Acreman v Deputy Commissioner Brett Pointing - [2018] QCAT 321

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 321

PARTIES:

GEOFFREY OWEN ACREMAN
(applicant)

v

DEPUTY COMMISSIONER BRETT POINTING

(respondent)

APPLICATION NO/S:

OCR294-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 September 2018

HEARING DATE:

4 September 2018

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.   The decision of Deputy Commissioner Brett Pointing made on 29 August 2017 in relation to a finding of misconduct concerning Matter Two and Matter Three is substantiated.

2.   The decision of Deputy Commissioner Brett Pointing made on 14 December 2017 in relation to sanction concerning Matter Two is confirmed.

THE TRIBUNAL DIRECTS THAT:

3.   Deputy Commissioner Brett Pointing must file in the Tribunal two (2) copies and give to Geoffrey Owen Acreman one (1) copy of any further written submissions in relation to the appropriateness of any sanction to be imposed concerning Matter Three, by:

4:00pm on 8 October 2018

4.   Geoffrey Owen Acreman must file in the Tribunal two (2) copies and give to Deputy Commissioner Brett Pointing one (1) copy of any written submissions in reply, by:

4:00pm on 22 October 2018

5.   Unless otherwise ordered by the Tribunal and in the absence of a request for a further oral hearing, the Tribunal will determine the question of sanction concerning Matter Three on the papers by written submissions filed by the parties on a date not before 4:00pm on 23 October 2018.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – 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 – whether information was accessed for an official purpose related to the performance of duties of a police officer – where the allegations of misconduct were found to be substantiated – where sanction imposed – where police officer demoted in rank and pay point – where application to review the finding of misconduct and the sanction imposed – whether information was accessed for an official purpose – whether a police officer is always on duty – whether police officer was mistaken as to nature of the confidential information – whether confidentiality of documents waived – whether allegations are substantiated

Crime and Corruption Act 2001 (Qld), s 219BA, s 219H, Schedule 2
Police Service Administration Act 1990 (Qld), s 1.4, s 2.2, s 2.3, s 3.2(3)
Police Service (Discipline) Regulations 1990 (Qld), s 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21, s 66

Aldrich v Ross [2010] 2 Qd R 235
Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors (1952) 85 CLR 237
Briginshaw v Briginshaw (1938) 60 CLR 336
DA v Deputy Commissioner Stewart [2011] QCATA 359
Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384
Hardcastle v Commissioner of Police (1984) 53 ALR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCAT 321
Decision Date: 20 September 2018

CaseChat Overview and Summary

Acreman v Deputy Commissioner Brett Pointing is a disciplinary case involving a police officer, Geoffrey Owen Acreman, who has been demoted in rank and pay point following findings of misconduct. The misconduct related to an off-duty incident in 2015, where Mr Acreman accessed official and confidential information from the Queensland Police Service computer system. The court was tasked with reviewing the findings of misconduct and the subsequent sanction imposed by the Deputy Commissioner of Police.

The primary legal issues the court had to address were whether the information accessed by Mr Acreman was for an official purpose related to his duties as a police officer, and whether he was still on duty at the time of the incident. Additionally, the court considered whether Mr Acreman was mistaken about the confidential nature of the information and whether the confidentiality of the documents was waived. The court also examined whether the allegations of misconduct were substantiated.

The court, after conducting a fresh hearing on the merits, upheld the findings of misconduct and the sanction imposed by the Deputy Commissioner. The court found that Mr Acreman had indeed accessed official and confidential information for purposes unrelated to his official duties and that he was still on duty during the incident. The court dismissed Mr Acreman’s argument that he was mistaken about the confidential nature of the information and concluded that the allegations were substantiated. Consequently, the findings of misconduct concerning Matter Two and Matter Three were affirmed, and the sanction imposed for Matter Two was confirmed. The court directed that further submissions on the sanction concerning Matter Three be filed by specified dates, with the final decision to be made on the basis of written submissions.

The court's decision is that the findings of misconduct concerning Matter Two and Matter Three are substantiated, and the sanction imposed for Matter Two is confirmed. The Deputy Commissioner is required to submit written submissions regarding the sanction for Matter Three by a specified date, to which Mr Acreman must respond. The Tribunal will then determine the sanction for Matter Three on the basis of the written submissions.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The decision of Deputy Commissioner Brett Pointing made on 29 August 2017 in relation to a finding of misconduct concerning Matter Two and Matter Three is substantiated.

2. The decision of Deputy Commissioner Brett Pointing made on 14 December 2017 in relation to sanction concerning Matter Two is confirmed.

THE TRIBUNAL DIRECTS THAT:

3. Deputy Commissioner Brett Pointing must file in the Tribunal two (2) copies and give to Geoffrey Owen Acreman one (1) copy of any further written submissions in relation to the appropriateness of any sanction to be imposed concerning Matter Three, by:

4:00pm on 8 October 2018

4. Geoffrey Owen Acreman must file in the Tribunal two (2) copies and give to Deputy Commissioner Brett Pointing one (1) copy of any written submissions in reply, by:

4:00pm on 22 October 2018

5. Unless otherwise ordered by the Tribunal and in the absence of a request for a further oral hearing, the Tribunal will determine the question of sanction concerning Matter Three on the papers by written submissions filed by the parties on a date not before 4:00pm on 23 October 2018.

