QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Crime and Corruption Commission v Assistant Commissioner Carless & Ors [2022] QCAT 77	
PARTIES:	crime and corruption commission 	
	(applicant)	
	v	
	assistant commissioner carless	
	(first respondent)	
	sergeant austin 	
	(Second respondent)	
APPLICATION NO/S:	OCR294-20	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	10 March 2022	
HEARING DATE:	14 July 2021	
HEARD AT:	Brisbane	
DECISION OF:	A/Senior Member Traves	
ORDERS:	1.	The decision of Assistant Commissioner Carless of 24 August 2020 sanctioning the second respondent is amended by imposing a reduction in rank of sergeant pay-point 3.7 to senior constable pay-point 2.10 for 12 months, not suspended (with reversion to substantive sergeant pay-point at the completion of the suspension period).  
2.	Until further order, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld):
(a)	publication of the contents of a document or thing filed in or produced to the Tribunal; or
(b)	evidence given before the Tribunal and any order made or reasons given by the Tribunal; 
is prohibited to the extent it can identify or lead to identification of any third party, save as is necessary for the parties to engage in, and progress the proceedings.	
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where review of sanction – purpose of disciplinary system - where second respondent present when Taser deployed on a person who was handcuffed – where second respondent assisted the officer responsible to make false and misleading report of the incident – where second respondent wrote a false and misleading email to senior officers about the incident – where second respondent made untruthful statements in an interview about the incident
Crime and Corruption Act 2001 (Qld), s 219P, s 219Q
Police Service Administration Act 1990 (Qld), s 7.1, s 7.35
Police Service Discipline Regulations 1990 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 24
Aldrich v Ross [2001] 2 Qd R 235
BJB v Acting Deputy Commissioner Wright [2021] QCAT  
Chadwick v Acting Deputy Commissioner DA Wright [2020] QCAT 66
Crime and Corruption Commission v Acting Commissioner Barron and Miers [2015] QCAT 96
Crime and Corruption Commission v Taylor and Shepherd [2018] QCAT 
Deputy Commissioner Stewart v Dark [2012] QCA 228 Gunter v Assistant Commissioner Wilkins [2021] QCA 274
VG v Deputy Commissioner Barnett [2013] QCAT 449
Re Bowen (1996) 2 QdR 8
Wadham v Deputy Commissioner Ian Stewart [2010] QCAT 578	
APPEARANCES & REPRESENTATION:		
Applicant:	Ms Z Valeska	
First respondent:	Mr I Fraser, QPS Legal Unit	
Second respondent:	Mr T Schmidt, counsel	

REASONS FOR DECISION
[1]	The Crime and Corruption Commission, has applied, pursuant to s 219P(1) of the Crime and Corruption Act 2001 (Qld) (CC Act) to review the decision of 24 August 2020 by Assistant Commissioner Carless, that imposed a sanction on Sergeant Austin in respect of a police disciplinary matter.
[2]	The disciplinary matter related to the Sergeant’s conduct on 22 September 2019 and 23 March 2020, as particularised below. The sanction imposed was a demotion of rank from sergeant pay-point 3.7 to senior constable pay-point 2.10 for 12 months, suspended after three months, and 20 hours community service.
[3]	The Commission seeks a review on the basis that the sanction imposed was inadequate. The Commission’s position is that Sergeant Austin’s conduct in general and particularly his provision of false and misleading information to senior officers and untruthfulness during a disciplinary investigation, renders him unfit to continue at the rank of Sergeant. Accordingly, that a sanction of a permanent demotion is the correct and preferable decision.
[4]	Sections 219P and 219Q of the CC Act and sections 17 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) oblige the Tribunal on review to make the correct and preferable decision based on the evidence which was before the original decision-maker. The review is to proceed ‘by way of rehearing’ on the original evidence and, where leave is given to adduce fresh, additional or substituted evidence, on the new evidence adduced. A review ‘by way of rehearing’ is different from a review on the merits. The Tribunal in conducting such a review has been held to be “constrained in its freedom to interfere with findings of fact which were based upon an assessment of the credit of a witness.”
