Heuston v Horton

Hetherington v Assistant Commissioner [2011] QCAT 82

McKenzie v Wright [2011] QCATA 309

Willmott v Carless [2024] QCA 115

S A McLeod KC instructed by the Queensland Police Service Solicitor

• [1] This is in form the second part of a review by the Tribunal of certain disciplinary action taken against the applicant, a serving police officer, by the respondent.[1] On 14 May 2021 the respondent, then Acting Assistant Commissioner, made two disciplinary findings against the applicant pursuant to Part 7 of the Police Service Administration Act 1990 (Qld). After receiving submissions as to sanction, on 2 July 2021 the respondent imposed the following sanctions on the applicant:

(a) Demotion from Senior Constable pay point 2.10 to Constable pay point 1.6.

(b) After twelve months to be eligible to return to Senior Constable pay point 2.10 upon the successful completion of one performance development agreement.

• [2] The respondent also implemented a professional development strategy, in addition to the sanction, but not as part of it. This was to ensure the applicant's development of knowledge and skill, to prevent a reoccurrence of similar conduct, and involved a period of six months mentoring with close supervision during which he was not to perform higher duties, and was to complete two specified QPS learning products. He was advised that the sanction and the strategy would form part of his disciplinary history and might be taken into account in the future, including when deciding his suitability to be or to continue to be a police officer, including one of a particular rank.
• [3] On 2 August 2021 the applicant filed in the Tribunal an application to review those decisions. A police disciplinary decision is subject to review by the Tribunal under the Crime and Corruption Act 2001 (Qld) s 219Q. Although described as a review, this has been held by the Court of Appeal to be in substance an appeal by way of rehearing, on the evidence before the decision maker, and any fresh evidence admitted under s 219Q(2): Willmott v Carless [2024] QCA 115. In that matter, it was held (at [40]) that s 219Q displaced the Queensland Civil and Administrative Tribunal Act (2009) (Qld) s 20, and that as a result it was necessary for the applicant to show some legal, factual or discretionary error before the reviewing Tribunal could interfere: [43].[2] It follows that the review of the sanction imposed becomes a process similar to an appeal against sentence in a criminal matter, except that it is necessary to apply protective sanctioning principles instead of sentencing principles. Because the selection of a particular sanction is a matter of discretion, it is necessary for the applicant to show that the respondent's discretion miscarried, through some legal factual or discretionary error.
• [4] I assume that the sanction took effect, so that the period of demotion has long since been completed, and that the professional development strategy was duly completed. The review was heard first as to the challenge to the findings that the two allegations were sustained. On 28 October 2024, for reasons I then published, I confirmed the decision of the respondent that the two matters were substantiated. Subsequently the review of the sanction imposed was heard.
• [5] The factual background is set out in some detail in my earlier reasons. I will not repeat what I said there.

• [6] The applicant sought to put before the Tribunal on the review three items of evidence which had not been before the respondent. First was a report of a forensic accountant, analysing the financial implications of the sanction imposed by the respondent, which showed a financial loss from the demotion calculated with greater precision than the one put in submissions before the respondent. This however was not based on actual figures for the earnings of the applicant during the period of the demotion, and seems to me to have been something which could have been put before the respondent.[3] As well, it did not take into account the effect of overtime or the effect of night shift allowance, so it still did not give an accurate estimate of the actual financial loss. In addition, it does not produce a result which was very different from the financial consequences of the demotion assumed by the respondent.[4]
• [7] The applicant referred to the decision of the Appeal Tribunal in McKenzie v Wright [2011] QCATA 309 where the Tribunal was faced with widely differing estimates of the financial consequences of a similar reduction, in that case from sergeant to senior constable, so that the best it could say is that the effect would be a financial loss of between $14,000 and $30,000: [48]. Not surprisingly in such circumstances, the Tribunal said at [47]:

We suggest that the parties should, in future matters, if necessary with the assistance of a forensic accountant, provide details that give an indication of the probable ultimate financial loss suffered by a police officer through reduction of specific paypoints for specific periods.

