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O'Brien v Assistant Commissioner Taylor[2021] QCATA 12

O'Brien v Assistant Commissioner Taylor[2021] QCATA 12

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

O'Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12

PARTIES:

KATIE O'BRIEN

(appellant)

 

v

 

assistant commissioner paul taylor

Crime and Corruption commission

(respondents)

APPLICATION NO:

APL147-19

ORIGINATING APPLICATION NO:

OCR085-18

MATTER TYPE:

Appeals

DELIVERED ON:

29 January 2021

HEARING DATE:

28 July 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member

Member Kanowski

ORDERS:

  1. Leave to appeal is refused.
  2. The appeal is dismissed.
  3. Other than to the parties to the proceeding, publication is prohibited of the names or any information that could identify or lead to the identification of any persons other than Katie O'Brien, Assistant Commissioner Paul Taylor and any other police officers.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – where disciplinary sanction imposed – whether sanction unreasonable

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where disciplinary sanction imposed – whether relevant issues addressed

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – PARTICULAR CASES – where police officer found unfit to be a sergeant – whether finding was correct

Police Service Administration Act 1990 (Qld), s 7.4

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1), s 142(3)(b), s 146

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

Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95

Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96

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

Crime and Corruption Commission v Queensland Police Service & Anor [2015] QCATA 15

Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490

Flegg v CMC & Anor [2014] QCA 42

Flegg v Crime and Misconduct Commission and Anor [2013] QCA 376

Garth v Queensland Police Service [2013] QCATA 357

House v The King (1936) 55 CLR 499

Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201

McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Citizenship v Li [2013] HCA 18

O'Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 127

O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148

Shi v Migration Agents Registration Authority [2008] HCA 31

Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375

APPEARANCES &

REPRESENTATION:

 

Applicant:

MM Black of counsel instructed by Gnech Associates

1st Respondent:

JL Gorry, in-house counsel

2nd Respondent:

ML Maccarone, legal officer, Queensland Police Service Legal Unit

REASONS FOR DECISION

Introduction

  1. [1]
    Ms Katie O'Brien, an officer in the Queensland Police Service, seeks in these appeal proceedings  to challenge a disciplinary sanction imposed by the Tribunal in its review jurisdiction on 15 May 2019.[1]  In essence, the Tribunal’s decision was to reduce Ms O'Brien in rank from Sergeant to Senior Constable at the highest paypoint for Senior Constable. In the appeal proceeding, Ms O'Brien contends that the Tribunal erred in imposing a sanction resulting in permanent demotion.

Background

  1. [2]
    On 29 March 2018, Assistant Commissioner Taylor decided that Ms O'Brien had engaged in misconduct. The misconduct occurred between May 2015 and March 2016 while Ms O'Brien was a Sergeant and officer-in-charge of a two-officer station in a small and remote town. Ms O'Brien had been promoted to the rank of Sergeant when she took up the position in April 2015.
  2. [3]
    The publican of a hotel in the town was a woman identified as NT. NT’s husband was identified as TT.
  3. [4]
    There are two aspects to the disciplinary charges substantiated against Ms O'Brien. The first was accessing confidential information on the police computer system not in the performance of her official police duties. In particular:
    1. (a)
      on 22 May 2015, Ms O'Brien conducted checks on NT and TT, in the presence of NT;
    2. (b)
      on the same day, Ms O'Brien conducted a check relating to the hotel;
    3. (c)
      on 26 May 2015, Ms O'Brien conducted a check on NT;
    4. (d)
      on 21 June 2015, at the police station, Ms O'Brien again conducted checks on NT and TT, in the presence of NT;
    5. (e)
      on 28 August 2015, Ms O'Brien conducted checks on a person identified as CC;
    6. (f)
      on 9 September 2015, Ms O'Brien conducted checks on a person identified as DHS, to satisfy the interests of NT who had provided the name;
    7. (g)
      on 11 November 2015, Ms O'Brien conducted checks on a person identified as NP, and this was done at the hotel in the presence of NT, and Ms O'Brien used the logon details of a Constable Ayling to access the information;
    8. (h)
      on 2 December 2015, Ms O'Brien conducted checks on NP and a person identified as QG, and these searches were conducted in the presence of NT, as a matter of curiosity;
    9. (i)
      on 18 January 2016, Ms O'Brien conducted checks on NT; and
    10. (j)
      on 31 March 2016, Ms O'Brien conducted checks on TT.
  4. [5]
    The second aspect of the misconduct involved Ms O'Brien releasing confidential information accessed through the police computer system to NT, not in the performance of her duties. In particular:
    1. (a)
      on 22 May 2015, Ms O'Brien released an intelligence submission relating to the hotel to NT, when they were both at the police station; and
    2. (b)
      on 28 August 2015, Ms O'Brien released confidential information to NT about CC by way of a text message saying: ‘just gone done for a bit of weed and cone piece in his car, nothing found in the house’.[2]
  1. [6]
    By way of sanction, Assistant Commissioner Taylor decided to demote Ms O'Brien from Sergeant pay‑point 3.3 to Senior Constable pay-point 2.9, effective immediately. He added:

Given the delay in the proceedings of this matter, I consider you are able to apply for the rank of Sergeant on merit, effective immediately.[3]

  1. [7]
    Ranks in the Queensland Police Service include Senior Constable and Sergeant. There are a series of pay-points within each rank. In the Senior Constable rank, these run from 2.1 (the lowest pay-point) through to 2.10. Within the Sergeant rank, they run from 3.1 through to 3.6. 
  2. [8]
    Ms O'Brien applied to the tribunal for a review of the sanction imposed. She did not seek a review of the substantiation of the allegations against her and the finding of misconduct.
  3. [9]
    The role of the Tribunal in conducting a review is to produce the correct and preferable decision.[4] On 15 May 2019, the Tribunal set aside Assistant Commissioner Taylor’s decision, and substituted a decision that (in summary):
    1. (a)
      Ms O'Brien was demoted from Sergeant pay-point 3.3 to Senior Constable pay‑point 2.10 effective from 29 March 2018;
    2. (b)
      Ms O'Brien was eligible to progress subject to the usual industrial requirements effective from 29 March 2018; and
    3. (c)
      within 12 months, Ms O'Brien must complete three courses: Ethics and Ethical Decision-Making; Information Security; and QPRIME Fundamentals.

The Tribunal’s reasons for decision in summary

  1. [10]
    The Tribunal in its reasons made several references to the seriousness of the misconduct. It regarded the seriousness as exacerbated by the fact that it commenced only a month after Ms O'Brien had been promoted to the rank of Sergeant.[5] The Tribunal said that the disclosure of the intelligence submission involved a ‘gross lack of professional judgment’,[6] as such a submission can contain highly sensitive information. Disclosure could lead to the identification of a police informant, though it was not suggested that such identification had resulted in this case. Further, the Tribunal considered that the use of Constable Ayling’s logon details for one of the accesses constituted a ‘serious failing’,[7] when Ms O'Brien should instead have been setting a good example to the more junior officer. The Tribunal noted that Ms O'Brien was an officer with some seven years’ experience.
  1. [11]
    The Tribunal accepted submissions made on behalf of Ms O'Brien that she had been naïve in her dealings with NT, and that the relationship had ‘evolved into something unhealthy’.[8] Ms O'Brien regarded NT not only as a friend but also as a useful informant, describing her relationship with NT as a professional relationship and a friend. This was despite warnings from other police to be careful in dealing with NT and TT. The Tribunal acknowledged evidence about NT’s vindictive character (but considered it irrelevant), and submissions that Ms O'Brien may have been ‘clouded’ in her dealings with NT.[9] The Tribunal accepted that Ms O'Brien’s conduct may have been out of character.[10] 
  2. [12]
    The Tribunal also took into account a number of other matters, including the need to deter others,[11] before reaching the conclusion that a demotion in rank was necessary.[12] However, the Tribunal considered that demotion to Senior Constable pay-point 2.10 was more appropriate than demotion to Senior Constable pay-point 2.09 in view of the financial impact of demotion upon Ms O'Brien and her cooperation in the disciplinary process.