[5]	It has been held that the Tribunal, in making up its own mind, should afford ‘considerable weight’ to the views of the original decision-maker who ‘might be thought to have particular expertise in the managerial requirements of the police force’. This is particularly appropriate where the evidence upon which the Tribunal acts is essentially the same as the evidence below. That said, it is acknowledged that an external public review provides protection against a wrong or unacceptable decision and permits an outsider’s perspective of the public interest to be taken into account.
[6]	I accept that an assessment by the Tribunal of the appropriate sanction is conducted as at the present time, not as at the time of the commission of the conduct in question. I also accept that sanction should be determined globally by reference to all matters that have been substantiated.
The purpose of disciplinary proceedings 
[7]	The disciplinary framework for the Police Service is contained in Part 7 of the Police Service Administration Act 1990 (Qld) (PSAA). The PSAA was amended by the Police Service Administration (Discipline Reform) and Other Legislation Amendment Acthttps://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/num_act/psaraolaa2019729/ 2019 (Qld) which inserted a new Part 7 dealing with the discipline process for police officers.
[8]	The main purposes of the disciplinary process for police officers are now set out in s 7.1 of the PSAA which provides:
7.1 Main purposes of part
The main purposes of this part 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.
[9]	Section 7.9 of the Act provides that when a complaint is received against an officer that the commissioner must consider whether to impose a professional development strategy. Section 7.35(3) provides that the professional development strategy must be taken into account by a prescribed officer deciding the disciplinary sanction to be imposed on the subject officer. A professional development strategy may include one or more of the following things: mentoring; being subject to closer supervision or additional reporting obligations; internal or external training; counselling; guidance or a temporary reassignment of duties.
[10]	Before a complaint is referred to a prescribed officer, the commissioner is required to consider the matters set out in s 7.10, namely any professional management strategy undertaken; whether implementation of any other professional development strategy would be sufficient to achieve the purposes in s 7.1(b), the officer’s disciplinary history and service history, the seriousness of the relevant conduct and whether it is necessary to take disciplinary action against the subject officer to achieve the purposes mentioned in s 7.1(b).
[11]	The second respondent submits that the discipline system is not punitive in nature and that sanctions are not imposed to punish an officer for wrongdoing, but rather to rehabilitate the officer, although they can be used as a means of deterrence. Further, that a sanction can only now be imposed where it is necessary to do so, and in circumstances where professional development strategies such as guiding, correcting and rehabilitating alone are not sufficient to remedy the misconduct.
[12]	The applicant rejects that submission and refers to the “well-established” purpose of disciplinary proceedings, being the protection of the public, to uphold ethical standards within the Service and to promote and maintain public confidence in the Service. Disciplinary action, which includes demotion, it is submitted, remains a crucial part of maintaining good order and public confidence in the Service.
[13]	The Explanatory Memorandum to the amending legislation explains that the police discipline system has remained functionally unchanged since the inception of the PSAA in 1990 and that one of the areas identified as in need of improvement and modernisation were the ‘outdated sanctions that focus primarily on punitive measures’. The available sanctions were criticised for being limited in scope, inflexible and for not necessarily addressing the cause of any deficiency in behaviour. To redress this a broader range of sanctions were proposed.
[14]	While I accept that there is now an increased emphasis on rehabilitation of officers who have transgressed, the PSAA still recognises that there will be cases where a sanction other than or in addition to strategies geared to rehabilitation, are necessary. 
Application to rely on fresh evidence 
[15]	At the commencement of the hearing the second respondent, Sergeant Austin was granted leave to rely upon fresh evidence. Section 219Q of the CC Act provides that a review hearing before the Tribunal is a rehearing on the evidence before the original decision-maker. However, the Tribunal may give leave to adduce fresh, additional or substituted evidence if the person seeking to adduce it did not know or could not reasonably be expected to know of its existence at the original proceedings and in the special circumstances of the case, where it would be unfair not to allow the person to adduce it. 
