunal allowed an appeal from a decision of the Tribunal made on 22 December 2017, set aside the decision that the appellant’s application for disciplinary orders be dismissed, and substituted the following decision, namely that the respondent engaged in conduct that was corrupt conduct pursuant to s 15 of the Crime and Corruption Act 2001 (Qld) (“CC Act”).[1]  This Appeal Tribunal also made directions for the parties’ submissions concerning the orders which ought be made as a consequence of that decision that the respondent engaged in corrupt conduct.
  2. [2]
    This Appeal Tribunal has had the benefit of written submissions filed by both sides and of evidence filed on behalf of the respondent.  In the meantime the respondent, as is his right, has appealed against this Appeal Tribunal’s decision.  This Appeal Tribunal was informed that the hearing of that appeal has been listed before the Court of Appeal on 29 November 2019.  An oral hearing before this Appeal Tribunal concerning the orders to be made was held on 12 November 2019.
  3. [3]
    The factual background to this matter is set out at length in this Appeal Tribunal’s principal decision, particularly at paras [14]-[19] and [49].  For present purposes, this Appeal Tribunal adopts those statements of factual background without repeating them at length.

Preliminary issues

  1. [4]
    In the course of directions hearings prior to the latest oral hearing, several preliminary issues were raised on behalf of the respondent as to whether this Appeal Tribunal ought make any orders consequent upon it having substituted the decision that the respondent had engaged in corrupt conduct.  At that time, it was contended that it would be premature for this Appeal Tribunal to make any form of sanction order under the CC Act because the respondent has appealed the finding of corrupt conduct to the Court of Appeal.  It was submitted that the sanction hearing should be adjourned pending the outcome of the appeal to the Court or Appeal, or alternatively the Appeal Tribunal should remit the matter to the learned Senior Member who constituted the Tribunal at first instance to further proceed according to law.
  2. [5]
    These submissions raise two questions:
    1. (a)
      whether this Appeal Tribunal remains seized of the matter for the purposes of  s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”); and
    2. (b)
      whether this Appeal Tribunal has the power to make a sanction order under s 219I of the CC Act.
  3. [6]
    This Appeal Tribunal’s jurisdiction is conferred by s 219M of the CC Act, which provides that certain persons may appeal under the QCAT Act against a decision of QCAT exercising original jurisdiction.  In deciding the appeal on a question of mixed fact and law, the Appeal Tribunal, in proceeding under s 147(3)(b) of the QCAT Act, may (as in this case) set aside the original Tribunal’s decision and substitute its own decision.  It is important to note that, having substituted its own decision, there is no power under s 147 for the Appeal Tribunal to return the matter to the Tribunal below for reconsideration. 
  4. [7]
    The CC Act confers jurisdiction on QCAT to conduct disciplinary proceedings under s 219C.  Section 219I provides that QCAT may, on a finding of corrupt conduct being proved against a prescribed person, order that the prescribed person, amongst other things, be dismissed. 
  5. [8]
    In the present case, the appellant was successful in its appeal against the Tribunal’s decision at first instance.  That original Tribunal had dismissed the application for disciplinary orders.  Having dismissed the application, the Tribunal below did not make any findings, nor was it required to, about sanction.  In the present appeal, then, the Appeal Tribunal’s task was to conduct a rehearing on the evidence which was before the Tribunal below and to decide the matter according to law.  Indeed, s 147(2) required that the appeal before this Appeal Tribunal be decided by way of rehearing.   It is clear, as a matter of law, that on an appeal which proceeds by way of a rehearing, as in the present case, “judgment may be given as ought to be given if the case came at that time before the court of first instance”.[2]
  6. [9]
    It follows, therefore, that this Appeal Tribunal should proceed to determine the appropriate orders to be made as if the case had otherwise been dealt with before the Tribunal at first instance.  Moreover, in proceeding under s 147 of the QCAT Act, the Appeal Tribunal may receive additional evidence in accordance with established principles and may receive further submissions from the parties about the appropriateness of any sanction to be imposed provided, of course, that all parties are afforded procedural fairness.  That last element has not been questioned.
  7. [10]
    The second preliminary issue effectively goes to this Appeal Tribunal’s jurisdiction, i.e. whether the powers conferred on QCAT by Chapter 5 Part 2 Division 4 of the CC Act permit this Appeal Tribunal to make sanction orders.  This argument seems to be founded on the proposition that the sections within that division of the CC Act refer only to “QCAT”, without expressly referring to the Appeal Tribunal within QCAT.  This argument cannot be accepted.  In the absence of a statutory intention to the contrary, it is clear that the powers conferred under the CC Act, when read together with the QCAT Act, contemplate that the Tribunal may make orders whether when exercising the powers in its original jurisdiction or exercising the powers in its appeal jurisdiction consequent upon a rehearing under s 147(2) of the QCAT Act.  That is reinforced by the fact that a proceeding before QCAT is “a proceeding before the Tribunal, including an appeal before the Appeal Tribunal …”.[3]
  8. [11]
    Accordingly, it is appropriate for this Appeal Tribunal now to proceed to consider what appropriate orders ought be made consequent upon the finding against the respondent of corrupt conduct.

