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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
OP v Gollschewski (No 2)  QCATA 45
DEPUTY COMMISSIONER STEVEN GOLLSCHEWSKI
20 April 2021
9 April 2021
Judicial Member D J McGill SC
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – appeal from decision of Tribunal upholding findings of sexual abuse of son and breach of bail condition – decisions set aside – on rehearing, charges not substantiated – new sanction required – sanction of suspension – sanction suspended
Crime and Corruption Act 2001 (Qld) s 219L
Aldrich v Ross  2 Qd R 235
Austin v Martin  QCAT 120
Compton v Stewart  QCAT 384
DA v Stewart  QCATA 359
DA v Stewart (No 2)  QCATA 162
Flanagan v Gee  QCAT 204
Flegg v Crime and Misconduct Commission  QCA 42
Harvie v Stewart  QCAT 388
Kennedy v Stewart  QCAT 66
Kennedy v Stewart  QCATA 258
McKenzie v Wright  QCATA 309
Police Service Board v Morris (1985) 156 CLR 397
Spencer v Baulch  QCA 234
Stewart v Dark  QCA 228
M Black, instructed by Gilshenan & Luton, solicitors
S A McLeod QC, instructed by Police Service Solicitor
REASONS FOR DECISION
- This is an appeal from the decision of a Tribunal Member on 11 October 2019 in a Police disciplinary matter. The appellant had been charged with official misconduct, constituted by five matters, which had all been upheld by the respondent, and had applied to the Tribunal to review that decision. The Tribunal set aside the decision of the respondent in respect of matters 2 and 3, confirmed the decision of the respondent in respect of matters 1, 4 and 5, and confirmed the decision of the respondent that the applicant be dismissed from the service. The appellant challenged before the Appeal Tribunal the decisions of the Tribunal in respect of matters 1 and 4. On 18 December 2020 I granted leave to appeal, allowed the appeal, set aside the decisions in respect of matters 1 and 4 and adjourned the matter for hearing on sanction in respect of matter 5.
- In his original decision, the respondent imposed a separate sanction in respect of each matter, but in all cases the sanction was the same, dismissal from the service. When dealing with matter 5, however, the respondent said:
As I did for Matter Four, in arriving at my decision on sanction with this matter I have taken into account all the circumstances of this situation. In my view to consider this matter in isolation would result in a decision which fails to reflect the gravity of the behaviour when considered as a whole.
- When dealing with matter 4, the respondent had said:
In arriving at a decision on sanction on this particular matter I have taken into account the entire circumstances of your behaviour. To attempt to consider a sanction for this matter in isolation to your other behaviour would in my view result in an error.
- The Tribunal Member, although not substantiating matters 2 and 3, held that the matters substantiated were so serious that they warranted the sanction of dismissal. The decision and the reasons speak of the sanction as one sanction for all matters substantiated. That is consistent with the approach of the Court of Appeal in Stewart v Dark  QCA 228. The Court held that one allegation that the Appeal Tribunal had held not substantiated was substantiated, and remitted the matter to the Appeal Tribunal to determine the sanction to be imposed. At  the Court said: “The conduct in respect of matter 4 must be looked at together with the conduct in respect of matters 1 and 2 and also, for that matter, 3, in order to arrive at the appropriate sanction.”
- When that matter returned to the Appeal Tribunal, it held that the effect of this comment was that sanction should be determined globally by reference to all the matters which had been substantiated. I respectfully agree with that approach. Hence it necessarily follows, from the fact that I set aside two of the adverse findings of the Tribunal, that the sanction imposed on the appellant by the Tribunal must be reconsidered. Unlike the position before the respondent and before the Tribunal, I must determine a sanction for matter 5 viewed in isolation. It is not necessary for the appellant to show some particular legal error in the Tribunal’s decision on sanction.
Circumstances of Matter 5
- Misconduct was alleged against the appellant in the following terms:
On 23 March 2011 at Rockhampton your conduct was improper in that whilst suspended from the QPS and within the Rockhampton District Court you:
- (a)used inappropriate and offensive language;
- (b)attempted to leave the precinct of the Court without authority; and
- (c)inappropriately applied force against a police officer.