[16]	The evidence comprised three affidavits one by Sergeant Austin relating to his professional development, learnings and experiences and work history since the original decision; the second under the hand of Senior Sergeant Rix, who was the officer in charge of the station at Surfers Paradise, regarding his professional observations of Sergeant Austin since the original decision; and the third under the hand of Sergeant Austin’s assigned mentor relating to the mentoring provided and Sergeant Austin’s engagement in that process. The applicant did not oppose the application. I granted leave to rely on the new evidence on the bases Sergeant Austin’s conduct in the intervening period may have affected the sanction imposed on review and was accordingly relevant; and that the evidence related to matters arising after the original decision which could not, therefore, have been known by Sergeant Austin at the time of the original decision.  
Non-publication order 
[17]	The Commission also sought a non-publication order pursuant to s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting the publication of third party particulars, including footage of the arrest that led to the disciplinary matter and other materials filed which could lead to the identification of third parties. I am satisfied it is necessary to make the order on the basis the information is confidential and it would be contrary to the public interest to publish it. 
[18]	Accordingly, I make a non-publication order prohibiting the publication of the contents of a document or thing produced to the Tribunal or evidence given before the Tribunal and any order or Reasons given by the Tribunal, to the extent it can identify or lead to identification of any third party, save as is necessary for the parties to engage in, and progress the proceedings. 
The original decision 
[19]	Sergeant Austin admitted to the following conduct which occurred on 22 September 2019 and 23 March 2020:
Matter One
That on the 22nd say of September 2019 at Surfers Paradise your conduct was improper in that you:
(a)	Failed to exercise appropriate supervision and management at an incident involving the inappropriate use of a Taser; 
(b)	Assisted a subordinate officer enter false and misleading information into the Queensland Police Service computer system to describe the use of force against Ms K;
(c)	Provided false and misleading information to senior officers to justify the use of a Taser against Ms K.
Matter Two 
That on the 23rd day of March 2020 at Gold Coast your conduct was improper in that you were untruthful to a senior officer conducting an inquiry or investigation into a disciplinary complaint.
[20]	On 22 July 2020 the following sanction for both matters was imposed:
You are reprimanded;
I order you be demoted from the rank of sergeant pay-point 3.7 to senior constable pay point 2.10 for twelve months, suspended after three months. You will return to your substantive sergeant pay-point at the completion of the suspension period;
I order you to perform 20 hours community service at a PCYC within six months.
[21]	In addition to the above sanction, the following professional development strategy was imposed:
The imposition of a Professional Development Strategy involving mentoring by a designated Commissioner Officer from Gold Coast District for a period of six months with a focus of ethical leadership and professional practice.
Further background 
[22]	The matters referred to above arose out of the following agreed facts, which I will summarise. 
[23]	The second respondent responded to a disturbance at a nightclub at Surfers Paradise at about 12:20am. He arrested a patron, MK, shortly after she left the club. The second respondent and other police were struggling with MK, trying to get her into the back of the police van. A junior officer approached MK from behind and, without warning to her, issued Taser in drive stun mode to her upper back, just below the base of her neck, causing her to collapse to the ground. At the time the Taser was deployed, MK was handcuffed with her hands behind her back.
[24]	The second respondent knew the junior officer had used his Taser on MK while she was handcuffed. He advised the junior officer immediately after the Tasering to “word up that drive stun…that she had slipped the cuff and her arm was going around…”. 
[25]	Upon returning to the station, the second respondent further discussed the use of the Taser with the junior officer and reiterated that he wasn’t supposed to Taser someone who was handcuffed. The second respondent advised the junior officer to state MK had slipped the handcuffs and to make sure this point was focussed on in the Use of Force Report. The second respondent then authored and sent the junior officer an email containing a precis of the incident which deceptively described MK as waving her arms with the handcuff still attached to her wrist and the Taser having been deployed due to the risk of injury. The second respondent was aware the junior officer entered this information into QPRIME and that it was not an accurate description of events.
[26]	The second respondent then wrote an email to other senior officers which deceptively stated:
•	During this struggle, the offender was waving her arms including her right arm with the handcuff still attached to her wrist and the Taser was deployed due to the risk of injury.