The appeal

  1. [13]
    The grounds of appeal to be considered are those as amended with the Tribunal’s leave as filed on 3 December 2019.[13] In broad terms, ground 1 is unreasonableness of the sanction imposed; ground 2 is addressing wrong issues in deciding to demote Ms O'Brien; and ground 3 is concluding in error that Ms O'Brien was presently unfit to be a Sergeant.
  2. [14]
    It is common ground between the parties that grounds 1 and 2 raise questions of law only, so that  leave to appeal is not required, but that ground 3 raises a question of fact or mixed law and fact, and therefore, leave is required.[14]
  3. [15]
    We accept this, subject to one observation. Ground 1, to an extent, can be expressed in terms of the sanction being manifestly excessive. In a recent Court of Appeal decision, decided after the present appeal hearing, the Court left open the question of whether a ground that a sanction is manifestly inadequate would involve a question of law only.[15] The Court cited several New South Wales authorities on the topic. However, given that the question was left open, and unreasonableness has generally been seen as involving a question of law,[16] we proceed on that basis. 
  4. [16]
    If the appeal succeeds, Ms O'Brien seeks orders to the effect that the demotion in rank, from Sergeant pay-point 3.3 to Senior Constable pay-point 2.10, be suspended for three years on conditions. The conditions would involve demotion to Senior Constable 2.10 for 12 months from 29 March 2018, and completion of the training courses.

Ground 1: unreasonableness

  1. [17]
    Ground 1 is that the Tribunal erred by imposing an unreasonable, plainly unjust, or manifestly excessive sanction that is not the correct and preferable decision. A series of nine particular errors are contended in respect of the ground of appeal. We consider each of the particular errors, as well as, as argued for Ms O'Brien, whether the sanction itself demonstrates unreasonableness regardless of whether any particular error in the decision-making is established.

First contended error- permanent demotion was not supported by specified findings

  1. [18]
    The first contended error is that permanent demotion in rank should not have been ordered after finding:
    1. (a)
      that the relationship between Ms O'Brien and NT commenced in an appropriate manner in her capacity as a police officer before evolving inappropriately;
    2. (b)
      the cause of the conduct was Ms O'Brien’s naivety rather than any criminal or inappropriate intent; and
    3. (c)
      the conduct was out of character.
  1. [19]
    The first matter is not a fair summary of the Tribunal’s findings. The Tribunal accepted that there was a ‘close friendship’[17] and that the relationship with ‘NT may be described as a relationship that evolved into something unhealthy’,[18] but went on to say that an officer in Ms O'Brien’s circumstances:

…should have been aware of professional boundaries that must exist when working with members of the public… a police officer should maintain a professional relationship to ensure that his or her judgment necessary to perform police duties to a standard expected by the community is not clouded by emotion or personal preference...Ms O'Brien … has allowed her judgment to be clouded in the exercise of her duties when dealing with a member of the public.

  1. [20]
    It is not the case that the Tribunal appears to have considered the relationship an appropriate one at some (earlier) point; rather, it was one that did not observe proper professional boundaries. That said, one would expect any relationship between a police officer and a member of the public to be at all times ‘appropriate’. In any event, the Tribunal discussed the evolution of the relationship.[19]
  2. [21]
    We accept that the Tribunal found that Ms O'Brien was naïve in her dealings with NT.[20] This does not equate with naivety being the cause of the conduct as Ms O'Brien contends. Rather, as can be gleaned from the passage quoted above, the Tribunal considered that the cause was Ms O'Brien’s failure to observe proper professional boundaries in the relationship with NT and TT, resulting in her judgment being clouded in the exercise of her police duties.
  3. [22]
    In relation to the third matter, we accept that the Tribunal found that the conduct may be ‘out of character’ but in any event, that it was not a momentary lapse in judgment and amounted to very serious (mis)conduct.[21] These matters were taken into account by the Tribunal.
  4. [23]
    Such matters were, of course, not the only ones to be taken into account by the Tribunal when it exercised its discretion as to what would be the appropriate sanction. To the extent that these factors may be favourable to Ms O'Brien, they did not compel any particular result.
  5. [24]
    No error has been demonstrated in this respect.

Second contended error- finding that Ms O'Brien was not fit to be a Sergeant

  1. [25]
    The second contended error is that the Tribunal erred by concluding that Ms O'Brien was not fit to be a Sergeant of police.
  2. [26]
    The Tribunal accepted a submission on behalf of the CCC ‘that any suitable programs or training do not take away the fact that Ms O'Brien is not fit to act as a Sergeant of police because of the misconduct’.[22]
  3. [27]
    Mr Black submits that the Tribunal failed to reconcile this with certain evidence about Ms O'Brien’s performance or with its preparedness to allow her to immediately apply for the position of Sergeant. We will deal with the second matter later. In respect of the first, Mr Black observes that the Tribunal discussed a reference by a Senior Sergeant who supervised Ms O'Brien in 2017. Mr Black submits that the reference is direct evidence of Ms O'Brien performing the duties of Sergeant during 2017 to a high standard, ‘and thus evidence of her fitness to act as a Sergeant of police’.[23]
  4. [28]
    However, in our view, references attesting to competent performance after serious misconduct does not necessarily preclude a finding of ongoing unfitness. Good conduct in the period after misconduct and during disciplinary proceedings may demonstrate that lessons have been learned.[24] That said, as the Appeal Tribunal has observed, it would also be somewhat surprising if an officer did not get on with being a productive officer in the face of ongoing disciplinary proceedings. Indeed, subsequent good conduct has not been considered a bar to immediate dismissal in circumstances that the Appeal Tribunal considered it warranted. [25]
  5. [29]
    A range of matters must be taken into account.

Third contended error- finding that working in a small community was an aggravating factor, rather than mitigating factor

  1. [30]
    The third contended error is that the Tribunal erred in finding that working in a small, isolated community was an aggravating factor rather than a mitigating factor.
  2. [31]
    The Tribunal did not identify this explicitly as an aggravating factor, though that impression might be gained from the context. The Tribunal commented that in determining the appropriate sanction it:

… cannot in any way downplay the aggravating features of the conduct that are particularly relevant given Ms O'Brien’s rank as Sergeant at the time of the conduct, the fact that she was warned about [NT], and despite the warnings engaged in the conduct. Ms O'Brien held a trusted position within the QPS and more importantly was working in a small community.[26]

  1. [32]
    It seems to us that on a fair reading of the entirety of paragraph [40] from which this excerpt is taken, and indeed the learned Member’s reasons for a decision as a whole,  that the reference to the size of the community was not found by the Tribunal to be an aggravating feature.
  2. [33]
    Paragraph [40] is a lengthy paragraph traversing many things that the Tribunal considered relevant to determination of the correct and preferable sanction. It commences with a discussion about delay in the disciplinary proceedings and its relevance to the sanction to be imposed. Following the words quoted above, the Tribunal discussed informal warnings Ms O'Brien had received about the need for care in engaging with NT. The Tribunal specifically discounted the relevance of NT’s character as detracting from the seriousness of the conduct.[27] Further, the learned Member set out those factors that she considered to be aggravating elsewhere in her reasons for decision,[28] and did not refer to the size of the community in doing so.
  3. [34]
    In context, we consider that it is sufficiently clear that the factor that concerned the Tribunal was Ms O'Brien’s ‘trusted’ position as officer in charge of the local police station within a small community.[29] She was a senior member of the QPS, expected to provide leadership and guidance to her junior officer and in this manner contribute to the maintenance of discipline amongst operational police officers.[30]
  4. [35]
    If we are wrong in our reading of the Tribunal’s reasons for decision, and if it did refer to the size of the community as an aggravating factor, it did no more than highlight the visibility of an officer’s actions within a small community.
  5. [36]
    No error is established.

