Acreman v Deputy Commissioner Brett Pointing

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95

PARTIES:

GEOFFREY OWEN ACREMAN
(applicant)
v

DEPUTY COMMISSIONER BRETT POINTING

(respondent)

APPLICATION NO/S:

OCR294-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 April 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.   Geoffrey Owen Acreman is granted leave to rely on the following fresh evidence:

(a)   Affidavit of Patrick Michael Quinn sworn 22 October 2018; and

(b)   Affidavit of Anthony Fleming sworn 19 October 2018.

2.   The decision of Deputy Commissioner Brett Pointing made on 14 December 2017 in relation to sanction concerning matter three is set aside and the following decision is substituted:

(a)   Geoffrey Owen Acreman is reduced from Inspector pay point 5.6 to Senior Sergeant pay point 4.1 for a period of twelve (12) months from 14 December 2017;

(b)   At the conclusion of the twelve (12) month period, Geoffrey Owen Acreman shall return to Inspector pay level 5.6;

(c)   Within two (2) months of the date of this order Geoffrey Owen Acreman must complete the following:

(i)         Ethics and ethical decision-making online training (QC1022_02_A);

(ii)        Information Security Online Tutorial (QC0241_03);

(iii)       Information Classifications Systems Online Training (QC0451_03); and

(iv)       Professional Practice within the QPS Online Training (QC1022_04).

(d)   Within eight (8) months from the date of this order Geoffrey Owen Acreman must complete external self-funded ethics and governance training through a registered training organisation. 

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – POLICE – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where the applicant police officer was involved in an off-duty incident – where two allegations presented concerning accessing official and confidential information contained within the Queensland Police Service computer system – where sanction imposed – where police officer demoted in rank and pay point – where application to review the finding of misconduct and the sanction imposed – where the allegations of misconduct were found to be substantiated by the Tribunal on review – whether sanction imposed is the correct preferable decision

Crime and Corruption Act 2001 (Qld), s 219BA, s 219H, Schedule 2
Police Service Administration Act 1990 (Qld), s 1.4.
Police Service (Discipline) Regulations 1990 (Qld), s 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 66

Aldrich v Ross [2010] 2 Qd R 235
R v Bowen (1995) 2 Qd R 8
Crime and Corruption Commission v Acting Deputy Commissioner Barron and Anor [2015] QCAT 96.
Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
DA v Deputy Commissioner Stewart [2011] QCATA 359
Deputy Commissioner Stewart v Dark [2012] QCA 228
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Murray v Deputy Commissioner Stewart [2011] QCAT 583
R v Police Appeals Tribunal [2016] EWCH 22708
Police Service Board v Morris (1985) 156 CLR 397
Queensland Police Service v Comptom (No 2) [2011] QCATA 246

REPRESENTATION:

Applicant:

T E Schmidt instructed by Gilshenan &…

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Details
Case
[2019] QCAT 95
Decision Date

CaseChat Overview and Summary

In the case of Acreman v Deputy Commissioner Brett Pointing, the applicant, Geoffrey Owen Acreman, was a police officer with the Queensland Police Service (QPS) who was subject to disciplinary proceedings for misconduct. The primary issue before the court was whether the sanction imposed on Mr Acreman by the Deputy Commissioner was the correct and preferable decision. The Deputy Commissioner had demoted Mr Acreman from the rank of Inspector to Senior Sergeant and reduced his pay point, following a disciplinary hearing where two allegations of misconduct were substantiated. The first allegation involved an off-duty incident, while the second involved Mr Acreman accessing official and confidential information within the QPS computer system without an official purpose. Mr Acreman sought a review of the sanction imposed, arguing that the Deputy Commissioner's decision was not the correct and preferable decision.

The court examined the nature and seriousness of Mr Acreman's conduct, taking into account his unblemished career and the impact of the sanction on his professional standing. The court found that while Mr Acreman's actions were improper, they did not reach the level of the most serious disciplinary matters. The court considered the Deputy Commissioner's reasoning that a demotion was necessary to reflect the gravity of Mr Acreman's conduct and to maintain public confidence in the QPS. However, the court determined that the sanction of a demotion for a period of twelve months, followed by a return to his previous rank, was more appropriate. Additionally, the court ordered that Mr Acreman complete various training courses to address the misconduct.