• [8] In the present matter there was no similar dispute between the parties as to the financial consequences of the reduction. The Tribunal in McKenzie also said at [46] that "it is almost impossible to project losses accurately because there are so many variables including tax and superannuation, with the further complication of midyear incremental adjustments." This is a significant aspect of the difficulty in providing an accurate estimate of the financial effect of a specific demotion for a specific period. Apart from changes in base salary and regular allowances, there are also likely to be changes in other things, such as overtime, including perhaps access to overtime, which may vary depending on the willingness of a particular officer to work overtime. There may be other factors, such as where the officer is posted, which affect remuneration.
• [9] I strongly suspect that, even with the assistance of a forensic accountant, the hunt for a precise and reliable figure as to the economic consequences of a particular demotion is likely to be an exercise in futility. And that is without taking into account what might be described as consequential effects, such as the loss of promotion opportunities. Apart from any inability to pursue promotion during the actual period of demotion, there is the prospect that having such a matter on his record will have a lasting adverse effect on his prospects of promotion in the future.
• [10] I doubt whether this report is really of great significance, at least in a matter where there is no great disparity between the parties as to the financial effect of the demotion. However, as I understand the position, the respondent did not oppose the grant of leave to receive this report as fresh evidence, and in those circumstances I will admit it.
• [11] The second item was a reference by a fellow police officer, who spoke well of the applicant. The particular officer concerned had already provided a reference which was before the respondent, although it was said that this reference had been updated, and provided additional information on the rehabilitation of the applicant. To some extent it does, although I do not regard the additional content of this updating as a matter of great significance in itself. On the face of it, the applicant remains a committed and conscientious police officer. Again, the respondent did not oppose the grant of leave in respect of this piece of evidence, and I will receive it.
• [12] The third item was evidence that the applicant had, since the disciplinary proceeding against him, missed out on a specific promotion which, it was submitted, he would probably have obtained if it had not been for the proceeding. A letter to him, advising that, although he was the preferred candidate for the vacancy, he was to show cause why he should not be debarred from the promotion in the light of his disciplinary history, was sent dated 16 August 2021, the month after the decision of the respondent as to sanction was made.[5] This was material not available to be put before the respondent. It was submitted that it was relevant to the significance of the financial penalty of the sanction, if the point of comparison was a more senior position than that held by the applicant at the time of the sanction. This returns to the point made earlier, about the essentially unknowable financial implications of the demotion.
• [13] The adverse effect on prospects for promotion is likely to apply regardless of the extent and duration of any temporary demotion, and arises from the fact that there has been a disciplinary finding of dishonesty made against him. I am also conscious that it was not the only matter raised in relation to this application for promotion, but I consider that there is some force in the applicant's proposition if the effect of this evidence is that it demonstrates that the financial consequences of the sanction are greater than the respondent would have contemplated, because the relevant point of comparison is not the unsanctioned salary of the applicant as a senior constable, but, probably, the salary of a sergeant.
• [14] The power to admit additional evidence on the review comes from the Crime and Corruption Act s 2001 s 219Q(2). Section 219Q provides:

(1) A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).

(2) However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied -

(a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or

(b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.

(3) If QCAT gives leave under subsection (2), the review is -

(a) by way of rehearing on the original evidence; and

(b) on the new evidence adduced.

• [15] Since this evidence relates to events after the decision was made, it was not known to the applicant, nor could he be reasonably expected to have known of it. In those circumstances, it falls within s 219H(2)(a). It is not necessary for the applicant to show special circumstances, but it is still necessary for the Tribunal to give leave for the evidence to be received. When events occur relevant to punishment (or indeed, to the assessment of damages, after a trial but before an appeal by way of rehearing) there are two conflicting principles involved. One is the public interest in the finality of litigation.[6] The other is the principle that a court does not guess when it can know. This can produce some lack of clarity as to the approach. In the 11th Edition of Cairns, Australian Civil Procedure (2016) p 773[7] two successive sentences read:

Of course the nature of an appeal by way of rehearing is that the appellate court is entitled to consider matters which occur after judgment. Evidence of matters that occur after the trial is admitted on appeal on only slightly more generous grounds [than for evidence of matters that occurred before the trial].

• [16] I note that in Willmott v Carless (supra) the Court said at [41]:

One qualification to the rehearing under s 219Q being dependent on error in the decision of the original decision-maker is the circumstance where leave is given pursuant to s 219Q(2) to adduce fresh, additional or substituted evidence. Where there was otherwise no error asserted in the original decision, the review undertaken pursuant to s 219Q(3), where leave to adduce new evidence is given, is effectively on the basis of whether the new evidence would have altered the decision of the original decision-maker.