Fourth contended error- finding that Ms O'Brien’s experience of 7 years as a police officer was an aggravating factor

  1. [37]
    The fourth contended error is that the Tribunal erred in finding that an aggravating circumstance was that Ms O'Brien was an experienced police officer at seven years’ service in circumstances where her promotion to the rank of Sergeant (officer in charge of an isolated one-person station) occurred well prior to normal promotional timeframes within the Queensland Police Service.
  2. [38]
    Mr Gorry for the Crime and Corruption Commission (CCC) submits that there was no evidence before the Tribunal that Ms O'Brien’s promotion occurred well prior to normal promotional timeframes.
  3. [39]
    As its reasons for decision make clear,[31] the Tribunal, in our view quite properly, regarded Ms O'Brien’s rank of Sergeant as significant.[32] Her length of service as an officer was considered relevant,  in that she was a ‘ police officer with some 7 years’ experience….’.[33] The Tribunal also referred to Ms O'Brien as ‘a Sergeant with 7 years’ experience’.[34]
  4. [40]
    Doubtless, the Tribunal saw the length of service as a matter of some significance. The fact that she was an officer with 7 years’ experience meant that she was expected to be well aware of the requirements to access information in QPRIME for official purposes only and associated with the release of information (including information that could potentially have disclosed the identity of an informant) for authorised purposes only.[35] As a police Sergeant, her misconduct in this regard was an aggravating feature, as she was the officer in charge of the local station, responsible for leadership and discipline.
  5. [41]
    In particular, the learned Member discussed Crime and Corruption Commission v Acting Deputy Commissioner Barron and Anor[36] (Miers’ case) (which, although the Tribunal did not refer to this factor in her discussion, involved a junior officer, a Constable of police)[37] for the general principle that each case turns on its own facts, and then distinguished it from the circumstances of Ms O'Brien’s misconduct.[38]
  6. [42]
    Matters such as rank and length of service are not always neatly sortable into ‘aggravating’ or ‘mitigating’ categories and, depending on the facts of the case, can be either. However characterised, they are circumstances to be taken into account. It was proper for the Tribunal to consider Ms O'Brien’s service for some 7 years as a police officer and her rank at the time of the misconduct. Irrespective of whether her career had involved quick promotion or not, this does not alter the aggravating factor that she was a trusted officer in charge of the local station concerned responsible for leadership and discipline.
  7. [43]
    No error in this regard is established.

Fifth contended error- treatment of the Commissioner’s email dated 30 March 2016

  1. [44]
    The fifth contended error is that the Tribunal erred in concluding that there was no ‘line in the sand’ with respect to the Commissioner’s email dated 30 March 2016 regarding police computer access disciplinary sanctions.
  2. [45]
    This refers to an email sent by the Commissioner of Police to all officers on 30 March 2016 headed ‘Direction to all staff on access of information on QPS computer systems’.[39] The email discussed the serious nature and potential consequences of improper access. The expressed purpose of the email was to make it very clear that there had been a move in community attitudes to the misuse of information held by police to the point where there was now a very low tolerance for such conduct. The conduct will be considered misconduct. Criminal charges will be considered.
  3. [46]
    Mr Gnech for Ms O'Brien made oral submissions to the Tribunal about this email. He quoted a sentence from the email:

Discipline sanctions for inappropriate access of QPS information which have applied in the past will no longer apply in the future, as the bar has been raised in order to clearly reflect organisational and community disapproval for such conduct.[40]

  1. [47]
    Mr Gnech continued:

This is the line in the sand.

… if the position is that as of the 30th March 2016, because of the knowledge of this email, sanctions are to increase, then it has to apply in reverse, in my submission, as well. Conduct that is identified prior to this email, then the old sanctions still apply. Here, in my submission, it is a little bit grey, because all of the conduct except for one check occurred prior to this email being sent out. That one check by my client that was done occurred only the day after… [41]

  1. [48]
    After discussing the general level of awareness in the police service about the email, and the lack of evidence about whether Ms O'Brien knew of the email when she did the last check, Mr Gnech continued:

… any sanction that should have been imposed should have been in line with the prior sanctions rather than any new sanctions.

… the sanction imposed here [by Assistant Commissioner Taylor] is so excessive that it is even excessive in regards to the newer sanctions. …[42]

  1. [49]
    The Tribunal said in its reasons:

I do not accept Mr Gnech’s oral submission that there is ‘a line drawn in the sand’ with respect to the Commissioner’s email about accessing information. I find that the community would expect that a Sergeant of police in a frontline position would be aware of boundaries and the safekeeping of information obtained or accessed from the QPS computer systems.[43]

  1. [50]
    In the appeal, Mr Black likewise submits that the Commissioner’s view expressed in the email, that sanctions had to be hardened, has a corollary that sanctions for earlier conduct might be somewhat less severe. Mr Black acknowledges that the Tribunal in conducting a review was not bound to give effect to such a view, but that it was matter that should have been afforded some weight.
  2. [51]
    We are not persuaded that the Tribunal was required to make more of the Commissioner’s email than it did. The Tribunal noted the contents of the email and considered its relevance to Ms O'Brien’s responsibilities. Mr Gnech had referred the Tribunal to 14 ‘precedent cases’. Some of these were decisions made by internal QPS decision-makers, and some were made by QCAT. Many of them related to conduct before the email (which in any event had been found in those cases to be misconduct), while some related to later conduct or conduct that spanned a period including 30 March 2016. The Tribunal considered them but, in effect, expressed the view that they were of limited assistance as each case must turn on its own facts.[44] The Tribunal considered that the facts in Ms O'Brien’s case differed in material ways to the facts in the cases cited.[45] The one case that the Tribunal did comment on specifically, Miers’ case, predated the email.
  3. [52]
    If it were evident that there was a consistent trend in the precedent cases toward higher sanctions for post-30 March 2016 misconduct as a result of the Commissioner’s email, which the Tribunal opted to follow even though the bulk of Ms O'Brien’s misconduct predated the email, then it may well have been incumbent on the Tribunal to explain why that was appropriate.
  4. [53]
    However, that was not the situation.
  5. [54]
    We do not consider that there was error by the Tribunal in this regard.

