A pistol and pepper spray on display: Policeman wins appeal after alleged misconduct

A detective sergeant has won an appeal based on an “error of law”, after allegedly engaging in misconduct while serving in Queensland Police’s Child Protection Investigation Unit.

A detective sergeant was sacked by Queensland Police Service (QPS) on 2 December 2020 for alleged misconduct, including letting a youth offender inspect her gun magazine, showing the offender how to operate her pepper spray cannister, and for “various instances of allegedly negative workplace behaviour over an eight-year period”.

QPS Assistant Commissioner Maurice Carless and the detective sergeant appealed the case’s 14 January 2025 decision, which found that numerous alleged particulars of misconduct submitted by Carless did not constitute official misconduct based on the Police Services Administration Act 1990 on the grounds of an error of law.

The appeal decision, which was heard on the papers, was delivered by Queensland Civil and Administrative Tribunal (QCAT) senior member Ann Fitzpatrick on 23 January 2026, who granted both appeals and set aside the 14 January 2025 decision.

Fitzpatrick remitted the matter to be reheard by a differently constituted tribunal.

The dismissal

The applicant was sworn in as a police officer in February 1969 and was transferred into the Child Protection Investigation Unit at a police station in Brisbane in the role of detective sergeant in 2013.

Just over half a year later, the applicant was terminated effective immediately on 2 December 2020, with the Queensland Police Service (QPS) assistant commissioner submitting that “the conduct eroded public confidence in the QPS”.

Unauthorised access granted to youth offender

The QPS assistant commissioner alleged that on 11 November 2018, the applicant: “Permitted [a youth offender] unauthorised access to and handling of restricted QPS Category ‘R’ accoutrements”.

It was also alleged she allowed a “youth offender to physically handle a magazine, containing live rounds, from the applicant’s service pistol and an oleoresin capsicum (‘OC’) spray cannister”.

“The applicant conceded that she did allow the youth offender to handle a magazine from her service pistol. The magazine held a number of cartridges. The youth held the magazine in his hand and examined it, then handed it back to the applicant,” QCAT member Richard Oliver said in his 14 January 2025 decision.

“She then showed him the OC spray. He held the OC spray and she showed him how it was operated by lifting the safety flap to access the release button. The reason for engaging with the youth in this way, the applicant says, was to try [to] build a rapport with the youth to address his anti-social behaviour.”

The detective sergeant was served with a disciplinary proceeding notice issued on 15 May 2020 for alleged misconduct before her eventual dismissal on 2 December 2020.

Allegations of negative workplace behaviour

The assistant commissioner submitted that “on diverse dates between 1 January 2011 and 14 February 2019 [applicant’s] conduct was improper in that [she] engaged in negative workplace behaviour”.

The tribunal found that the assistant commissioner had submitted 34 particulars supporting the misconduct allegations against the detective sergeant.

In her 23 January 2026 decision, despite the submission of numerous particulars, senior member Fitzpatrick said that no party submissions in the appeals “provide clear guidance as to how [member Oliver] should have proceeded in the conduct of the review”.

“If the assistant commissioner intended an assessment to be made by reference to at least some or all of the particularised conduct he could have said words to the effect: ‘You have engaged in a course of conduct between 2011 and 2019 which viewed collectively is improper conduct …’,” the senior member added.

The assistant commissioner asserted that the proper course of action for the member was to make findings as to error of law in the 14 January 2025 decision, draw any necessary inferences where error is found and make independent findings whether the events occurred or not, and to look at all the facts collectively to determine if the charge is made out.

“I query whether the assistant commissioner is asserting that if not all the particulars which comprise the disciplinary charge are substantiated whether the charge is not met. That is an all-or-nothing approach,” senior member Fitzpatrick said.

Remitted for rehearing

The senior member ordered the 14 January 2025 decision and order to be set aside, granting the assistant commissioner and the detective sergeant’s appeals on the grounds of an error of law.

Further, the senior member remitted the matter to be reheard by a different member, on the basis of the error that arose due to member Oliver’s failure to determine whether certain particulars were substantiated.

She noted this order may result in all questions of fact and law having to be determined again, unless a more efficient mode of proceeding is proposed – with the reappointed member to decide how to proceed.

Senior member Fitzpatrick made no order as to costs.

The case citation: Assistant Commissioner Maurice Carless & Anor v HTI; HTI v Assistant Commissioner Maurice Carless & Anor [2026] QCATA 29