• [17] That approach suggests that, in considering whether to give leave to receive new evidence of events that occurred after the hearing, the major consideration is the potential of the additional evidence to affect the appropriateness of the sanction imposed. I should add that there is no reason to doubt that the evidence in question is entirely credible. The respondent opposed the admission of this evidence, on the basis, in effect, that the promotion was always subject to satisfactory vetting, and because the finding of dishonesty would have been the significant factor rather than the sanction imposed. That is true, but I consider that that approach overlooks the financial consequences of the sanction to the applicant. That has been regarded as a relevant factor in reviews of sanctions imposed in disciplinary proceedings against police, and what matters is the quantification of that loss.
• [18] The report of the forensic accountant which was tendered by the applicant has as appendix 1 a table of Police Officer salary rates, which include Senior Constable 2.10 and Sergeant 3.1. As I read the table, they were at all relevant times the same, and that was confirmed by the report at page 3. Accordingly it appears, somewhat to my surprise, that in terms of base salary he would have been no better off financially had he been given the promotion. It follows that the financial significance of the sanction imposed would not have been affected, at least in the short term. Of course, the disciplinary finding in itself is likely to have a continuing adverse effect on the prospects of the applicant for promotion, but that factor would have been obvious enough to the respondent, and there is no reason to think it would not have been taken into account in determining the sanction. In those circumstances, I consider there is no good reason to give leave to tender this third category of evidence.

• [19] In submissions the applicant did not identify any specific error of law or fact in the reasons for decision of the respondent, and relied on the ground that the sanction imposed was manifestly excessive. It was submitted that this was far from the most serious example of misconduct by a police officer, and that the financial consequences of the demotion were sufficient to make that penalty excessive. Up to 2019 the possible sanction of a fine was limited to two penalty units, but that year it was increased to 50 penalty units, the amount of which escalates with inflation.
• [20] The Police Service Administration Act 1990 (Qld) s 7.1 provides that the purposes of Part 7, dealing with the disciplinary processes, are:

(a) to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and

(b) to ensure appropriate standards of discipline are maintained within the service to -

(i) protect the public; and

(ii) uphold ethical standards within the service; and

(iii) promote and maintain public confidence, and officers' confidence, in the service.

• [21] It was submitted that the purposes of the discipline system did not include to be punitive, and that, because of the size of the financial detriment imposed on the applicant, this sanction was punitive. That is so, but the fact that, for serious misconduct, a substantial sanction is imposed, the effect of which is punitive from the point of view of the officer concerned, does not mean that the sanction has not been imposed for a proper purpose. The ultimate sanction is dismissal, but if the officer has engaged in conduct which makes him or her unfit to be a police officer, that is appropriate despite the consequences for the officer.
• [22] It was submitted that in this case adequate deterrence could be achieved by a large fine, so that actual demotion was a step too far. There would also be an ongoing effect on the applicant's police career. It was also submitted that the fact that he had contested the issue of substantiation should not be regarded as an aggravating feature for the purpose of sanction. Reference was made to McKenzie v Wright [2011] QCATA 309, where the significance of contesting the charge was discussed at [20] - [25]. It was said that there was no error by the Tribunal in describing the fact that the officer defended the proceedings as a relevant factor, while noting that he had a legal right to do so. The joint judgment said that "a plea of guilty or early acceptance of responsibility is always capable of being a relevant factor ... because it can signify remorse and acceptance of responsibility."
• [23] The judgment went on however to express reluctance to see the system of measurable discounts for pleas of guilty in the criminal justice system transposed into the disciplinary process, because the range of types of misconduct are legion and where every officer "ought to be able to challenge a charge without the fear of additional penalty if he or she does so." So, it is not a circumstance of aggravation, but it may well show remorse and responsibility, which can be "very significant and influential factors." Of course, in the case of criminal trials with a jury there is the factor, not often discussed, that a plea of guilty means giving up the prospect of an acquittal on the basis that some juries just will not convict, for whatever reason, despite the strength of the prosecution case.
• [24] It may be that some doubt has been cast on this approach by the decision of the Court of Appeal in Health Ombudsman v Harirchian [2021] QCA 141. That case concerned the review of "immediate action" pending disciplinary proceedings against a medical practitioner who had been convicted by a jury of an offence of sexual assault against a patient, and who had served his sentence of imprisonment. The practitioner had abandoned an appeal to the Court of Appeal, but continued to deny that he had committed the offence, a factor which at first instance I regarded as irrelevant. The Court rejected that approach, saying at [16]:

It was erroneous to consider that the respondent's refusal to admit his offending was immaterial because "in the context of the criminal law a failure [to admit committing an offence] has never been regarded as an aggravating circumstance". A refusal to admit proven wrongdoing is not "the absence of a mitigating factor". Mitigation is irrelevant because punishment is not under consideration. In disciplinary proceedings the failure of a practitioner to admit proven wrongdoing may constitute an extremely significant fact if it shows the practitioner's lack of the insight that is necessary for the practitioner to be regarded as a fit and proper person to continue in practice.