- Those particulars are curiously sparse. Further and better particulars of the matter included that:
- You were the accused standing in the dock while verdicts were being delivered by a jury in the Rockhampton District Court;
- Upon hearing the verdicts you shouted among other words: ‘fuck’, ‘you got it wrong your Honour’, ‘I haven’t fucking done any fucking wrong’, ‘this is bullshit Mr Britton. Frigging bullshit. All of this is unjust.’;
- You climbed over the Perspex barrier and began to walk out of the Courtroom while shouting;
- You struggled with a police officer who then tried to prevent you leaving the courtroom causing scratches to the elbows and cheeks of the officer.
- This matter arises out of the behaviour of the appellant when the jury returned their verdict in his first trial in the District Court, when he was convicted of a number of sexual offences against his son. While in the dock, he was technically in custody, although he had been on bail before the trial, and during adjournments. What he said was recorded in the Court transcript, which gives a time when the jury returned and a time when the Court adjourned seven minutes later after the jury had been returned to their room. The incident covered about five minutes.
- The behaviour occurred before the judge, the jury, counsel and any persons in the public gallery. Initially the appellant was struggling with a lone police officer, although ultimately reinforcements arrived, and the appellant was taken to the cells. Such behaviour is quite unusual from defendants convicted after trials, and for a police officer indicated a lack of proper respect for the court process from someone who had a particular responsibility for upholding the law. It was particularly unseemly for him to engage in a public struggle with another police officer.
- Before the respondent, and before the Tribunal, the appellant admitted that the particularised conduct occurred, and only contested whether it amounted to misconduct as defined in the Police Service Administration Act 1990 (Qld) s 1.4, a point not pursued on appeal. He expressed remorse for his behaviour, and attributed it to the stress he was under at the time, which aggravated pre-existing mental health problems. He relied on a report from a psychiatrist who had seen him on a few occasions, but not for almost a year before, and over two and a half years after, the trial.
- When asked to comment on the appellant’s mental health as at 23 March 2011, the psychiatrist said (at P182):
I have no doubt that he suffered Post Traumatic Stress Disorder with associated Depression as a result of the extreme trauma experienced in [an earlier unrelated incident in the course of his duties.] It is likely that this condition has not resolved and that it has been exacerbated by ongoing stressors.
- He had earlier said that the announcement of the guilty verdicts “had the effect of disturbing the balance of his mind, which was already vulnerable due to previously existing conditions. Temporarily his ability to control his actions or to consider their consequences were seriously impaired.” He also noted that the appellant had not been receiving regular specialist treatment.
- The respondent relied before me on a passage in his reasons where he had said that a careful reading of the psychiatrist’s report led him to believe that the doctor was not making a diagnosis or giving a professional opinion, but rather was simply restating what the appellant had told him. This led him to have little regard to any mental health issues. I do not agree with that characterisation of that report. I regard the passages quoted as clear expressions of professional opinion as a psychiatrist. I note that the first quote was essentially repeated from page 7 of the report, where it appeared under the heading “Diagnostic Opinion”. This indicated that the respondent’s decision on sanction was affected by a factual error.
- It is established that a psychiatric condition of insufficient severity to excuse the relevant conduct completely can nevertheless be relevant to sanction. In view of the evidence of the psychiatrist, that at the relevant time the appellant’s judgment and self-control were seriously impaired by his pre-existing psychiatric conditions, I consider that in this case this is a relevant mitigating circumstance. The authorities indicate that it is relevant particularly, but not exclusively, in the area of general deterrence.
- Reference was made by the respondent to the well known passage from Aldrich v Ross  2 Qd R 235 at , drawing attention to the need to recognise as significant the perception of the decision maker as to what is needed for the maintenance of internal discipline in the Police Service, because of particular expertise in the managerial requirements of the Service. This however is of reduced significance where the respondent was apparently determining sanction on a global basis, taking into account all matters, rather than determining sanction for matter 5 in isolation. Indeed, the passage from the reasons cited earlier suggests that, if fixing a sanction for matter 5 in isolation, a less severe sanction than dismissal would have been adopted.
- I accept that the purpose of disciplinary proceedings is to be protective of society as a whole, by the maintenance of public confidence in the Police Service, of the self-esteem of police officers and of efficiency. It is important that an officer have the requisite character and personal qualities to be part of the Police Service. The return by a jury of its verdict on a charge of a serious criminal offence is always stressful for the defendant, but the possibility of a guilty verdict is always open, and a defendant should be prepared. It has been said that the public expects police officers to behave with due propriety regardless of stress. The police officer who had to restrain him was put in a difficult, unpleasant and, in view of the particulars, somewhat painful position which persisted for some minutes. This is misconduct of some significance, and on the face of it deserving of significant sanction. There are however a number of mitigating factors.