The court concluded that the Deputy Commissioner's decision was not the correct and preferable decision and substituted a modified sanction. Mr Acreman was to be demoted to the rank of Senior Sergeant for a period of twelve months, after which he would return to his previous rank of Inspector. Furthermore, Mr Acreman was required to complete specific training modules within a stipulated timeframe. This decision balanced the need to address the misconduct with the recognition of Mr Acreman's otherwise distinguished career.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Geoffrey Owen Acreman is granted leave to rely on the following fresh evidence:

(a) Affidavit of Patrick Michael Quinn sworn 22 October 2018; and

(b) Affidavit of Anthony Fleming sworn 19 October 2018.

2. The decision of Deputy Commissioner Brett Pointing made on 14 December 2017 in relation to sanction concerning matter three is set aside and the following decision is substituted:

(a) Geoffrey Owen Acreman is reduced from Inspector pay point 5.6 to Senior Sergeant pay point 4.1 for a period of twelve (12) months from 14 December 2017;

(b) At the conclusion of the twelve (12) month period, Geoffrey Owen Acreman shall return to Inspector pay level 5.6;

(c) Within two (2) months of the date of this order Geoffrey Owen Acreman must complete the following:

(i) Ethics and ethical decision-making online training (QC1022_02_A);

(ii) Information Security Online Tutorial (QC0241_03);

(iii) Information Classifications Systems Online Training (QC0451_03); and

(iv) Professional Practice within the QPS Online Training (QC1022_04).

(d) Within eight (8) months from the date of this order Geoffrey Owen Acreman must complete external self-funded ethics and governance training through a registered training organisation.