Further evidence on this hearing

  1. [12]
    The respondent was given leave to rely on an affidavit sworn by him on 1 November 2019 and also to tender a bundle of some 51 references. 
  2. [13]
    The respondent deposed to the details of his personal background and his professional career as a police officer, both before and since the incident which was the subject of the present proceeding.
  3. [14]
    The respondent is 53 years old, and is married with two children.  His older child is now an adult, and the younger child is presently in Year 2.
  4. [15]
    Having initially completed an apprenticeship as an electrician, he worked in that trade for some years until he commenced his police career at the Oxley Police Academy in February 1989.  He was then 23 years old.  After six months as a probationary constable, he was sworn in as a police officer on 29 September 1989, and was transferred to Mackay to conduct his first year of training.  His ambition was to become a detective.  He obtained appointment as a detective in June 1994, was subsequently promoted to Detective Senior Constable in 1995, and then to the rank of Detective Sergeant in 2002, as the officer in charge of the Sarina Criminal Investigation Branch (“CIB”).  In 2007, he was again promoted to Detective Senior Sergeant and officer in charge of the Mackay Child Protection and Investigation Unit (“CPIU”).
  5. [16]
    In January 2008, he took over as the officer in charge of the Mackay District CIB and, shortly thereafter, was also required to continue to perform his substantive duties as officer in charge of the CPIU.  This was in addition to his new role.  He says that during the period January to May 2008, he was working 12 to 16 hour days, in addition to performing rotational supervisory duties (on shift work) as a district duty officer.  This was the period of time during which the subject incident occurred.  In talking about this period from January to May 2008, the respondent said of the very large workload:

This placed an enormous burden on myself both physically and mentally as I now had all the Human Resource issues to deal with as well as performing the rotational DDO role and reviewing three cold case homicides.

  1. [17]
    Since the incident, the respondent has continued to serve as a police officer.  Amongst other things, he conducted some five or six internal investigations or preliminary inquiries, before declining to continue performing that task due to the matters which are the subject of this proceeding.  (He explains the difference between internal investigations and preliminary inquiries being that an officer conducting an internal investigation conducts the full investigation, which is fully reviewed, whilst in a preliminary inquiry the designated officer gathers available evidence to make a recommendation and then forwards the file for a full investigation to be conducted.)
  2. [18]
    The respondent deposes to the positions within the Queensland Police Service he has held since 2008.  He says that between 2008 and 2011, he was constantly relieving as a District Inspector or as the Detective Inspector – Regional Crime Co-ordinator.  In about June 2019, he was offered the relieving role as Detective Inspector – State Coronial Co-ordinator.  Whilst that relieving position was later declined by senior management, the respondent still, in fact, performed the functions of the role, taking necessary calls and making necessary decisions.
  3. [19]
    The respondent’s affidavit contains details of many of the management and investigation courses he has undertaken over the course of his lengthy police career.
  4. [20]
    On 1 March 2016, the respondent’s young son was diagnosed with acute lymphoblastic leukaemia.  The respondent, his wife and the young son immediately relocated to Brisbane for nine months to enable the son to undergo medical treatment.  They were able to return to Mackay in December 2016, where the son continued to undergo treatment until May 2019.  The son’s treatment is ongoing.  The respondent deposes to the high levels of strain and stress which those personal circumstances placed on him and his family, together with the very significant financial imposts which have been incurred and which are not covered by public or private health insurance.  He says:

To say I would be destitute without a job is a total understatement as we cannot afford to live, support the health of my son and wife as well as make house payments.