Sixth contended error- the sanction does not reflect the new police disciplinary system

  1. [55]
    The sixth contended error is that the sanction imposed by the Tribunal does not properly reflect the principles of the new police disciplinary system which is focussed upon a restorative rather than a punitive approach.
  2. [56]
    This is a reference to ‘New Police Discipline System Policies’.[46] Mr Black submits, and we accept, that QCAT should follow such a policy unless there is a cogent reason to do otherwise.[47] In the Policies document it is noted that:

The discipline system is not punitive in nature and any strategies or sanctions must be imposed with the objectives of improving performance and protecting the reputation of the Service.[48]

  1. [57]
    In the Tribunal’s reasons, it observed that the objects of a disciplinary proceeding are, in summary, to protect the public, to uphold ethical standards within the police service, to promote the reputation of the police service, and to promote and maintain public confidence in the police service; not to punish the officer.[49]
  2. [58]
    While there may be a greater focus on restorative approach in the current QPS policy, the former system was not different in not serving the purpose of punishing an officer for misconduct, as opposed to protecting the public. The sanction imposed must be an appropriate one in all of the circumstances of the misconduct.
  3. [59]
    The Tribunal acknowledged that the sanction it intended to impose would financially impact Ms O'Brien and cause her embarrassment.[50] However, the Tribunal explained why it considered that the sanction was necessary having regard to the purposes of disciplinary proceedings and other matters.[51]
  4. [60]
    Mr Black submits that while the Tribunal referred to protective purposes, it unduly focussed on the misconduct. He notes the Tribunal’s references to the seriousness of the misconduct, the comment about unfitness because of the misconduct, and the comment about the need to deter others.
  5. [61]
    We do not accept this submission. It is undisputed that the Tribunal was required to take into account the nature of the misconduct, notwithstanding that this factor alone was not determinative. We are satisfied that the Tribunal, while mindful of the detriment that demotion would cause to Ms O'Brien, operated on the principle that the purpose of the proceeding was not punitive. The sanction it imposed is one that serves the required purposes, such as improving the performance of the particular officer, irrespective of holding the rank of senior constable or sergeant, by way of the training courses and maintaining appropriate standards in the police service.
  6. [62]
    Error is not established in this regard.
  7. [63]
    Mr Black also notes that the Policy says that consideration should be given to the recency of the misconduct. He submits:

Although it can be discerned from the Tribunal’s findings that the … misconduct occurred more than 3 years before the Tribunal’s decision, the Tribunal gave no express consideration to that fact.[52]

  1. [64]
    We are not persuaded that there was any error in this regard. The Tribunal set out when the misconduct had occurred, noted that Ms O'Brien had continued to perform her duties,[53] and discussed the issue of delay in the disciplinary proceeding.[54] In effect, then, the Tribunal took into account that the misconduct had occurred some years before the hearing.

Seventh contended error- insufficient weight was placed on the mitigating circumstances

  1. [65]
    The seventh contended error is that the Tribunal erred by not placing sufficient weight upon the mitigating circumstances of Ms O'Brien including, but not limited to, her exemplary service history before and after the conduct.
  2. [66]
    It is apparent from the Tribunal’s reasons that it had regard to a range of factors, including those pressed by Mr Gnech for Ms O'Brien. It discussed at some length the submissions made by Mr Gnech. It discussed a reference which spoke of Ms O'Brien performing her duties to a high standard and demonstrating a high work ethic. It noted that Ms O'Brien had continued to perform her duties.
  3. [67]
    There is nothing on the face of the Tribunal’s reasons to indicate that it failed to have genuine regard to mitigating factors. The Tribunal weighed up a range of factors. The Tribunal was conducting an evaluative exercise, in which the exact weight placed on particular factors cannot be measured.
  4. [68]
    However, we see no basis to conclude that insufficient weight was placed on mitigating circumstances.

Eighth contended error- insufficient weight given to delay

  1. [69]
    The eighth contended error is that the Tribunal erred by not placing sufficient weight upon the unexplained and significant delay by the Queensland Police Service to finalise the disciplinary matter.
  2. [70]
    The Tribunal commented in its reasons:

… I accept that any period of delay in disciplinary proceedings is regrettable. The delay in this matter is not excessive, although, should obviously be considered for the purposes of good conduct since the commencement of the disciplinary proceedings and furthermore the effect of any sanction imposed may also be relevant.[55]

  1. [71]
    Mr Black submits that the Tribunal did not identify the delay; there was a 20-month gap between the complaint in April 2016 and the commencement of the disciplinary proceeding, including a 13-month gap between the completion of the disciplinary investigation and commencement of the disciplinary proceeding; and the characterisation of delay as not excessive suggests that the Tribunal did not fully understand the length of the delay.
  2. [72]
    We do not accept this submission. The Tribunal was aware of the chronology and recognised that delay is regrettable. Whether a particular delay is excessive is a question on which reasonable minds can differ. The delay in this case was considerably less than in some of the cases we will discuss later.
  3. [73]
    In the Appellant’s Submissions in Reply filed on 26 June 2020, Mr Black notes the comment in Garth v Queensland Police Service that, where there has been delay, ‘it is necessary to frame an order that does not allow the passing of time to inflict a greater punishment’.[56] We do not consider that this principle was infringed, given that the Tribunal did not see fit to restore Ms O'Brien to the position of Sergeant.
  4. [74]
    Mr Black submits that it was not merely Ms O'Brien’s good conduct since the commencement of the disciplinary proceeding, as mentioned by the Tribunal, which was relevant, but also her good conduct after the misconduct but prior to the commencement of the disciplinary proceeding in February 2018. We accept that this period was relevant, as indeed was the whole of Ms O'Brien’s service history. In the passage quoted above, the Tribunal mentioned specifically the period since the commencement of the disciplinary proceeding. However, a reading of the reasons as a whole indicates that the Tribunal did not confine its attention to Ms O'Brien’s performance in that period. The Tribunal remarked:

… the evidence of Ms O'Brien’s commitment to her duties as a police officer since the date of the conduct giving rise to the disciplinary proceedings is one of a number of matters I must consider on review.[57]

  1. [75]
    Overall, we see no basis for concluding that the Tribunal placed insufficient weight on the factor of delay. The fact of delay did not require any particular result flow.

Ninth contended error- the sanction is excessive compared to precedent cases

  1. [76]
    The ninth contended error is that the Tribunal erred by ordering a sanction which is excessive compared to precedent disciplinary cases.
  2. [77]
    Together with this argument we will consider whether, as submitted by Mr Black, the outcome – that is the sanction itself – demonstrates unreasonableness regardless of whether any particular error in the decision-making process is established. As Mr Black points out, this evaluation is similar to considering whether a criminal sentence is plainly unjust or manifestly excessive. We accept Mr Black’s submission that the Tribunal was exercising a statutory discretion under section 7.4 of the Police Service Administration Act 1990 (Qld) (the PSA Act), and that it was required to exercise the power reasonably. 
  3. [78]
    We note the comments of the High Court in House v The King:[58]

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[59]

  1. [79]
    House v The King, and later cases,[60] were discussed by Gotterson JA in Flegg v CMC & Anor,[61] a case involving a ground of appeal to the effect that QCAT could not reasonably have made a particular decision on the facts it had found. Gotterson JA quoted from the judgment of Hayne, Kiefel and Bell JJ in Li:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.  This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.  This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided… In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused.  His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was ‘perhaps a little bit confusing to find a series of grounds set out.  Bad faith, dishonesty... unreasonableness, attention given to extraneous circumstances, disregard of public policy’ were all relevant to the question of whether a statutory discretion was exercised reasonably.[62]

  1. [80]
    Gotterson JA continued, in his discussion of Li:

After referring to the close analogy between judicial review of administrative action and appellate review of a judicial discretion identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd in the context of unreasonableness and to the principles governing the review of judicial discretion articulated in House v The King concerning inference of unreasonableness, their Honours said:

“…The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

In separate reasons in Li, French CJ reminded that the ground was not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision-maker.  Gageler J described the test for unreasonableness as stringent, noting that judicial determination of Wednesbury unreasonableness in Australia has in practice been rare.[63]