• [25] The case is distinguishable of course because here the disciplinary process was not based on a prior finding of a criminal court, and the facts and nature of the proceeding were quite different. I do not consider that the approach in McKenzie has been impliedly overruled by the decision, although some parts of the passage quoted do make me wonder to what extent, if at all, it has wider significance for the approach to disciplinary proceedings generally.
• [26] The respondent, in reasons for the sanction, noted that the applicant had accepted that the conduct in question had been proved to the required standard, and acknowledged the shame such conduct brings and the questions it raises with regard to his integrity. He went on to say that it was impossible to overlook that he was afforded the opportunity to acknowledge the conduct on three occasions in the investigation, and he failed to do so despite the overwhelming evidence presented. This was said to have fallen well below the conduct expected of any officer, let alone one of his experience and length of service, and demonstrated a distinct lack of integrity and insight. He added that, except for the final submission, the applicant had not shown any remorse or insight into his behaviour.
• [27] It must be borne in mind that the response of the applicant during the investigation was covered by Matter 2 alleged against him, and hence was necessarily relevant to the seriousness of the misconduct. It was correct that the applicant had shown no remorse or insight into his behaviour at an earlier stage. I do not consider that these remarks show that the respondent treated the fact that the applicant contested the disciplinary process as an aggravating factor, and do not consider that they are inconsistent with the approach laid down in McKenzie. It follows that no error of law or fact is shown in relation to the approach of the respondent in this respect.
• [28] There was some discussion about the respondent's consideration of an entry in the applicant's service record, that in December 2019 an issue of honesty in relation to an application was dealt with by a Local Management Resolution agreed to by the applicant. This involved an allegation of dishonesty in professional conduct, and was resolved by agreement requiring the applicant to undertake a management strategy to improve "quality reporting in position applications" within a short time frame.[8] The respondent in his reasons accepted that there was no formal finding of fault in relation to the allegations, but regarded the fact that the management plan had been implemented about three months before the conduct in Matter 1 as aggravating the serious of the conduct, because the implementation of that plan should have prevented a recurrence of "like conduct" and had not done so.
• [29] I consider that it can properly be regarded as an aggravating circumstance that the applicant had, shortly beforehand, completed a local management plan directed to the importance of accuracy and honesty in completing an application for promotion, so that the importance of this should have been fresh in his mind at the relevant time.[9] I also consider that that was what the respondent had in mind, bearing in mind that he had also referred to the applicant's submission that no formal finding of fault had occurred in relation to the earlier complaint. There may have been some unfortunate language in using an expression which suggested that the earlier conduct had involved dishonesty, but there is plenty of authority that reasons for administrative decisions, particularly those not prepared by lawyers, should not be scrutinised too closely with a view to finding error. I am not persuaded that this shows any error of law on the part of the respondent.
• [30] The applicant also submitted that the reasons of the respondent did not have proper regard to the delay in the proceedings before the respondent. This had been delayed to some extent by a decision of the Court of Appeal which exposed a technical deficiency in the process of police disciplinary proceedings, which seems to have required them all to start again. Any other delay was associated with the length of time taken in the investigation, which involved gathering a good deal of evidence. Overall I am not persuaded that the respondent dealt inappropriately with delay up until his decision. There has of course been a good deal more delay sine then, partly associated with the decision in in Willmott v Carless (supra), and partly because of general delay in the Tribunal, but that does not show any error on the part of the respondent.

• [31] The respondent submitted that the penalty was not manifestly excessive, in view of the serious nature of the conduct, the importance of deterrence and the importance of maintaining proper standards and public confidence in the police service. The respondent had been aware of the significance of the financial impact on the applicant, but the purpose of the sanction was protective in nature, and did not involve any exercise in punishment. It was important that the public, and other police, be able to trust what was said by a police officer. Demotions had been often imposed in the past in other matters, and there was an element of expertise in the respondent as to the conditions in and the significance of misconduct within the police service, so that an exercise of his discretion should not be lightly interfered with.

• [32] A number of earlier decisions of the Tribunal were referred to during submissions. McKenzie (supra) was a case where the officer had engaged in domestic violence to another officer with whom he had been in a relationship. It is not necessary to detail the conduct, which was described at [16] as clearly excessive and inappropriate, which resulted in a demotion from sergeant 3.5 to senior constable 2.9 for a period of two years, confirmed on review by the Tribunal, but on appeal was reduced from two years to one year. This was on the basis that the penalty was excessive in the light of comparable decisions, the Appeal Tribunal concluding at [49]:

The effect of demotion must be recognised as very severe. Apart from the disgrace associated with it, the demotion is accompanied by what is on any view a serious financial sanction.