- The appellant had already spent a period in custody while awaiting trial, and faced the prospect of returning to prison where he feared the double burden of being a child sex offender and a policeman. This was in a context where his mental resources were already weakened by the pre-existing psychiatric conditions I have referred to, and the stress associated with the prolonged and unpleasant breakdown of his marriage.
- It is also relevant to consider the course of events and the adverse consequences which the appellant has already suffered. He joined the Police Service in 2001, had a good service record, was spoken favourably of in reviews, and had achieved the rank of Senior Constable in July 2007. Because of the charges against him, he was suspended from duty, without pay, on 27 March 2009, and was in that situation when the relevant conduct occurred. The disciplinary proceedings had to await the completion of the criminal trials, and an appeal, so he remained suspended until he was dismissed on 19 February 2016. That decision has not been stayed, so that it is now twelve years since he has been able to carry out his duty or to earn income as a serving police officer.
- This will have a significant and lasting adverse financial impact on him, although it is difficult to assess just how great it will be. I was told at the hearing that under the Police Service Administration Act 1990 (Qld) s 6.3(2)(b) there exists a discretion in the Commissioner to pay the appellant some or all of the pay lost during the period of suspension, but I have no idea how such a discretion is likely to be exercised. I was also told that, although there is no relevant legislative provision, if the dismissal is set aside, the appellant will be entitled to back-pay in respect of the period since the original decision. Even if he does receive back pay for all twelve years, his police career, and the progression of pay grades and promotion that could reasonably have been expected, will have been significantly disrupted, and he will have lost any benefit from extra allowances and overtime he might well have otherwise received.
- There have been decisions where such matters have been taken into account. In Kennedy v Stewart  QCAT 66, an officer had been dismissed from the service because of adverse decisions on three matters, two of which were set aside by the Tribunal on appeal. A sanction had to be determined for the surviving matter, dishonestly obtaining the benefit of a portable camping fridge the property of a Police Citizens Youth Club: . The Tribunal found an absence of remorse, and that the appellant had told deliberate lies during the investigation. The Tribunal noted that the appellant had been suspended, for a time without pay but that changed, and at the date of the decision it was said he had been without pay for almost seven months: . This must have been regarded as relevant, as the Tribunal set aside the dismissal, and substituted a suspension for six months, which was backdated to the date of dismissal.
- Reference was made in that case to the decision in DA v Stewart  QCATA 359, where a decision to dismiss was confirmed by the Tribunal after it set aside the adverse finding on one of six matters, but on appeal three more were set aside, as was the dismissal, replaced by a suspension for six months from the date of the original order. This decision was set aside by the Court of Appeal, which remitted the matter to the Appeal Tribunal. On the three remaining charges it imposed a suspension for eighteen months from the date of the original dismissal. The Appeal Tribunal took into account the period the appellant had been off the force , and that he had not sought reinstatement after the initial favourable appeal: .
- In Harvie v Stewart  QCAT 388, the Tribunal set aside the decision of the respondent in relation to two of three matters, holding that they were not substantiated. The sanction of dismissal imposed by the respondent was also set aside, and the Tribunal substituted a sanction of suspension for three months, backdated to commence on the date of the decision to dismiss the applicant from the service. The Tribunal took into account the financial loss suffered by the applicant as a result of his having been stood down from active service about two and a half years earlier, which was said to have delayed his progress to a higher paypoint, and caused him to lose the chance of promotion: . He would also have lost income in the form of shift allowances: .
- The Tribunal was critical of the delay in that matter , and noted the good service record of the applicant: . The Tribunal regarded a reduction in rank as excessive because of its severe impact, and a fine or reprimand as inadequate, and imposed the backdated suspension: . The circumstances in that matter were quite different from those of the present, but the structure of the replacement sanction imposed is relevant. I have not been referred to any case where a sanction of dismissal was set aside on review or appeal where a substitute sanction other than a backdated suspension was imposed. It has evidently been seen in such matters as an appropriate course to adopt.