  1. [21]
    After taking some time off to care for his son during the acute treatment phase, the respondent returned to work in January 2017 and again took up the position as Officer in Charge of the Mackay CPIU.  He found that the significant stresses under which he had laboured due to his son’s illness had taken a serious toll on his mental health, and he could no longer handle the mental anguish of child protection work or the constant Human Resource issues.  Accordingly, from March 2017, the respondent commenced relieving as the Central Region Coronial Co-ordinator.
  2. [22]
    The respondent also deposes to details of his wife’s employment, and particularly serious health issues from which she has suffered since 2017.  Again, the respondent makes the point that, without his income, the family would struggle and would not be able to adequately care for either his wife’s or his son’s ongoing medical treatment.
  3. [23]
    Directly in relation to the matters which are the subject of this proceeding, the only statement by the respondent in his affidavit was as follows:

[36] During this process I have suffered with long bouts of depression and am absolutely filthy at myself for putting myself and my family in this position.  I am a person that accepts responsibility for my actions and I know that I have made a mistake with this investigation, however, at the time I was under enormous work pressure as outlined previously.  In no way was this mistake made intentionally.  I had no affiliation whatsoever with Mr Price prior to this investigation and I have made no gain whatsoever either personally or professionally from this incident.

  1. [24]
    The respondent deposes to the various decorations and medals awarded to him in the course of his career, and expresses regret at the fact that his career ambitions have effectively been thwarted by this incident.
  2. [25]
    Most of the references provided on behalf of the respondent were from police officers with whom the respondent has served in one capacity or another over the course of his career.  Whilst it is true that most of the references do not explicitly make reference to the particulars of the finding of corrupt conduct which has been made by this Appeal Tribunal, it is also clear that most of the referees have a greater or lesser degree of knowledge of the circumstances which have led to the respondent being before this Appeal Tribunal.  All of the references, i.e. both the references from past and present police officers and from community leaders who have known and dealt with the respondent, are uniform in their assessment of his good character and integrity as a police officer and as a community leader.  So for example, there is a very complimentary reference provided by Detective Superintendent Roger Lowe who has, amongst other things, previously served in various senior positions in the Ethical Standards Command of the Queensland Police Service.  He is a senior police officer who, as was submitted by counsel for the respondent, might be expected to have good knowledge of the matters before this Appeal Tribunal.  Detective Superintendent Lowe was extremely complimentary of the respondent’s personal and professional performance as a police officer over many years, and concluded:

In terms of the matter Mr Lee is before the courts, I am familiar with the circumstances.  This conduct is completely out of character for Mr Lee who I have observed the officer pride himself on ethical and accountable leadership of others.  I am aware Mr Lee is personally disappointed his actions do not truly reflect his integrity and professional standing.

  1. [26]
    The many other references from past and present police officers are to the same tenor and effect. 
  2. [27]
    References from lay members of the community speak of similar positive personal characteristics, and make particular mention of the respondent’s significant service to the communities in which he has lived and served.

Appellant’s submissions on sanction

  1. [28]
    The appellant submitted that the only appropriate sanction in the circumstances of this case would be an order dismissing the respondent from the Police Service.  That submission was founded in a contention that this sanction is appropriate to meet the express purposes of disciplinary proceedings under the CC Act, as stated in s 219A:

The purpose of providing for disciplinary proceedings are –

  1. (a)
    to protect the public; and
  1. (b)
    to uphold ethical standards within … the police service; and
  1. (c)
    to promote and maintain public confidence in the public sector.
  1. [29]
    It was argued that questions of the impact of the sanction on the individual and issues relating to personal hardship were secondary to the public interest considerations.  Drawing on Crime and Misconduct Commission v Barrett[4] and Crime and Corruption Commission v Taylor,[5] the appellant submitted that relevant considerations would include:
    1. (a)
      the nature and seriousness of the conduct;
    2. (b)
      the extent to which the conduct affects the public trust in the particular officer;
    3. (c)
      the extent to which the conduct affects the public trust in the police force in general;
    4. (d)
      the extent to which the conduct will compromise the officer’s ability to perform his or her duties;
    5. (e)
      whether the conduct is indicative of a lack of integrity or attitudes incompatible with being a police officer; and
    6. (f)
      the officer’s attitude to the investigation, the extent to which conduct was admitted, and the officer’s present attitude to that conduct.
  2. [30]
    The appellant submitted that the respondent had demonstrated no acknowledgment, remorse or insight in respect of his conduct, and had not co-operated with the administration of justice.  On the contrary, the respondent had denied, and continues to deny, being guilty of having engaged in corrupt conduct.  This approach was reinforced by the affidavit filed by the respondent in which he expressed only concern for himself and his own family, failed to express any concern about the complainant (Ms Toms), failed to express any concern about the impact of his conduct on the police service or the integrity of the administration of justice, and failed to express any concern about the fact that within two weeks of the exoneration recommendation Price had assaulted another watch-house prisoner.  In short, on the appellant’s submission, the respondent failed to accept responsibility for the facts as found, on which the finding of corrupt conduct was based. 
  3. [31]
    The appellant emphasised the seriousness of the conduct by which the respondent recommended exoneration without reviewing the video and despite having been alerted to the necessity of doing so.
  4. [32]
    It was submitted that the circumstances were such that the respondent recommended exoneration with the intention of conferring that benefit on Price and despite either:
    1. (a)
      knowing that Price had committed a violent assault on Toms; or
    2. (b)
      being aware of, or indifferent to, the likelihood that a violent assault had been perpetrated. 
  5. [33]
    It was either deliberate conduct, or conduct demonstrating such an indifference to wrongdoing in the police force as to warrant description as “corrupt conduct”.
  6. [34]
    The appellant also pointed out that this conduct would have to be disclosed to criminal defendants and would consequently “fatally undermine” any role the respondent could play in a criminal investigation.
  7. [35]
    Issue was taken with any notion that the conduct was merely a mistake, or was merely fleeting.  The appellant argued that the conduct was deliberate and extended over a period of time covering the decision not to watch the video, conducting a minimal interview with Price, the decision to misrepresent to his superior that the video corroborated Price’s account, and the recommendation of exoneration. 
  8. [36]
    The appellant also referred to the fact that the respondent had not addressed the adverse findings made against him, including his lack of truthfulness with investigators and his lack of candour in the subsequent investigations.
  9. [37]
    The appellant contended that little weight could be attached to the references, given that many of the referees did not expressly evince an understanding of the seriousness of the findings made against the respondent, and therefore did not engage the critical question as to what orders ought be made in light of the conduct as found by the Tribunal. 
  10. [38]
    In respect of the lapse of time since the offending conduct, the appellant submitted again that the respondent had not acknowledged the conduct, nor demonstrated any remorse or insight.  It was also argued that much of the delay in finalising the matter was due to the respondent’s failure to admit the conduct and his pursuit of a variety of legal challenges to the disciplinary proceeding. 
  11. [39]
    In oral submissions, counsel for the appellant emphasised again the statutory purpose for disciplinary proceedings, the seriousness of the conduct committed by the respondent comprising a grossly inadequate investigation, a misrepresentation to his superior about the content of the video, a recommendation of exoneration for the benefit of Price, and responses to the investigators into his own conduct which were less than truthful and inconsistent.  The submissions also highlighted the respondent’s lack of expression of remorse or insight.  Counsel for the appellant submitted that the two most important factors for this Appeal Tribunal to take into account in setting the sanction are the nature and seriousness of the conduct, and the nature of the respondent’s response.