• [33] In the course of its reasons the Appeal Tribunal referred to two internal decisions involving excessive force during arrests, which were said by the Tribunal to have been too low. The decision said to offer the best guidance was Hetherington v Assistant Commissioner [2011] QCAT 82, where a reduction from sergeant 3.5 to senior constable 2.9 for one year was imposed for a drunken invasion of a hotel by an off duty officer who used his police badge to gain admittance, and resisted other police when they attended. Other cases resulting in demotion mentioned included breaches of pursuit policy resulting in a reduction of two pay points for nine months and two years,[10] and a reduction of two pay points for twelve months for a nude run.[11]
• [34] More recent decisions include Swenson and others v Hopkins [2015] QCAT 441, where three officers on duty in uniform at Fortitude Valley during a festival were involved in an incident where a constable accepted an invitation to be photographed with a young woman who offered to display her newly acquired breast implants.[12] This was described as a breach of proper decorum and common sense, and a sergeant received a reduction of two pay points for six months, and more junior officers, one pay point for nine months. The decision said that a fourth officer involved had his advancement to the next pay point delayed for twelve months, and the decision turned largely on the need for parity in the penalties imposed for co-offenders.

• [35] No decisions were cited to me which contained reasonably comparable conduct. Cases involving comparable suspensions were McKenzie and Heatherington, both of which involved serious misconduct and, to some extent, the abuse of the officer's position as a police officer.[13] Both resulted in demotion for twelve months. The conduct in the present case also amounted to serious misconduct, of a kind which certainly justified a salutary sanction because of the importance of deterrence, and of the maintenance of standards in the service. I note that in McKenzie the Appeal Tribunal, when hearing an appeal, acknowledged at [42] the continuing significance of the approach in Aldrich v Ross [2000] QCA 501; [2001] 2 Qd R 235, despite the fact that the function of the Tribunal had then become to set standards in this area; that situation has now been changed as a result of legislative changes and the decision in Willmott v Carless (supra).
• [36] I do not consider that it can be said that there was any error in imposing a demotion for a period, rather than a substantial fine, an option which prior to 2019 was not available in police disciplinary matters. It may be that, for less serious matters, in the future a fine rather than a demotion would be more appropriate, although I note the comments in McKenzie at [38] about demotion. In the present case, I am not persuaded that demotion rather than a fine was outside the range of appropriate sanctions to be imposed on the applicant in the circumstances. In the light of the other decisions I have mentioned, I am also not persuaded that the extent and duration of the demotion were outside the range of the legitimate discretion of the respondent in imposing a sanction. Broadly speaking, I agree with the reasons of the respondent, and the submissions advanced on his behalf.
• [37] As a result, on the review the decision of the respondent as to sanction dated 2 July 2021 is confirmed. The respondent did not seek an order for costs in submissions, and I will make no order as to costs.

[1] For my convenience I shall refer to Senior Constable Heuston as the applicant and to Chief Superintendent Horton as the respondent.

[2] As a result a decision of the Tribunal that did not adopt that approach has been set aside, and the matter remitted for re-hearing: ABC v Assistant Commissioner Carless [2024] QCATA 75.

[3] It was submitted that there was no way to predict the sanction imposed, but in the respondent's decision on substantiation at para [60] a proposed sanction was set out, and the following month the applicant made submissions and submitted evidence in relation to sanction. This was in accordance with the Police Service Administration Act 1990 (Qld) s 7.28(2)(c).

[4] The submissions as to sanction to the respondent gave an estimate of the financial detriment to the applicant of $21,892.53 (para 23) compared to the figure of $25,298.14 in the report.

[5] In the event he was passed over for the position.

[6] See Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 292,3, where the Court of Appeal refused to admit evidence in a personal injuries case that the plaintiff had died after the trial judgment. At p 296 it was said to be a matter of discretion and degree. This decision was followed in Ant Properties Pty Ltd v Brooks [2019] QCA 259 at [70].

[7] They still appear in the 12th Edition, 2020, p 870 para [19.330].

[8] Section 21(2) documents p 1.

[9] Ultimately, the lawyer for the applicant did not dispute this proposition.

[10] CMC v Barnett and Eaton [2011] QCAT 161; CMC v Chapman [2011] QCAT 530.

[11] Murray v Stewart (OCR237-10, 19/9/21.)

[12] As it was put at [7], although I expect what was displayed was the effect of the implants.

[13] In McKenzie, in having access to police handcuffs.