- In the present case, the relevant conduct was quite inappropriate, particularly for a police officer, although it did not occur in the course of the performance of the appellant’s police duties, and did not involve any harm to the public. It did involve a serious breach of discipline, and put at risk public confidence in the police service, although hopefully the behaviour of this one officer on one occasion would not have done too much damage to public confidence in general. On the other hand, his psychiatric problems are relevant, and reduce the significance of general deterrence in particular, and in the circumstances I do not expect personal deterrence to be a matter of importance. His career and his life have been disrupted over a particular long period, and he has suffered significant, although unascertainable, adverse financial consequences, and will continue to suffer damage to his career.
- On the question of sanction I was referred by the appellant to three decisions of the Tribunal or Appellate Tribunal: McKenzie v Wright  QCATA 309, Hetherington v Assistant Commissioner  QCAT 82 and Watson-Paul v Dunn  QCATA 245. The first two cases however involve conduct which was so different from the conduct here that I consider that they are of no real assistance, and indeed did not support the sanction for which the appellant contended. The third had some features in common, but the decision of the Appeal Tribunal did not involve the question of sanction, and it appears that both there and before the Tribunal the only issue was substantiation. It therefore also provides little guidance.
- In all the circumstances, and after considering other possible sanctions available under the Act, I consider that the purposes of disciplinary proceedings will be best met by imposing a sanction of suspension of the appellant from Police Service duties without pay for a period of eight months, to be backdated to the date of the decision of the respondent to dismiss him from the Police Service, 19 February 2016.
- The appellant also submitted that the sanction should itself be suspended for a period, bearing in mind the various mitigating factors. There is a power to suspend a disciplinary order under the Crime and Corruption Act 2001 (Qld) s 219L, as it then was. Unlike under earlier legislation, the suspension is not required to be conditioned on the performance of community service or undertaking particular courses of study, or something else of that nature, but should be conditional on the absence of further misconduct during a particular period.
- An order for suspension can be made if the Appeal Tribunal considers it appropriate to do so in the circumstances. It is not necessary to show special or exceptional circumstances before such an order will be made, although the various decisions which I have seen suggest that such orders are relatively unusual. In Flegg v Crime and Misconduct Commission  QCA 42, the appellant was demoted from Sergeant to Senior Constable for a period of two years, but that sanction was suspended for two years on condition that he undertook specified courses. On appeal, the Court held that the decision of the Tribunal confirming that suspension was one reasonably open to the Tribunal, in view of the mitigating circumstances found by it.
- In that case the appellant, a sergeant in charge of a Water Police unit, had been recalled to duty after working a shift to coordinate a search and rescue mission for a vessel lost in poor visibility in the Torres Straight. Later he was told that the vessel was sinking, but did not advise the relevant authority of this for some hours. In the event the vessel was lost with all five people on board. The mitigating factors identified were that his judgment was likely to have been impaired by fatigue, that he was proceeding under the reasonable assumption that the vessel was seaworthy, he was overtasked in working alone and not offered any relief, that there had been extraordinary delay in finalising the disciplinary proceedings, with its adverse effect on his career, his good service record and exemplary conduct since the incident, the financial impact on him, his acceptance of the charge and his insight into his failings.
- The Court said that the discretionary power to suspend a sanction was a broad one  and that a suspended sanction was a sanction, drawing an analogy with a suspended sentence of imprisonment: . Although the relevant conduct continued over a period of some hours, and had had very significant consequences, it did not involve deliberate wrongdoing, and there were strong mitigating circumstances. Hence the decision to suspend was rationally open.
- I was also referred to the decision in Compton v Stewart  QCAT 384. The officer had been dismissed from the Police Service after a conviction for drink driving, when he was substantially over the limit, but not on duty. He appealed against the sanction, and the Tribunal ordered that the dismissal be suspended for a period of two years, on condition that he not commit an act of misconduct, perform community service and undergo counselling treatment or attend a programme as directed. As well, he was reduced one pay point for two years from the date of the respondent’s decision.
- The Hon J B Thomas QC, who constituted the Tribunal, said that there was an unusually strong combination of mitigating factors: . The officer had cooperated with the investigation, not contested the charge and expressed remorse. He had at the time been facing a number of personal difficulties which were stressful, and presented a report by a psychologist who regarded him as suitable for the service. He had had otherwise a good record, before and after this incident. As well, a circular by the Commissioner, giving indicative disciplinary penalties for drink driving offences by officers, did not support dismissal in his circumstances. Accordingly a sanction similar to demotion was formulated: . The approach of the Court in Spencer v Baulch (supra) was noted. It was said that the combination of orders would inflict a considerable burden which was sufficient to provide general deterrence to others: .