•	Due to the risk of injury that may be inflicted by the offender swinging around the handcuff attached to her right wrist.
•	The deploying officer found that extreme circumstances existed and the only other reasonable option to avoid the imminent risk of injury to officers involved in trying to restrain the offender a taser as deployed in drive stun mode.
•	…footage reviewed by [the second respondent] after the incident. Footage corresponds with the officer’s version of events.
[27]	Later, on 23 March 2020, the second respondent participated in a directed discipline interview. He was untruthful to a senior officer conducting the investigation as indicated by the following:
•	As far as I’m concerned, if she had slipped the cuffs she still had one on, and you really can’t drive, you can’t stun someone who has a cuff on whether it’s both wrists or not as far as I’m concerned…it just doesn’t go with policy and procedure in that regard.
•	Being a previous OST instructor, having been involved, not involved, heard of incidents recently where people have been drive-stunned or Tasered whilst handcuffed, I knew that he was in a world of hurt to put it very bluntly.
[28]	When the second respondent was questioned whether he was attempting to influence the junior officer to enter a false report he said:
•	I wasn’t trying to cover up or influence him. I was just trying to give him some ideas on how he was going to word up his Use of Force report and any subsequent reports…
[29]	When the second respondent was questioned as to whether he was trying to hide poor work practices, he said:
•	I was not intending in any way to mislead or cover up, I know it may seem that but that is not my intention…maybe in damage control made thinking [junior officer] is going to be in a world of poo, maybe I was trying to assist him in some ways, but it was not my intention to cover anything up or openly to lie or straight faced lie.
The parties’ submissions 
Crime and Corruption Commission submissions 
[30]	The applicant challenges the adequacy of the sanction imposed. The applicant’s position is that Sergeant Austin’s conduct in general, and particularly his provision of false and misleading information to senior officers and untruthfulness during a disciplinary investigation, renders him unfit to continue at his present rank. Accordingly, that a sanction of demotion is the correct and preferable decision.
[31]	The applicant submitted that the sanction imposed failed to adequately reflect the gravity and seriousness of the misconduct engaged in by the second respondent, particularly in relation to the matters involving integrity. The applicant submits that the second respondent’s dishonesty is central to the determination of sanction, honesty being of fundamental importance for a police officer. It is submitted that the dishonesty was aggravated as it was to a superior officer which can erode public confidence and destroy the trust of other members of the Service. 
[32]	The applicant referred to Chadwick v Acting Deputy Commissioner DA Wright and Wadham v Deputy Commissioner Ian Stewart Queensland Police Service as comparable decisions. In both cases the relevant officers were dismissed. 
[33]	While the applicant accepts that the second respondent showed insight and remorse for his misconduct, it was submitted that he was expected, as a senior officer and role model for younger officers, to be truthful at all times. Instead, it was submitted, he had failed to set a standard for other officers, he influenced and assisted a junior officer to enter false and misleading information into the QPS computer system and failed to take appropriate action as a sergeant of police. Further, that in order to ensure an officer’s use of force is limited to that which is reasonable and necessary, it was crucial that incidents of force be reviewed and scrutinised. The second respondent, knew the use of the Taser was inappropriate and provided a false account to justify its use, thereby diminishing the ability of the QPS to engage in crucial oversight of use of force incidents which ultimately risks the maintenance of public confidence in the Service and increases the vulnerability of those subject to force by preventing an accurate account of the event emerging.
Sergeant Austin’s submissions 
[34]	The second respondent submitted that the sanction of a reprimand and a 12 month demotion, suspended after serving three months, coupled with management strategies, is the correct and preferable decision. Further, that considerable weight should be given to the first respondent’s decision as to sanction, particularly given it was clear from the findings made by the first respondent, that he was entirely cognisant of the need for transparent and accurate reporting of use of force incidents; the impact false and misleading reporting has on accountability and transparency and on public confidence and the significant role of a sergeant including in relation to guiding and modelling ethical behaviour for subordinates. 