Background

Background to the litigation

I accept Mr Acreman’s submission that the fresh evidence is relevant to the determination of sanction and that it would be unfair not to allow Mr Acreman to rely on the fresh evidence.[9] The fresh evidence sought to be adduced by Mr Acreman consists of two affidavits: an affidavit prepared by Mr Acreman’s solicitor, Patrick Quinn, who deposes to, amongst other things, the availability of relevant training for Mr Acreman to complete; and an affidavit prepared by Anthony Fleming, Mr Acreman’s supervisor, who deposes to Mr Acreman’s good conduct and his duties as a police officer since November 2015 when he was stand down and removed from his position in the Crime and corruption Commission (‘CCC’). I am satisfied that the fresh evidence may assist the Tribunal in determining the appropriateness of the sanction to be imposed in discharging its statutory function to arrive at the correct and preferable decision. Leave to rely on the fresh evidence is granted.[9]Applicant’s submission for new evidence for sanctioning filed 22 October 2028.Background Mr Acreman commenced his career with the Queensland Police Service (‘QPS’) in 1981 and rose to the rank of Inspector. At the time of the incident, giving rise to the disciplinary proceedings, Mr Acreman had a distinguished and unblemished record as a serving police officer and held a position at the CCC that commenced in 2013.[10][10]Exhibit 4, p 147. The incident giving rise to matter two in the disciplinary proceedings took place in 2015 and involved an off duty incident between Mr Acreman and a member of the public. Matter three took place in 2016 and involved Mr Acreman accessing official and confidential information held within the QPS computer system. Mr Acreman accessed the information without an official purpose including opening a folder that contained four files. Without authority, Mr Acreman forwarded the folder containing the four files to his private email address and later deleted the files from his private email address. In determining whether the findings of misconduct for matters two and three are substantiated, I made relevant findings about Mr Acreman’s conduct. In making findings, I accepted some of Mr Acreman’s submissions about the allegations and his conduct. Relevantly, for matter three, I found that Mr Acreman did form an honest belief that at the time he accessed the folder containing the four documents on the QPS computer system that the four documents were accessible by anyone who had access to the QPS computer system.[11] [11]Reasons, [42]. Further, I found that the four documents contained within the folder that Mr Acreman accessed on the QPS computer was confidential information and at all times remained confidential, that was related to a complaint and QPS investigation about Mr Acreman.[12] I found that the information contained within the folder was not related to the performance of Mr Acreman’s official duties as a police officer and that the information is ‘afforded protection by QPS internal policy and the law’.[13] I found that Mr Acreman accessed official and confidential information contained within the QPS computer system without an official purpose related to the performance of his duties as a police officer. In finding that Mr Acreman’s conduct is misconduct, I was satisfied that Mr Acreman’s conduct was ‘improper and does not meet the standard of conduct the community reasonably expects of a police officer’.[14][12]Ibid, [46], [50].[13]Ibid, [51].[14]Reasons, [54].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The respondent decision-maker found that he no longer had ‘confidence’ in Mr Acreman’s ability to fulfil the role of a Commissioned Officer in a manner which maintains public confidence in the QPS. The respondent although ‘mindful’ of the impact a demotion from Inspector to Senior Sergeant will have found that a Commissioned Officer is held in ‘high regard’ and the sanction must ‘reflect the gravity of [the] conduct being contradictory to the expectations of an Inspector’.[43] The respondent also considered that it was not appropriate to suspend the sanction in the circumstances; and took the opportunity to ‘warn’ Mr Acreman that should he commit further acts of misconduct or breaches of discipline warranting consideration by a prescribed officer then he should expect ‘dismissal’ as a likely outcome having regard to the conduct.[44][43]Decision on sanction dated 14 December 2017, Exhibit 4, p 115.[44]Ibid, p 117.What is the correct and preferable decision? In finding matter three to be substantiated I made relevant findings about Mr Acreman’s conduct. I accepted Mr Acreman’s evidence that he did form an honest and reasonable belief at the time he accessed the folder containing the four documents on the QPS computer system that the four documents were accessible by anyone who had QPS computer system access. Further, I found that at the relevant time that Mr Acreman found the folder containing the four documents on the QPS computer system, the investigation in relation to the complaint made by the complainant had been finalised and he was waiting for the notice of the disciplinary proceedings.[45] [45]Reasons, [42]. I did not accept, however, that it was reasonable for Mr Acreman to from the belief that confidentiality of the four documents had been waived at the time of access by him and the emailing.[46] I did not accept Mr Acreman’s submission that because of the honest and reasonable belief held by him that the document or information is no longer confidential. I observed that there was no evidence before me that Mr Acreman made any enquiries about the documents that clearly related to the complaint concerning himself personally and an off-duty incident, before reading the documents contained within the QPS system that were at all times confidential documents notwithstanding his concerns that other people within the QPS may have access to them.[47] [46]Ibid, [42].[47]Reasons, [53]. Mr Acreman’s conduct needs to be considered in the context of the findings made by the Tribunal in determining that matter three is substantiated. Mr Acreman’s conduct is serious but I do not consider the conduct to be ‘the most serious of disciplinary matters’ as found by the respondent decision-maker. The Tribunal must ultimately reach its own conclusion as to the correct and preferable sanction to be imposed. Here, the conduct took place in circumstances where the investigation concerning Mr Acreman and the complaint had been finalised and Mr Acreman believed the documents were accessible by anyone who had QPS computer system access. Although the documents were, as found by me, not related to the performance of Mr Acreman’s official duties as a police officer and the information was ‘afforded protection by QPS internal policy and the law’,[48] the information did relate to Mr Acreman personally and the complaint made about an off-duty incident that Mr Acreman believed had been finalised by the QPS. The letter sent by the CCC to Mr Acreman on 10 November 2015 states that the investigation into the allegations has been completed.[49] This is a compelling feature of Mr Acreman’s conduct and is one of many matters that I must consider in determining the appropriate sanction.[48]Ibid, [51].[49]Ibid, [42].

Ratio Decidendi

Legal Principle Established

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