- Although the delay in this matter is understandable, it remains the case that it has been very disruptive to his career in the police force, and productive of considerable financial loss to him, whatever follows from the setting aside of the dismissal. In view of that, and of the mitigating circumstances referred to above, and bearing in mind the content of the relevant conduct, I consider that in this case it is appropriate to exercise the discretion to suspend the sanction, on the condition that, for a period of two years from the return of the appellant to police duties, the appellant not commit any act of misconduct. If any act of misconduct is committed during that period, the suspension of the sanction is revoked, and the suspension of the appellant from the Queensland Police Service has immediate effect.
- Accordingly the decision of the Appeal Tribunal is that:
- The sanction imposed by the Tribunal on 11 October 2019 be set aside.
- In its place, it is ordered that the appellant be suspended without pay from duty with the Queensland Police Service for a period of eight months, to take effect as from 19 February 2016.
- That sanction of suspension is itself suspended, pursuant to the Crime and Corruption Act 2001 (Qld) s 219L, for a period of two years from the date on which the appellant returns to duties with the Queensland Police Service, on condition that, during that period, the appellant not commit any act of misconduct.
- If during that period of two years the appellant commits any act of misconduct, the suspension is revoked and the suspension of the appellant from the Queensland Police Service has immediate effect.
- If the appellant seeks any order for costs, he must file in the Tribunal and serve on the respondent submissions in writing in support of the order sought within twenty-one days from the date of this decision.
- If such submissions are served on the respondent, the respondent may file and serve submissions in response within twenty-one days from the date of receipt of such submissions.
- Any submissions in reply are to be filed and served within fourteen days of the service of the submissions in response.
Appeal Book Vol 7 P16.
Appeal Book Vol 7 P15.
Appeal Book Vol 7 D114, at .
DA v Stewart (No 2)  QCATA 162 at , .
Appeal Book Vol 7 P7. The particulars also recorded that he later pleaded guilty to a charge of obstructing police, and was fined $400 by a Magistrate critical of his behaviour.
The jury had to be brought in, and to have their names called over by the associate, before the first verdict was taken. It and the second were “guilty”, and after the second the appellant first used inappropriate and offensive language: Appeal Book Vol 3 pp 1463 – 1467.
In 23 years nothing remotely like that happened before me, nor do I recall ever hearing of such a case.
Appeal Book Vol 7 P173. Report dated 26 February 2014.
Three times in June and August 2009, on 30 April 2010, and twice in November 2013.
Appeal Book Vol 7 P16, quoted in Respondent’s Outline of Submissions para 16.
DA v Stewart (No 2)  QCATA 162 at ; Austin v Martin  QCAT 120 at  – ; Flanagan v Gee  QCAT 204 at . I discussed the authorities dealing with this topic in a range of occupational areas in LCK v Health Ombudsman  QCAT 316 at  – .
Kennedy v Stewart  QCAT 66 at ; DA v Stewart (No 2)  QCATA 162 at .
Police Service Board v Morris (1985) 156 CLR 397 at 412. See also Aldrich v Ross (supra) at ; Crime and Corruption Commission v Dawson  QCAT 37 at ; Flegg v Crime and Misconduct Commission  QCA 42 at  per McMurdo P; JXR v Gollschewski  QCATA 55 at .
Stewart v Dark (supra) at .
 He had previously spent five days in a watchhouse after his bail was revoked, and following his conviction spent 246 days in prison: Appeal Book Vol 7 P175.
The service history is relevant: Kennedy v Stewart (supra) at ; Kennedy v Stewart  QCATA 258 at .
Common enough in police disciplinary matters: McKenzie v Wright  QCATA 309 at  – .
At . The sanction was not itself suspended. The Tribunal decision was about 12 months from the date of dismissal. Appeals by both parties were dismissed:  QCATA 258.
Stewart v Dark  QCA 228.
DA v Stewart (No 2)  QCATA 162.
Police Service Administration Act 1990 (Qld) s 7.4.
Spencer v Baulch  QCA 234.
By majority; McMurdo P dissenting would have removed the suspension, because of the seriousness of the relevant breach and its consequences.
Flegg v Crime and Misconduct Commission  QCA 42 at , .
- Published Case Name:
OP v Gollschewski (No 2)
- Shortened Case Name:
OP v Gollschewski (No 2)
 QCATA 45
Member D J McGill SC
20 Apr 2021