[35]	Further, it was submitted that the authorities referred to by the applicant were not comparable in that Chadwick and Wadham involved elements of criminality, including the provision of false sworn statements.
Consideration of the sanction to impose
[36]	The behaviour of the second respondent is very concerning for a number of reasons. 
[37]	It is critical that Use of Force events against members of the public are properly and accurately recorded. It is one thing to Taser a heavily intoxicated person who is uncooperative, difficult to control and abusive towards police but it is another thing entirely to lie about what occurred. Here the lies occurred because the second respondent knew that using a Taser on a person who was handcuffed was not consistent with QPS Taser policy and by reporting that she had only one handcuff on and was waving her arm around, was representing that she was not in that category and, moreover, was at risk of injuring police officers. 
[38]	In fact MK had both hands cuffed together behind her back at the time the Taser was deployed. She was also surrounded by several police officers who were attempting to put her into the back of the police van, including the second respondent. Having viewed the video footage of the incident, the police officers present were not, in my view, at any sensible risk of harm. This is consistent with the findings of the QPS Discipline Investigation Report. Dishonesty in this context raises serious concerns about the ability of the second respondent to uphold standards of integrity when under pressure.
[39]	The second respondent is in a senior leadership role within the police service. It may be assumed that his junior officers look to him for guidance and direction. It is important that in circumstances where the wrong thing is done by police, even assuming it to be in the heat of the moment, that the person with ultimate authority shows leadership and integrity by reporting accurately what occurred and ensuring others do the same. 
[40]	I have been referred to a decision in Chadwick v Acting Deputy Commissioner DA Wright. In Chadwick, the police officer, by destroying evidence of body worn camera footage of an assault by his colleague on a tourist in a dark alley outside a nightclub and otherwise giving false accounts of what occurred, placed the interests of a colleague over his duty to protect the public. However, considered as a whole, the conduct the subject of the deception in Chadwick, was more serious. It involved an alleged serious assault by another officer of a member of the public unobserved by anybody else. The victim of the alleged assault suffered a bilateral fracture of the mandible; a fracture through the left jaw extending to the coronoid process; a fracture of the cheek bone and a fracture of the eye socket. The conduct of the officer in question involved the destruction of evidence by him in the form of the BWC footage of the alleged assault, the officer being untruthful in an interview about the incident and then, some six weeks after the alleged assault, making a statement under oath which was false in material respects.  
[41]	Here the event occurred in full view of the public. There were numerous witnesses, CCTV footage and body worn camera footage. No evidence was destroyed. Nor did the second respondent swear an affidavit which was false. He advised the junior officer who had deployed the Taser how he should ‘word up’ the report, repeated this when they returned to the station after the incident in the early hours of the morning and then sent him an email containing an inaccurate precis of the incident. The second respondent also knew that the junior officer had proceeded to enter the information into QPRIME and that it was not an accurate account of events. The conduct was exacerbated by the second respondent sending by email a similarly inaccurate account to senior officers. Approximately six months later, the second respondent was untruthful in a directed discipline interview with a senior officer by again suggesting the intoxicated patron was only handcuffed on one wrist and, when questioned as to why he thought that would mean the junior officer would be in trouble, that he thought the policy applied whether you had one cuff on or two. 
[42]	The officer in question in Chadwick was dismissed. I do not consider this case to be as serious as Chadwick, although I accept that there was, to some extent, an attempt to misrepresent or distort the truth where a member of the public had been inappropriately tasered. 
[43]	The second case put to me and said by the applicant to be comparable, was Wadham v Deputy Commissioner Stewart. The officer there was found to have misappropriated funds from a police social account to her own personal bank account. The matter involved three misconduct matters: the inappropriate utilisation of funds from a police social fund; accessing QPS computer systems assuming the identity of a colleague to complete training on his behalf; and providing false and misleading information regarding the training which resulted in a financial benefit to the colleague. The Deputy Commissioner found the allegations substantiated and ordered her dismissal. Upon review, Ms Wadham challenged the substantiation of the first allegation and the sanction imposed in respect of the other matters. This matter was found to be substantiated upon review and the issue with respect to the remaining matters was whether the sanction of dismissal for that conduct alone was appropriate. The Tribunal found that it was, being conduct of such a serious nature as to erode public confidence in the QPS.