  1. [81]
    We note that the sanctions imposed in the 14 cases cited by Mr Gnech included fines, community service, retraining requirements, rank or pay-point reductions for fixed periods whether immediate or suspended, pay-point reductions within the same rank, pay increase deferrals, and deferrals in progression for a fixed period. None involved a sanction of the nature imposed in the present case: a demotion in rank that would endure for an indefinite (and potentially permanent) period. A pay-point reduction within the same rank has a more certain effect because annual pay-point progression is, essentially, automatic or relatively easy.
  1. [82]
    Mr Black referred us to several cases which likewise did not involve a demotion in rank that would endure for an indefinite period, or where such a demotion was suspended if certain conditions were met.
  2. [83]
    McKenzie v Acting Assistant Commissioner Wright[64] involved a Sergeant who used violence against another officer while off duty. The QCAT Appeal Tribunal imposed a sanction of reduction in rank from Sergeant pay-point 3.5 to Senior Constable pay‑point 2.9 for 12 months. The Appeal Tribunal also remarked in that case that demotion is severe because of the serious financial effect.
  3. [84]
    In Flegg v CMC & Anor, the ultimate outcome in 2014, after a series of appeals, was that the officer was demoted from Sergeant pay-point 3.5 to Senior Constable pay‑point 2.9 for two years, and then he would become eligible to apply for the position of Sergeant after completing two planning and appraisal periods. However, the sanction was wholly suspended for two years on the condition that the officer undertook specified courses. The misconduct had occurred in 2005. It was failure to take appropriate and required action in carrying out the role of a search and rescue coordinator in respect of a vessel that sank, claiming the lives of five people.
  4. [85]
    Interestingly, Margaret McMurdo P dissented in that case, while acknowledging that it was impossible not to feel sympathy for the officer who had demonstrated remorse and insight and had had the disciplinary proceedings hanging over his head for many years. The officer had also been affected by fatigue at the time of the misconduct. Margaret McMurdo P considered that the sanction should not have been suspended. 
  5. [86]
    Miers’ case – which was also amongst the 14 cases cited by Mr Gnech – concerned a Constable Miers who accessed confidential information without an official purpose. There were a number of accesses relating to a friend, and a number relating to an acquaintance, over a period of some 13 months. Constable Miers also discussed some of the information with these people. At the time of the misconduct, Mr Miers had been a police officer for between 2 and 3 years at the lowest rank of Constable. The Tribunal found that there was no improper motivation or personal gain, but observed that the conduct was serious and could have had most serious consequences. The Tribunal decided that the appropriate sanction was a one-pay‑point reduction for six months, as well as community service. The Tribunal indicated that it would have ordered a longer period of reduction in pay if Constable Miers had not already performed community service ordered by Acting Deputy Commissioner Barron in relation to the conduct. The sanction imposed on such a junior officer in terms of rank provides little assistance in Ms O'Brien’s circumstances.
  6. [87]
    Acreman v Deputy Commissioner Brett Pointing[65] involved an Inspector against whom two disciplinary matters were substantiated. First, accessing QPRIME on one occasion without an official purpose. The officer had while off duty encountered the complainant, who was violent towards him. Once on duty, he searched QPRIME for the seller (because he had concerns about other assaults and potential domestic violence and considered making an intelligence submission). He took no further action when the QPRIME check revealed nothing of concern. He was reprimanded for that conduct which was not performed as part of his official duties.
  7. [88]
    The second matter related to the Inspector chancing upon and then accessing confidential documents about an investigation into the complaint against him (which resulted in another disciplinary allegation which had been found unsubstantiated). He sent the documents to his private email address but shortly afterwards deleted them. He reported the events promptly to his supervisor. At the time of the conduct, he had been a police officer for some 34 years. The Tribunal demoted him from Inspector 5.6 to Senior Sergeant 4.1 for 12 months, and ordered that he complete a number of training courses. The decision is subject to appeal. In contrast to Ms O'Brien’s circumstances, the access to QPRIME involved a single incident; the second matter happened following a chance location of the document and the officer self-reported promptly to his supervisor; there was no release of potentially sensitive information to a third party or use of another officer’s login.
  8. [89]
    Spencer v Assistant Commissioner McCarthy & Anor[66] involved accesses to confidential information without an official purpose by a Sergeant on a number of occasions over a period of some 15 months. The information related to a number of persons. The Tribunal accepted that the conduct involved an error of judgment and was out of character. Four of the accesses occurred before the Commissioner’s email of March 2016, while two occurred afterwards. The Tribunal considered that a reduction in rank was not warranted, in view of several matters:
    1. (a)
      not all of the original particulars of misconduct had been substantiated;
    2. (b)
      the Sergeant’s 27 years of service as a police officer with no previous history of misconduct;
    3. (c)
      the absence of personal gain or ill intent in the accesses;
    4. (d)
      the information was not disclosed to third parties;
    5. (e)
      the information accessed was not highly sensitive intelligence reports; and
    6. (f)
      the Sergeant’s insight into his conduct and the manner in which he had addressed that in the past two years.
  9. [90]
    The Tribunal decided that the appropriate sanction was a reduction from Sergeant pay‑point 3.6 to Sergeant pay-point 3.1 for two years, and after that to Sergeant pay‑point 3.5. Again, the circumstances are quite different to Ms O'Brien’s. In particular, none of the information was released to any other person and the information did not include sensitive intelligence reports. Also, the Tribunal was satisfied that the officer had addressed the conduct by the time of its hearing.
  10. [91]
    In none of those cases did the officer concerned use another officer’s logon in the misconduct.
  11. [92]
    Crime and Corruption Commission v Lee (No 2)[67] involved conduct by a Senior Sergeant in 2008. He had been required to investigate whether an officer had assaulted a prisoner. Senior Sergeant Lee failed to watch the video footage of the incident, but he reported that the footage corroborated the officer’s version of events. Senior Sergeant Lee recommended that the officer should be exonerated. When directed to investigate further, he took no steps to do so. When Senior Sergeant Lee’s conduct was investigated, he gave inconsistent versions. The Appeal Tribunal of QCAT ordered in 2019 that he be placed on probation for 12 months. The Appeal Tribunal noted that the conduct was serious, that Senior Sergeant Lee had not demonstrated remorse or insight, and that such conduct has an adverse effect on public trust in police. On the other hand, the Appeal Tribunal noted mitigating factors such as the conduct being an ‘isolated, aberrant incident’[68] in an otherwise unblemished, and lengthy career, that it was not done for any personal gain, and that Senior Sergeant Lee had already paid a significant price in that there had been a brake on his advancement because of the conduct and the resultant lengthy disciplinary process. An appeal against the sanction by the CCC was unsuccessful.[69]
  12. [93]
    Of course, there have been cases where police officers have been dismissed for misconduct of various types, but so far as misconduct involving access to and release of confidential information is concerned, it is not suggested that there have been sanctions of dismissal for such misconduct conduct alone nor permanent demotion in rank.
  13. [94]
    Mr Black submits that the Tribunal’s decision in Ms O'Brien’s case was unreasonable and unjust in that, although technically it permits Ms O'Brien to be promoted to Sergeant at any time, the timing of any promotion depends on vagaries entirely unrelated to her misconduct. These include the availability of an advertised position and competition with other applicants. Further, her prospects of promotion are necessarily hindered by the existence of the demotion itself. Mr Black submits that it is implicit in the Tribunal’s reasoning that it did not consider that there was any reason, such as a lack of integrity, why Ms O'Brien could not immediately be a Sergeant. The Tribunal ought, he submits, have itself determined when Ms O'Brien should progress to the rank of Sergeant. This would have achieved the protective purposes of the disciplinary process. The sanction imposed by the Tribunal goes beyond protective purposes, as it is uncertain in impact, arbitrary in length, and punitive in effect, Mr Black submits.
  14. [95]
    Further, as we have noted, the sanction involved demotion for an indefinite period, unlike other cases involving access to and unauthorised release of confidential information. We are mindful of the comments of Judicial Member Thomas in O'Brien v Assistant Commissioner Stephen Gollschewski:

The need for consistency and reasonable comparability is important in these matters. That is not to say that past decisions must be slavishly followed, or that QCAT is bound to adopt the same level as that chosen by police decision-makers. But when a certain level of response is discernible from past decisions, there should be some reason that it justifies departure from it.[70]

  1. [96]
    It is of course important to add that each case must turn on its own facts. Comparisons are somewhat elusive because circumstances are highly variable. Numerous factors are relevant in the exercise of the discretion. Further, reasonable minds will differ on what is the most appropriate sanction on any particular set of facts.
  2. [97]
    The circumstances of Ms O'Brien’s accessing of and release of confidential information are more serious than the other cases to which the Tribunal was referred. The access occurred on 12 occasions over almost 10 months and on numerous occasions was performed in the presence of NT and on one occasion was to satisfy the interest of NT. Further, Ms O'Brien’s use of another officer’s logon on an occasion of access was an aggravating feature.[71] In relation to the release of information, an intelligence submission was one of the documents concerned,[72] and the Tribunal considered it a gross lack of professional judgment for a Sergeant of police.[73] Other confidential information was released via a phone text message.[74] All of these matters were significant to the Tribunal’s determination of the sanction. The Tribunal found that training programs do not overcome her unfitness to act as a Sergeant because of the misconduct,[75] irrespective of her commitment to her duties.[76]
  3. [98]
    On a fair reading of the Tribunal’s reasons for decision, it concluded that no training could ensure Ms O'Brien no longer had the lack of ‘professional boundaries’ that had ‘clouded’ her judgment in the exercise of her duties[77] and the ‘gross lack of professional judgment’ made evident by aspects of the misconduct[78] which had become evident almost immediately after her promotion to the rank of Sergeant.[79] She formed this conclusion, while cognisant of Senior Sergeant Newman’s references about Ms O'Brien’s performance after the conduct found to be misconduct.[80] In relation to the references, we observe, as the Tribunal summarises,[81] that they attest to her work ethic, positivity, enthusiasm for her duties and competence at operational policing. The Senior Sergeant states, again as the Tribunal alludes to, that although aware of the disciplinary proceedings,[82] he was not aware of the details, as in the alleged conduct. Therefore, the reference did not address the issues of concern to the Tribunal. (The contents of a later reference were not specifically discussed by the Tribunal, but similarly it did not address the issues that the Tribunal had identified.)
  4. [99]
    In the present case, while the sanction was onerous, it did not lack an evident and intelligible justification. The Tribunal highlighted aspects of the misconduct which made it particularly serious, and which in the Tribunal’s view demanded a demotion in rank notwithstanding the factors in Ms O'Brien’s favour. The adverse factors included the number of accesses over an extended time period, which involved information about several people; the use of a more junior officer’s logon on one occasion; and the disclosure of confidential information including an intelligence submission. Demotion in rank is a disciplinary measure specifically provided for in the provision conferring the discretion, along with an unlimited range of other options.[83]
  5. [100]
    As we have mentioned, the Tribunal commented in its reasons that ‘any suitable programs or training do not take away the fact that Ms O'Brien is not fit to act as a Sergeant because of the misconduct’.[84] Mr Black submits that there is a certain illogicality in the Tribunal making that observation yet ordering Ms O'Brien to complete training and permitting her to immediately apply for the rank of Sergeant.
  6. [101]
    Mr Gorry for the CCC, however, submits that there is no illogicality. Rather than determining that Ms O'Brien was presently fit to return to the rank of Sergeant, the Tribunal was enabling Ms O'Brien to apply. Should she apply for a position, then her fitness, like that of any other candidate, would fall to be assessed by the interviewing panel. That was more appropriate, Mr Gorry submits, than the Tribunal making a prediction of when Ms O'Brien would achieve fitness to return to the rank of Sergeant in the circumstances of the case.
  7. [102]
    We consider that it was logically open to the Tribunal to impose the sanction that it did. The Tribunal considered it necessary for Ms O'Brien to complete the training courses in light of the misconduct, regardless of whether she might at some point return to the rank of Sergeant. As a police officer, she is expected to be aware of the matters to be covered. The Tribunal left it open for Ms O'Brien to apply at any time for the position of Sergeant, but made no pre-determination of whether she was fit for the role.  This is not inconsistent with the objects of disciplinary proceedings in all of the circumstances.
  8. [103]
    Overall, we are not persuaded that the Tribunal’s decision was unreasonable. Ground 1 is not established.

Ground 2: addressing wrong issues

  1. [104]
    Ground 2 is that the Tribunal identified the wrong issues or asked itself the wrong questions in relation to whether or not Ms O'Brien should be demoted, because:
    1. (a)
      the Tribunal failed to consider whether Ms O'Brien was unfit to be a Sergeant of police in the sense of lacking the necessary character and integrity such that the protective purposes of police discipline required her demotion from the rank of Sergeant;
    2. (b)
      the Tribunal failed to undertake its consideration of fitness to be a Sergeant of police as at the time of the Tribunal’s decision (rather than at the time of the misconduct or the time of the Assistant Commissioner’s decision); and
    3. (c)
      the Tribunal failed to consider whether, even if Ms O'Brien was presently unfit to be a Sergeant of police, she could be restored to the rank of Sergeant at any identifiable time or upon any identifiable conditions.

Ground 2(a)

  1. [105]
    Mr Black submits that, as the purpose of the proceeding was not punitive, a demotion in rank could be appropriate only if it advanced the purpose of protecting the public or the police service. The real question, Mr Black submits, was whether Ms O'Brien’s character or integrity made demotion reasonably necessary for that purpose. The  Tribunal failed, Mr Black submits, to consider questions such as whether, in light of its findings about naivety and the misconduct being out of character, further programs or training could not serve the required purpose by ensuring that the conduct would not be repeated; whether a period of closer supervision and mentoring by a more senior officer would not adequately meet the purpose; and what if anything about Ms O'Brien’s character or integrity meant that demotion was reasonably necessary to achieve the purpose. Mr Black submits that the Tribunal’s failure to consider these matters indicates that it failed to properly apply the concept of fitness to be a Sergeant.
  2. [106]
    Although the Tribunal accepted that the conduct may have been out of character, it found that it occurred over a considerable period of time and was not an isolated incident—it was not a momentary lapse of judgment. Ms O'Brien’s evidence about her naivety, at least in part, resulted in the imposition of the requirement to undertake courses.[85]
  3. [107]
    As discussed earlier, the Tribunal’s concerns in assessing Ms O'Brien’s fitness to be a Sergeant related to Ms O'Brien’s judgment. The Tribunal found that she allowed her judgment to be clouded because of a failure to observe proper professional boundaries, and she had demonstrated  a gross lack of professional judgment in making a disclosure of an intelligence report in the presence of a member of the public.
  4. [108]
    It is sufficiently clear that the Tribunal understood the purpose of the disciplinary process and gave proper consideration to the relevant factors.
  5. [109]
    We do not consider that the Tribunal erred in applying the concept of fitness.