Respondent’s submissions on sanction

  1. [40]
    The respondent’s submissions addressed four matters in particular:
    1. (a)
      the characterisation of the misconduct;
    2. (b)
      the proper test to be applied;
    3. (c)
      the respondent’s good character; and
    4. (d)
      the relevance of delay.
  2. [41]
    The ultimate submission on behalf of the respondent was that the appropriate sanction would be to order that the respondent be placed on probation for a period of 12 months.
  3. [42]
    In oral submissions, Mr Hunter QC for the respondent expressly acknowledged that the respondent continued to deny that he acted with any intention to benefit Price or cause a detriment to the complainant, and accepted that, in view of the findings in this proceeding, this amounted to an absence of insight into the corrupt conduct as found by this Tribunal. 
  4. [43]
    In relation to the conduct itself, it was argued that the respondent’s conduct in recklessly misrepresenting to his superiors that the video corroborated Price’s version when the respondent had not actually watched the video was of a lesser order of seriousness than if the respondent had watched the video, actually seen the violence, and then lied to his superiors about what he had seen in order to cover up the violence.  It was argued that the respondent was reckless in making his exoneration recommendation, and had misrepresented the truth about the video, but there was no finding that he made the representation in circumstances where he actually knew what was on the video.
  5. [44]
    The respondent cited Legal Services Commissioner v Munt[6]for a number of well-established propositions, including that, for the purpose of disciplinary proceedings, the question as to whether a person is fit for continued membership of their profession is one of present fitness, not fitness as at the time of the offending conduct. 
  6. [45]
    This then led the respondent’s submissions to focus on the body of evidence relied on to prove his present good character, particularly having regard to the large number of highly supportive and complimentary references.  The criticism of the value of those references was rejected, with the respondent pointing to cogent examples of referees who undoubtedly knew the detail of this case but nevertheless unquestioningly endorsed the respondent’s good character and high competence as a police officer.
  7. [46]
    In relation to delay, it was submitted that this is a case where the passage of time since the incident enables this Appeal Tribunal to better assess the respondent’s character and his ongoing value to the people of this State as a police officer.
  8. [47]
    Whilst accepting that matters such as personal and family hardship and potential financial impacts are matters which conventionally carry little weight in matters such as the present, it was nevertheless submitted that the Appeal Tribunal ought at least have some regard to the likely devastating impact of dismissal on the respondent and his family, not just because of the loss of income but in the context of the respondent’s family’s past and continuing financial commitments relating to his son’s serious health issues.
  9. [48]
    It was submitted that the sanction of an order of probation, which would carry appropriate conditions and which can be activated by the Police Commissioner on a further act of misconduct during the probation period, is appropriate for a person who is currently fit to remain a police officer.

Determination of the appropriate sanction

  1. [49]
    Section 219I of the CC Act provides:

Powers for corrupt conduct

  1. (1)
    This section applies to a prescribed person defined in section 50(3), definition prescribed person, paragraph (a)(i) or (b)(i).
  1. (2)
    Subsection (3) applies if—
  1. (a)
    the prescribed person is a person mentioned in section 50(3), definition prescribed person, paragraph (a)(i); and
  1. (b)
    QCAT finds that corrupt conduct is proved against the person.
  1. (3)
    QCAT may make any order the commissioner of police could make under the Police Service Administration Act 1990, part 7, division 5, other than section 7.41, if a ground for disciplinary action had been proved against the prescribed person under part 7, division 4 of that Act.
  1. (4)
    QCAT may, on a finding of corrupt conduct being proved against a prescribed person mentioned in section 50(3), definition prescribed person, paragraph (b)(i), order that the prescribed person—
  1. (a)
    be dismissed; or
  1. (b)
    be reduced in rank or salary level; or
  1. (c)
    forfeit, or have deferred, a salary increment or increase to which the prescribed person would ordinarily be entitled; or
  1. (d)
    be fined a stated amount that is to be deducted from—
  1. (i)
    the person’s periodic salary payment in an amount not more than an amount equal to the value of 2 penalty units per payment; or
  1. (ii)
    the person’s monetary entitlements, other than superannuation entitlements, on termination of the person’s service.
  1. (5)
    In deciding the amount for subsection (4)(d)(ii), QCAT may have regard to the value of any gain to the prescribed person from the person’s corrupt conduct.
  1. [50]
    By s 50(3)(a)(i), a member of the police service is a “prescribed person”.
  2. [51]
    The orders available under Part 7 Division 5 of the Police Service and Administration Act (Qld) 1990 are relevantly set out in s 7.34:

Disciplinary sanctions

Each of the following sanctions is a disciplinary sanction

  1. (a)
    dismissal;
  1. (b)
    suspension from duty without pay for not longer than 12 months;
  1. (c)
    probation for not longer than 12 months;

Note—

See also section 7.36 in relation to probation.