Background

Background to the litigation

The genesis of the disciplinary proceedings relates to an off-duty incident in 2015. Mr Acreman and his wife went to a house to view an item they had seen advertised on an internet website. Mr Acreman decided against buying the item and a disagreement followed between Mr Acreman and the man selling the item (‘the incident’). The man selling the item (‘the complainant’) made a formal complaint to the Queensland Police Service (‘QPS’) about Mr Acreman and the incident (‘the complaint’). At the time of the incident, Mr Acreman was a Detective Inspector based at the Crime and Corruption Commission (‘CCC’). He had a distinguished and unblemished career in the QPS having been sworn into the service in 1981.Background After the incident but before a complaint was made, Mr Acreman used the QPS QPRIME computer system to make inquiries about the complainant. He also went to the complainant’s address to obtain his motor vehicle registration number. Mr Acreman again used the QPS QPRIME computer system to make inquiries about the complainant. After the complaint was received, Mr Acreman participated in a criminal interview with the QPS. He was later transferred from his position at the CCC to a position within the QPS. This was a direct result of the complaint and investigation.[3] After he was transferred to the QPS, Mr Acreman accessed a folder on the QPS computer system and emailed a copy of the folder to his private email address. The files copied and emailed contained relevant information about the complaint. Mr Acreman later deleted the email from his private email address.[3]See Applicant’s outline of submissions filed on 28 June 2018 and Exhibit 2, Annexure D, [1.3]. On 11 May 2017, Mr Acreman was issued with a disciplinary hearing notice concerning three matters of alleged misconduct. The respondent decision-maker found matter one to be not substantiated. Matters Two and Three, however, were found to be substantiated. Those matters concerned accessing official and confidential information contained within the QPS computer system. After finding matter three to be substantiated, the demotion in rank followed. Mr Acreman wants to review the respondent’s decision in relation to the findings of misconduct and the sanction imposed. Mr Acreman does not, however, challenge the sanction of reprimand imposed for matter two if, on review, the matter is found to be substantiated.What is the Tribunal’s power on review? The Tribunal on review conducts a fresh hearing on the merits to arrive at the correct and preferable decision.[4] The Tribunal effectively stands in the shoes of the decision-maker exercising the same powers as the decision-maker under the enabling Act to produce the correct and preferable decision.[5] The decision-maker has a duty in the review proceeding to assist the Tribunal to arrive at the correct and preferable decision.[6] The review proceeds before the Tribunal as a ‘rehearing’ on the evidence that was before the respondent decision-maker.[7] There is no presumption that the reviewable decision relating to the findings of misconduct and sanction are correct and it is not necessary to identify any error in the decision-maker’s process for making the decision or the reasons for making it.[8] There is established authority that says the Tribunal brings the public perspective to bear and the Tribunal is bound to make its own decision on the evidence before it.[9][4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.[5]QCAT Act, s 19. The Tribunal must decide the review proceeding in accordance with the QCAT Act and the enabling Act.[6]Ibid, s 21.[7]Crime and Corruption Act 2001 (Qld), s 219H.[8]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [12]. [9]Murray v Deputy Commissioner Stewart [2011] QCAT 583 at [40] and see Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, [6]. See also Aldrich v Ross [2010] 2 Qd R 235.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 321
PARTIES:	GEOFFREY OWEN ACREMAN (applicant)
v
DEPUTY COMMISSIONER BRETT POINTING (respondent)
APPLICATION NO/S:	OCR294-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	20 September 2018
HEARING DATE:	4 September 2018
HEARD AT:	Brisbane
DECISION OF:	Member Browne
ORDERS:	IT IS THE DECISION OF THE TRIBUNAL THAT: 1. The decision of Deputy Commissioner Brett Pointing made on 29 August 2017 in relation to a finding of misconduct concerning Matter Two and Matter Three is substantiated. 2. The decision of Deputy Commissioner Brett Pointing made on 14 December 2017 in relation to sanction concerning Matter Two is confirmed. THE TRIBUNAL DIRECTS THAT: 3. Deputy Commissioner Brett Pointing must file in the Tribunal two (2) copies and give to Geoffrey Owen Acreman one (1) copy of any further written submissions in relation to the appropriateness of any sanction to be imposed concerning Matter Three, by: 4:00pm on 8 October 2018 4. Geoffrey Owen Acreman must file in the Tribunal two (2) copies and give to Deputy Commissioner Brett Pointing one (1) copy of any written submissions in reply, by: 4:00pm on 22 October 2018 5. Unless otherwise ordered by the Tribunal and in the absence of a request for a further oral hearing, the Tribunal will determine the question of sanction concerning Matter Three on the papers by written submissions filed by the parties on a date not before 4:00pm on 23 October 2018.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – 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 – whether information was accessed for an official purpose related to the performance of duties of a police officer – where the allegations of misconduct were found to be substantiated – where sanction imposed – where police officer demoted in rank and pay point – where application to review the finding of misconduct and the sanction imposed – whether information was accessed for an official purpose – whether a police officer is always on duty – whether police officer was mistaken as to nature of the confidential information – whether confidentiality of documents waived – whether allegations are substantiated Crime and Corruption Act 2001 (Qld), s 219BA, s 219H, Schedule 2 Police Service Administration Act 1990 (Qld), s 1.4, s 2.2, s 2.3, s 3.2(3) Police Service (Discipline) Regulations 1990 (Qld), s 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21, s 66 Aldrich v Ross [2010] 2 Qd R 235 Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors (1952) 85 CLR 237 Briginshaw v Briginshaw (1938) 60 CLR 336 DA v Deputy Commissioner Stewart [2011] QCATA 359 Comptom v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 Hardcastle v Commissioner of Police (1984) 53 ALR…