[44]	Again, I do not consider the conduct of Sergeant Austin to be in the same category. Sergeant Austin was not falsifying police records to obtain a pay increase for himself or his partner. He was trying to avoid his junior officer being disciplined for inappropriate use of a Taser, possibly because he felt, as the supervising officer that night, partly to blame. His conduct in sending the email to the junior officer suggesting how to ‘word up’ the report was sent around 1 am after they all returned back to the station. The wording did not deny the Taser had been used but misstated the facts in an attempt to provide some justification for its deployment. There had been instances when the cuffs had been removed to permit MK’s handbag to be removed and even instances where MK had slipped a cuff but it was not an accurate account to say that she had slipped the cuff at the time the Taser was deployed. This was the critical time and Sergeant Austin was sufficiently experienced to know it.
[45]	The misconduct was, however, serious. Entering false use of force reports undermines transparency and accountability in the police service. It fails to protect the person who has been the subject of use of force and who depends upon an accurate report by the witnessing officers and has the potential to lead to an increase in unjustified use of force incidents. Failing to honestly record the incident or suggesting to others that they do so also has the potential to undermine the trust that other officers have in each other and, ultimately, in the police service.  An officer’s colleagues as well as the community should be able to have confidence in his or her integrity.
[46]	The Tribunal has previously held that this type of incident, where members of the public are harmed by the use of inappropriate force by police, has the potential to seriously undermine public confidence in the police service.  In my view, this is particularly the case when the senior officer present lies about the circumstances of the event and suggests to his subordinate how to inaccurately report the incident in order to avoid repercussions. The situation is compounded by the fact that other, more senior officers, also relied on his account of the incident. 
[47]	I accept the applicant’s submissions that to ensure an officer’s use of force is limited to that which is reasonable and necessary it is crucial that incidents of use of force are reviewed and scrutinised. The community’s expectations of the standard of behaviour expected by the Police Service can only be upheld where officers are subject to this degree of oversight.  
[48]	I also accept that a higher standard of conduct is expected of a senior officer, being a standard upon which junior members of the QPS can model themselves.
[49]	Sergeant Austin has completed 76 hours community service at the Gold Coast PCYC, which was considerably more than the required period (of 20 hours). He also wore senior constable insignia for the 3 month period of his demotion, which he says caused him embarrassment with both other officers and members of the public (such as staff from licensed venues) who recognised he had been demoted. This, he said, served to reinforce to him the significance of being a sergeant and the seriousness of the matter. 
[50]	Sergeant Austin was responsible during his demotion for the conduct of reviews on the application of use of force options by police and for providing initial advice to a Senior Sergeant as to compliance or otherwise with legislation, policy and procedure by deploying officers. The Senior Sergeant provided evidence that the advice given by the second respondent was timely and accurate and was information he could rely upon in making his final determinations.
[51]	Sergeant Austin has also undertaken a number of management strategies since the original decision, including a Professional Development Strategy which involved being mentored by an Inspector for a six month period. During meetings with the Inspector the second respondent discussed his decision making and reasoning, the QPS’ expectations of him as a Sergeant and the impact his misconduct had on the Service, other officers, MK and the public generally and, ultimately, on himself.
[52]	I note that the second respondent has an otherwise good record, both before and after the relevant matters. He has an impressive record as a Bomb Technician having defused suspicious devices throughout South East Region, often at risk to his own personal safety. He also has references from colleagues attesting to his good conduct.
[53]	In all the circumstances, and after considering all other possible sanctions available under the PSAA, I consider that the purposes of disciplinary proceedings will be best met by imposing a sanction of a demotion from the rank of sergeant pay deduction 3.7 to senior constable pay point 2.10, for a period of twelve months, not suspended (with reversion to substantive sergeant pay-point at the completion of the suspension period).