  1. (d)
    demotion, whether permanently or for a stated period;
  1. (e)
    comprehensive transfer;
  1. (f)
    local transfer;
  1. (g)
    performance of up to 100 hours of community service;

Note—

See also section 7.39 in relation to community service.

  1. (h)
    a fine of up to 50 penalty units;

Note—

See also section 7.40 in relation to fines.

  1. (i)
    a reprimand.
  1. [52]
    There was some debate in the written submissions as to whether, apart from ordering dismissal or probation, it also remained open to this Appeal Tribunal to make an order for a suspended dismissal.  In oral argument, however, it effectively became common ground that even if that were an available sanction, it would not be appropriate in the circumstances of this case.  Accordingly, it was common ground that the decision comes down to whether the respondent ought be dismissed from the Police Service or placed on probation for a period of 12 months.
  2. [53]
    A finding that a person has engaged in corrupt conduct is self-evidently a serious matter.  The nature of the conduct which underpins such a finding, and the degree of moral culpability revealed by the conduct, are relevant to, but not determinative of, the sanction to be imposed.  That is because disciplinary proceedings such as this are not punitive in character.  The object of the disciplinary proceeding is not to punish the person, but rather to fashion orders which achieve the public protective purposes articulated in s 219A of the CC Act.
  3. [54]
    It is also not the case that a finding of corrupt conduct compels a conclusion that the most extreme sanction, i.e. dismissal, must be imposed.  Rather, it is clear from Chapter 5 Part 2 Division 4 of the CC Act that this Tribunal has a discretion which enables it to impose the sanction appropriate to a particular case. 
  4. [55]
    It must also be acknowledged that there are grades of seriousness within the pantheon of corrupt conduct.  The corrupt conduct found against this respondent was serious because it involved inadequate performance of his duties, a misrepresentation to his superiors, and a recommendation of exoneration to benefit another officer, together with a lack of co-operation in the subsequent investigation.
  5. [56]
    This Appeal Tribunal does not accept that the conduct would have been characterised as significantly more serious if the respondent had actually watched the video and then positively lied to his superior about what was disclosed on the video.  In the present case, the respondent had sufficient prior indication of the contents of the video to make it obviously necessary for him to view the video himself as part of the investigation he was tasked to perform.  Whilst he may not have actually lied to his superior, he nevertheless committed a serious misrepresentation which had the effect of conveying false information to his superior.  In other words, the seriousness arises not merely from the fact that false information was communicated, but from the fact that the respondent manifestly failed to perform the task he was required to undertake.
  6. [57]
    That being said, there is an important factor which ameliorates the degree of seriousness to be attached to this conduct, namely that this was not a case in which the respondent himself received or derived any benefit.  That is an important distinguishing feature, which sets this case apart from cases in which corrupt conduct has been committed for personal gain, and which one could expect to be regarded with more gravity on the sliding scale of seriousness.
  7. [58]
    So, in short, this incident involved misconduct by a police officer which, on the findings of this Appeal Tribunal, fell within the relevant statutory definition of “corrupt conduct”, but it was not misconduct engaged in for the purpose of the respondent himself deriving any personal profit, benefit or gain. 
  8. [59]
    We emphasise this because, as noted above, the purpose for imposing a disciplinary sanction is not to punish the respondent for having committed the misconduct.  Rather, consistent with the purposes stated in s 219A of the CC Act, the object is to impose an order which will, in the circumstances of the case:
    1. (a)
      provide protection to the public against a repetition or perpetuation of misconduct of this type;
    2. (b)
      serve to uphold the ethical standards of the police service; and
    3. (c)
      promote and maintain public confidence in the public sector.
  9. [60]
    This Appeal Tribunal’s approach to assessing the appropriate sanction must also have regard to relevant mitigating factors.  In this case, there has been a very significant interval between the events in question (2008) and the time at which the sanction is to be assessed (2019).  It is true that at least some of the delay in achieving conclusion of the disciplinary proceeding was a result of the respondent exercising his rights to challenge the lawfulness of the proceeding and his continued denial of the allegations against him.  It should also be noted, however, that part of the delay arose from the fact that the appellant was not successful in the disciplinary application at first instance, and that this sanction hearing only results from the appellant’s successful pursuit of the appeal before this Appeal Tribunal.