Ground 2(b)

  1. [110]
    Mr Black begins by submitting that the question of fitness at the time of the Tribunal’s decision was critical, rather than the question of fitness at some earlier time. This submission, which we accept, relies on a confluence of two principles:
    1. (a)
      in merits review, subject to any contrary prescription in the particular legislation being applied, a tribunal must consider the facts and circumstances at the time of its decision;[86] and
    2. (b)
      in the similar arena of disciplinary proceedings in the tribunal’s original jurisdiction, present fitness is critical.[87]
  2. [111]
    In support of the contention that the Tribunal failed to consider fitness at the time of its decision, Mr Black firstly notes that, in its discussion about ‘What is the Tribunal’s Power on review?’, the Tribunal made no reference to the need to assess Ms O'Brien’s present fitness. We accept this. However,  the Tribunal did refer to the material before it as including fresh evidence filed by Ms O'Brien, which it had given leave to Ms O'Brien during the oral hearing to rely on.[88] This was exhibit 2: a reference dated 5 February 2019, which discussed Ms O'Brien’s performance since July 2017. The oral hearing was conducted on 18 February 2019. Further, the Tribunal specifically referred to Mr Gnech’s submission that one of the critical issues was whether Ms O'Brien ‘is not fit to be a Sergeant…’[89], that is, using the present tense.
  3. [112]
    Mr Black secondly submits that, in the Tribunal’s discussion of the Assistant Commissioner’s findings relevant to sanction, it emphasised Ms O'Brien’s service, rank and failings as at the time of the misconduct.
  4. [113]
    While this may be a fair characterisation of the discussion, it is important to note that the Tribunal was recounting the relevant history rather than expressing its own assessment at that point. Further, there is nothing to suggest that Assistant Commissioner Taylor confined himself to the question of fitness at the time of the misconduct. The Tribunal noted that the Assistant Commissioner:

… acknowledged the several good character references that praised Ms O'Brien for her work ethic and commitment during the investigation for misconduct as well as Ms O'Brien’s favourable service history.[90]

  1. [114]
    Significantly, the Tribunal quoted the Assistant Commissioner:

When considering your choices and cumulative conduct, I lack confidence in your ability and suitability at this time to perform the duties associated with that of a Sergeant.[91]  

  1. [115]
    We do not consider that the Tribunal’s description of the Assistant Commissioner’s findings indicates any misconception on the Tribunal’s part – or, for that matter, the Assistant Commissioner’s part – that past fitness rather than present fitness was ultimately relevant.
  2. [116]
    Mr Black thirdly submits that the Tribunal’s discussion of what would be the correct and preferable decision focussed almost exclusively on the circumstances at the time of the misconduct. Mr Black acknowledged exceptions in that the Tribunal said that Ms O'Brien had cooperated with the police service and continued to perform her duties since the commencement of the disciplinary proceedings, and that the Tribunal accepted that Ms O'Brien had undertaken her duties to a high standard during a period in 2017.
  3. [117]
    We consider that the fact that the Tribunal discussed Ms O'Brien’s performance since the misconduct indicates that it was not under a misconception that the question of fitness at the time of the misconduct was determinative.
  4. [118]
    Mr Black fourthly submits that the Tribunal did not refer to or discuss the 5 February 2019 reference, which included information about Ms O'Brien’s duties and conduct after the Assistant Commissioner’s demotion decision.
  5. [119]
    It is true that the Tribunal did not discuss the contents of this reference in particular, though it did refer, as mentioned above, to Exhibit 2 which was the reference. The absence of discussion of the reference does not establish a misconception about the relevant time, in our view.
  6. [120]
    Mr Black fifthly submits that the Tribunal did not refer to or discuss the submission made on behalf of Ms O'Brien that she had performed the role of Sergeant ‘for two years before she was demoted and demonstrated, clearly, her high level of professionalism and competencies’.[92]
  7. [121]
    However, we note that the Tribunal did refer to Ms O'Brien’s ‘commitment to her duties as a police officer since the date of the conduct …’[93] and to the relevance of ‘good conduct since the commencement of the disciplinary proceedings’.[94] The Tribunal did, in effect, take into account the substance of the submission in question.
  8. [122]
    Overall, we are not persuaded that there was error in this regard.

Ground 2(c)

  1. [123]
    In relation to ground 2(c), Mr Black submits that if Ms O'Brien was unfit to be a Sergeant at the time of the Tribunal’s decision, the Tribunal should have considered whether some form of disciplinary action could address that unfitness and enable her to be restored to the rank of Sergeant. Mr Black submits that the Tribunal failed to discuss the option of mentoring, which had been pressed in submissions, and that this failure was an error of law.
  2. [124]
    The Tribunal explained its reasons for imposing the sanction that it did. It specifically referred to submissions pressed on Ms O'Brien’s behalf about the possibility of ‘training and guidance’.[95] It is sufficiently clear that guidance may, at the very least, include mentoring. However, it is also sufficiently clear that the Tribunal did not consider such steps would necessarily render Ms O'Brien fit to be a Sergeant at any identifiable future time. Insight and judgment do not necessarily flow from experience and training: hence, the Tribunal’s finding that ‘Ms O'Brien is not fit to act as a Sergeant of police because of the misconduct’[96] in all of the circumstances of the case.  Therefore, so far as Ms O'Brien’s return to the position of Sergeant was concerned, the Tribunal concluded that she could do so but only through the usual, and uncertain, promotional avenue.
  3. [125]
    Ground 2 is not established.

Ground 3: wrong conclusion on fitness

  1. [126]
    Ground 3 is that the Tribunal wrongly concluded that Ms O'Brien was presently unfit to be a Sergeant.
  2. [127]
    Mr Black submits that the Tribunal should have concluded that Ms O'Brien was fit to be a Sergeant, having regard to the following matters:
    1. (a)
      the misconduct had occurred between May 2015 and March 2016, during Ms O'Brien’s first year as a Sergeant;
    2. (b)
      the misconduct was out of character and resulted from naivety and misjudgement, and there was no motivation of personal benefit;
    3. (c)
      except in regard to a minor aspect of one particular, Ms O'Brien accepted and acknowledged her conduct;
    4. (d)
      in the approximately two years after the misconduct, and before the Assistant Commissioner’s decision, Ms O'Brien performed her duties as a Sergeant of police professionally and to a high standard; and
    5. (e)
      in the 13 or 14 months between the Assistant Commissioner’s decision and the Tribunal’s decision, Ms O'Brien performed her duties as a Senior Constable professionally and to a high standard.
  3. [128]
    For the reasons explained earlier in relation to the other grounds of appeal, the Tribunal found that the misconduct demonstrated a lack of professional boundaries that affected her judgment over a considerable period of time between May 2015 and March 2016, and in respect of disclosure of the intelligence report, a gross failure of professional judgment, not a mere or momentary mis-judgment. The issues of judgment emerged almost immediately after she was promoted to the rank of Sergeant.
  4. [129]
    The Tribunal was aware of and discussed Ms O'Brien’s conduct in the performance of her duties as Sergeant, as revealed by Senior Sergeant Newman’s reference of 23 February 2018. However, as discussed earlier, the reference did not address relevant issues. Although the Tribunal did not specifically refer to the reference of Senior Sergeant Newman dated 5 February 2019, that does not mean she overlooked it. It simply did not assist (if she did in error overlook it, it would be immaterial to the outcome as it does not address the issues that concerned the Tribunal.)
  5. [130]
    There is no basis for disturbing the Tribunal’s finding, or for granting leave to appeal on this issue.

Non-publication order

  1. [131]
    An oral application for a non-publication was made by the CCC at the hearing. The other parties did not object to an order in similar terms to the one made by the Tribunal in the review.  We made such an order, for the same reasons given by the Tribunal.

Conclusion and orders

  1. [132]
    In respect of ground 3, we are not persuaded that the Tribunal erred. We therefore refuse leave to appeal on that ground.
  2. [133]
    Grounds 1 and 2, involving questions of law, have not been established. The appeal on these grounds should be dismissed.
  3. [134]
    We make a non-publication order in the terms indicated.

Footnotes

[1] O'Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 127 (O'Brien v AC Taylor).