  10. [61]
    What is of direct relevance, in the circumstances of this particular case, is not so much the causes of the delay in finalising the disciplinary proceeding, but whether, as Burns J said in a cognate context in Legal Services Commissioner v Fellows,[7] the delay affords this Tribunal an opportunity to see what the respondent has done (or not done) to modify his professional behaviour over the intervening period.  As Burns J observed, “… the practitioner’s behaviour over the period of the delay may serve to aggravate, mitigate or have no effect on the end sanction”.
  11. [62]
    There is no suggestion that at any time while serving as a police officer, either before or since the subject incident, this respondent has committed any other form of misconduct, let alone conduct which falls within the statutory definition of “corrupt conduct”.  Nor is there any suggestion that, apart from this incident, the respondent has approached and executed his duties as a police officer with anything other than the highest levels of competence, diligence, and probity.  If the appellant had any evidence or proper basis for gainsaying these conclusions, one would have expected that material to be put before this Appeal Tribunal on this sanction hearing.  No such evidence was led by the appellant.  There is, therefore, no basis for this Appeal Tribunal to regard this other than as an isolated, aberrant incident in a 30 year career.
  12. [63]
    Nor is any material adduced by the appellant to give this Appeal Tribunal reason to doubt the multitude of highly favourable character references provided in support of the respondent.  As already noted, many of these were from fellow police officers who spoke directly, and by reference to concrete examples, to the respondent’s good character and high degree of competence as a police officer, both before 2008 and over the years since.  The same can be said of the numerous lay referees, who spoke in uniformly complimentary terms about the respondent’s character and community contributions.
  13. [64]
    On the other hand, the respondent, whilst characterising his conduct as a mistake, has demonstrated no insight into the corrupt conduct, as found by the Tribunal.  As already noted, he continues to maintain that he did not engage in “corrupt conduct”, and his appeal against the decision of this Appeal Tribunal is to be heard in the near future.  Even allowing for his entitlement to continue to protest his innocence of the charge of corrupt conduct, however, the respondent has expressed no remorse for the consequences of what he himself acknowledges was a mistake, i.e. there is simply no acknowledgment of the impact of what he described as “a mistake with this investigation” on the complainant, or that Price, with whom the respondent had no prior association, went on to assault another person in custody shortly after the exoneration recommendation.  These matters do not stand to the respondent’s credit.
  14. [65]
    When one has regard to the catalogue of matters set out above in para [29], which this Tribunal accepts are all relevant, but not necessarily determinative, considerations, the following can be said:
    1. (a)
      For the reasons given above, whilst this conduct certainly fell within the statutory definition of “corrupt conduct”, and could thereby necessarily be properly characterised as “serious”, it was not in the top order of seriousness of corrupt misconduct;
    2. (b)
      An assessment of the extent to which this conduct affects public trust in this particular respondent must be tempered by an appreciation of the fact that it was an isolated incident in an otherwise unblemished career, and that all the evidence otherwise points to the respondent having displayed all of the necessary good characteristics of a serving police officer;
    3. (c)
      This Appeal Tribunal accepts that conduct of this nature, when made public, would have an adverse effect on public trust in the police force generally;
    4. (d)
      As the respondent’s career history since the incident has demonstrated, there have been some limitations placed on the respondent’s ability to perform all of the duties of a serving police officer.  That being said, it is also clear that the respondent has been able to continue to serve usefully in non-investigative roles within the Police Service which would not in any way be compromised by the findings in respect of this particular conduct;
    5. (e)
      Whilst the impugned conduct, by its very nature, was indicative of a lack of integrity or attitudes incompatible with being a police officer at the time it was committed, the lengthy period of service since 2008 has demonstrated ongoing adherence by the respondent to appropriate ethical standards;
    6. (f)
      As noted above, the absence of contrition or remorse is a factor which does not stand to the respondent’s credit in this case.
  15. [66]
    The Appeal Tribunal is mindful of, but can place no great weight on, the very sad circumstances of the health issues being suffered by the respondent’s son and wife, and the personal toll those matters have taken on him.  That being said, it is relevant to note that the respondent has significant financial commitments arising from those circumstances, and his unchallenged evidence is that dismissal from the police force would put him and his family in a precarious financial position.
  16. [67]
    Moreover, it is relevant that the investigation into the respondent’s conduct and the lengthy course of the disciplinary proceedings have imposed an effective brake on the respondent’s career in the police force.  He otherwise could have expected promotion and advancement during the intervening years.  All of that has been foregone and, even if he remains in the police force, his prospects for advancement are practically very limited.  In other words, even using the respondent’s own characterisation of the incident as a “mistake”, he has already paid a significant price for having engaged in that conduct.
  17. [68]
    The conduct, which occurred in 2008, was undoubtedly serious at the time.  But, as noted above, assessment of the appropriate sanction is conducted as at the present time, not as at the time of commission of the conduct in question.
  18. [69]
    When we balance the relevant factors for consideration, there are several which point to the imposition of a more serious sanction, namely the seriousness of the offending conduct and the respondent’s lack of remorse or contrition.  Those, however, must be balanced by the mitigating factors which we have described at length above.  In particular, when considering whether or not dismissal is an available sanction, the question is whether the respondent is presently fit for continued membership of the Police Service.
  19. [70]
    Having weighed all these matters, this Appeal Tribunal is not satisfied that the objectives of s 219A would be served by dismissing the respondent from the Police Service.  There is nothing discernible from his performance as a police officer since 2008 which would suggest that his dismissal is necessary for protection of the public, to uphold ethical standards within the Police Service, or to promote and maintain public confidence in the public sector.
  20. [71]
    Rather, when one balances those public interest considerations against the respondent’s circumstances, it seems to the Appeal Tribunal that an order that the respondent be placed on probation does meet the necessary purposes.  The public finding that the respondent committed an act of corrupt conduct is, in itself, a serious and permanent stain on an otherwise unblemished career, which has had and undoubtedly will continue to have an attenuating effect on the respondent’s career advancement. It is, moreover, a serious matter for a 30 year veteran of the Police Service to be placed back on probation.  These considerations address the need for a sanction which acts both as a personal deterrent and to send the message, by way of general deterrence, to other police officers and the public at large that serious consequences flow from misconduct of this nature.
  21. [72]
    Accordingly, this Appeal Tribunal will order that the respondent be placed on probation for a period of 12 months.
  22. [73]
    The probation will need to be subject to conditions.  In the course of oral argument, counsel for the parties agreed that, if this Appeal Tribunal were to order probation, counsel would liaise with a view to producing an agreed set of conditions. 
  23. [74]
    The Appeal Tribunal will make directions for counsel to bring in an agreed form of order under which the respondent is to be placed on probation for a period of 12 months from today’s date.  Failing agreement as to the conditions of probation, the parties are to re-list the matter for further argument as to the probation conditions.

Footnotes

[1] Crime and Corruption Commission v Lee [2019] QCATA 38.

[2] Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, per Dixon J at 107, citing Quilter v Mapleson (1882) 9 QBD 672.

[3]  See QCAT Act, Schedule 3, definition of “proceeding”.

[4]  [2013] QCAT 477.

[5]  [2018] QCAT 80.

[6]  [2019] QCAT 160.

[7]  [2017] QCAT 337 at [27].

Close

Editorial Notes

  • Published Case Name:

    Crime and Corruption Commission v Anthony William Lee (No 2)

  • Shortened Case Name:

    Crime and Corruption Commission v Lee (No 2)

  • MNC:

    [2019] QCATA 151

  • Court:

    QCATA

  • Judge(s):

    Daubney P, Member Browne

  • Date:

    25 Nov 2019

Appeal Status

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

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