[2]  Ibid [5].

[3]  Exhibit 1 in OCR085-18, 18.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1).

[5] O'Brien v AC Taylor, [46].

[6]  Ibid [35].

[7]  Ibid.

[8]  Ibid [30].

[9]  Ibid [31].

[10]  Ibid [36].

[11]  Ibid [44].

[12]  Ibid [48].

[13]  Appeal Tribunal order made on 26 February 2020.

[14]  QCAT Act, s 142(3)(b).

[15]Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201, [47].

[16]  See, for example, Flegg v Crime and Misconduct Commission and Anor [2013] QCA 376, [22].

[17] O'Brien v AC Taylor, [25].

[18]  Ibid [30].

[19]  Ibid [24]-[28].

[20]  Ibid [29].

[21]  Ibid [36].

[22]  Ibid [37].

[23]  Appellant's Outline of Submissions filed 3 December 2019, [26(a)].

[24] Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490, [24].

[25] Crime and Corruption Commission  v Queensland Police Service & Anor [2015] QCATA 15, [43].

[26] O'Brien v AC Taylor [40].

[27]  Ibid [31]-[32].

[28]  Ibid [45].

[29]  Ibid [31], [40].

[30]  Ibid [46].

[31]  Ibid [31], [40].

[32]  Ibid [31], [32], [40], [46], [48].

[33]  Ibid [32].

[34]  Ibid [42]. To be clear, in context, the Tribunal was not under a misapprehension (and nor was it submitted) that Ms O'Brien had 7 years’ experience as a Sergeant, but that her overall period of service was some 7 years at the time of the commencement of the misconduct.

[35]  Ibid [31], [33], [34], [35], [36], [38].

[36]  [2015] QCAT 96 (Miers’ case)

[37] O'Brien v AC Taylor [44].

[38]  Ibid.

[39]  Exhibit 3 in OCR085-18.

[40]  Transcript 1-30.

[41]  Ibid.

[42]  Ibid 1-31.

[43]O'Brien v AC Taylor, [38].

[44]  Ibid [43].

[45]  Ibid [42].

[46]  Appeal Book, Tab 7.

[47]  For the role of policy, see for example Miers’ case, [29].

[48]  Under heading ‘Purpose and Scope’ (document is not page-numbered).

[49] O'Brien v AC Taylor [9].

[50]  Ibid [47].

[51]  Ibid [48].

[52]  Appellant's Outline of Submissions filed 3 December 2019, [29].

[53] O'Brien v AC Taylor [39].

[54]  Ibid [38], [40].

[55]  Ibid [40]. Footnote omitted.

[56]  [2013] QCATA 357, [25].

[57] O'Brien v AC Taylor [39].

[58]  (1936) 55 CLR 499 (House v The King).

[59]  Ibid 504-5.

[60] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury); Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li); and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

[61]  [2014] QCA 42, [14]-[16] (Flegg v CMC & Anor).

[62]  Ibid. Footnotes omitted.

[63]  Ibid.  Footnotes omitted.

[64]  [2011] QCATA 309.

[65]  [2019] QCAT 95.

[66]  [2019] QCAT 375.

[67]  [2019] QCATA 151 (CMC v Lee (No 2)).

[68]  Ibid [62].

[69] Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201.

[70]  [2014] QCATA 148, [48]. Footnotes omitted.

[71] O'Brien v AC Taylor [35].

[72]  Ibid [19].

[73]  Ibid [35].

[74]  Ibid [20].

[75]  Ibid [37].

[76]  Ibid [39].

[77]  Ibid [32].

[78]  Ibid [35].

[79]  Ibid [46].

[80]  Ibid [7], [39].

[81]  Ibid [39].

[82]  Ibid.

[83]  PSA Act, s 7.4(3).

[84] O'Brien v AC Taylor [37].

[85] O'Brien v AC Taylor, [49].

[86]  See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31, [49].

[87] CMC v Lee (No 2), [44].

[88]O'Brien v AC Taylor [7].

[89]  Ibid [22].

[90]  Ibid [13].

[91]  Ibid [17], emphasis added.

[92]  Appellant's Outline of Submissions filed 3 December 2019, [46(e)].

[93] O'Brien v AC Taylor [39].

[94]  Ibid [40].

[95]  Ibid [37].

[96]  Ibid.

Close

Editorial Notes

  • Published Case Name:

    O'Brien v Assistant Commissioner Taylor & Anor

  • Shortened Case Name:

    O'Brien v Assistant Commissioner Taylor

  • MNC:

    [2021] QCATA 12

  • Court:

    QCATA

  • Judge(s):

    Member Howard, Member Kanowski

  • Date:

    29 Jan 2021

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
Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95
2 citations
Jump To
Cite 1 - [2019] QCAT 95
Cite 2 - [2019] QCAT 95
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K.B., 223
2 citations
Jump To
Cite 1 - (1948) 1 K.B., 223
Cite 2 - (1948) 1 K.B., 223
Crime and Corruption Commission v Acting Deputy Commissioner Barron [2015] QCAT 96
2 citations
Jump To
Cite 1 - [2015] QCAT 96
Cite 2 - [2015] QCAT 96
Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151
2 citations
Jump To
Cite 1 - [2019] QCATA 151
Cite 2 - [2019] QCATA 151
Crime and Corruption Commission v Queensland Police Service and anor [2015] QCATA 15
2 citations
Jump To
Cite 1 - [2015] QCATA 15
Cite 2 - [2015] QCATA 15
Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490
2 citations
Jump To
Cite 1 - [2010] QCAT 490
Cite 2 - [2010] QCAT 490
Flegg v Crime and Misconduct Commission [2013] QCA 376
2 citations
Jump To
Cite 1 - [2013] QCA 376
Cite 2 - [2013] QCA 376
Flegg v Crime and Misconduct Commission [2014] QCA 42
2 citations
Jump To
Cite 1 - [2014] QCA 42
Cite 2 - [2014] QCA 42
Garth v Queensland Police Service [2013] QCATA 357
2 citations
Jump To
Cite 1 - [2013] QCATA 357
Cite 2 - [2013] QCATA 357
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lee v Crime and Corruption Commission [2020] QCA 201
3 citations
Jump To
Cite 1 - [2020] QCA 201
Cite 2 - [2020] QCA 201
Cite 3 - [2020] QCA 201
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
2 citations
Jump To
Cite 1 - [2011] QCATA 309
Cite 2 - [2011] QCATA 309
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18
2 citations
Jump To
Cite 1 - [2013] HCA 18
Cite 2 - [2013] HCA 18
O'Brien v Assistant Commissioner [2019] QCAT 127
2 citations
Jump To
Cite 1 - [2019] QCAT 127
Cite 2 - [2019] QCAT 127
O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148
2 citations
Jump To
Cite 1 - [2014] QCATA 148
Cite 2 - [2014] QCATA 148
Shi v Migration Agents Registration Authority (2008) HCA 31
2 citations
Jump To
Cite 1 - (2008) HCA 31
Cite 2 - (2008) HCA 31
Spencer v Assistant Commissioner McCarthy [2019] QCAT 375
2 citations
Jump To
Cite 1 - [2019] QCAT 375
Cite 2 - [2019] QCAT 375

Cases Citing

Case NameFull CitationFrequency
Acreman v Deputy Commissioner Pointing [2021] QCATA 1333 citations
Anderson v Crime and Corruption Commission [2021] QCATA 683 citations
Crime and Corruption Commission v Assistant Commissioner MJ Keating [2021] QCAT 4192 citations
Crime and Corruption Commission v Carless [2021] QCAT 2163 citations
Young v Dawson (No. 2) [2022] QCAT 483 citations
1

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