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  • Unreported Judgment

Spencer v Assistant Commissioner McCarthy

 

[2019] QCAT 375

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375

PARTIES:

mark geoffrey spencer

 

(applicant)

 

v

 

assistant commissioner mccarthy

 

(first respondent)

 

CRIME & CORRUPTION COMMISSION

 

(second respondent)

APPLICATION NO/S:

OCR009-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 October 2019

HEARING DATE:

28 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. The decision of the First Respondent that the Applicant be reduced in rank from Sergeant (pay-point 3.6) to Senior Constable (pay-point 2.10) is set aside.
  2. The Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.1 for a period of 2 years effective from 14 December 2017.
  3. From 14 December 2019 the Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.5.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND OFFICIAL MISCONDUCT – QUEENSLAND – where the applicant accessed official information using the Queensland Police Service computer system – where the information accessed was not for an official police purpose – whether the applicant was demoted in rank from Sergeant to Senior Constable – where some particulars of misconduct were set aside – whether the sanction imposed by the Assistant Commissioner should stand – whether a lesser sanction should be imposed.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Crime and Corruption Act 2001 (Qld), s 219A

Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95

O’Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 127

Frazer v Assistant Commissioner Condon [2016] QCAT 271

Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96

Aldrich v Ross [2001] 2 Qd R 235

APPEARANCES &

REPRESENTATION:

 

Applicant:

Mr  Black of counsel, instructed by Gilshenan & Luton

First respondent:

Mr  Fraser of the Queensland Police Service

Second respondent:

Mr Caughlin of counsel, retained by the Crime and Corruption Commission

REASONS FOR DECISION

  1. [1]
    In December 2017 the Assistant Commissioner made a decision that the applicant had engaged in official misconduct by accessing confidential information in the Queensland Police Service computer system in respect of a number of named individuals. In the particulars provided to the applicant, there were six individuals and in respect of each individual the Assistant Commissioner found that the access was not for official police purposes.
  2. [2]
    Having found that the Matters were substantiated, the Assistant Commissioner imposed a sanction that the applicant be reduced in rank from Sergeant, pay point 3.6, to Senior Constable pay point 2.10. There was no time limit over which the sanction was to apply meaning that the applicant would have to progress back through the ranks, and pay points in the normal promotional procedures of the QPS.
  3. [3]
    After the Assistant Commissioner made his decision, the applicant filed an application to review that decision which application was heard on 1 April 2019 with reasons published on 3 July 2019. The Tribunal set aside three of the particulars of Matter 1(a) and found that four of the particulars in Matter 1(a) had been substantiated. Particulars of the matters substantiated are set out in the table below provided by counsel for the applicant.

5 February 2015

Matter 1(a) NR

Searched entity of Richard Nicholas accessing driver's license and traffic history of Nicholas. Printed traffic record of Nicholas.

14 December 2015

Matter 1(a) NB

Searched entity of NB accessing occurrence QPl401122671 relating to a stealing matter; QP1400997771 relating to a bodily harm occurrence; QPI400987288 relating to a drink driving matter; QP1400694509 relating to a liquor offence and QP1400102883 relating to a stealing matter.

20 December 2015

Matter 1(a) NB

Searched vehicle registration 243VNR (vehicle of NB).

14 January 2016

Matter 1(a) DM

Searched entity of DM accessing occurrences QI1500446857; QI1501848779 relating to a drugs intelligence report; QP0200389599 relating to a prostitution offence; QP1301270215 relating to a drug matter.

21 May 2016

Matter 1(a) MA

Searched entity of MA accessing address details of McCarthy and occurrence QP1500885117 relating to traffic matters.

27 May 2016

Matter 1(a) NR

Searched entity of NR and viewed traffic history of driver's licence and infringement history

  1. [4]
    Because not all of the original particulars of misconduct were substantiated, the parties were invited to file submissions on sanction. The proceeding was then listed for a hearing on 28 October 2019.
  2. [5]
    Both in the written submissions and at the resumed hearing, the parties take different positions as to appropriate sanction to be imposed. The applicant submits that given that not all matters were substantiated the sanction should be varied to a reduction of pay-point Sergeant 3.6 to pay-point Sergeant 3.5 for a period of 12 months. Both respondents contend that the sanction imposed by the Assistant Commissioner should stand with ‘eligibility to immediately apply for Sergeants’ positions as appropriate in the circumstances’. The last part seems to be superfluous as the applicant can now apply for a Sergeants position.
  3. [6]
    As both the issue of substantiation and the sanction imposed were the subject of the original review application, and that the particulars of misconduct have been substantiated have changed, it is appropriate to review the sanction imposed generally bearing in mind, that the Tribunal must continue to apply the principles set out in s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), that is, to produce the correct and preferable decision by way of a fresh hearing on the merits.
  4. [7]
    The purposes of disciplinary proceedings are:
    1. (a)
      to protect the public; and
    2. (b)
      to uphold ethical standards within units of public administration and the police service; and
    3. (c)
      to promote and maintain public confidence in the public sector.[1]
  1. [8]
    Any sanction imposed is not to be punitive but act as a deterrent, and importantly to also maintain the proper standards necessary for community confidence in the police service. It must also reflect appropriate disapproval of the conduct engaged in by, in this case, the police officer, so that a recurrence of the conduct is unlikely.[2]
  1. [9]
    What must also be taken into account is the seriousness of the misconduct, the applicant’s personal circumstances and whether, such conduct is likely to be repeated in the future.
  2. [10]
    I must also give due weight to the decision of the Assistant Commissioner having regard to the need to maintain internal discipline in the QPS and his experience and knowledge of internal processes[3]
  3. [11]
    At the commencement of the hearing I gave leave to the applicant to file and rely on a further affidavit by the applicant which addresses the impact the sanction has had on his career and personal life. It addresses the humiliation, rumours and innuendo concerning his demotion within the QPS and also how it has impacted on his professional career as a police officer. The difficulty he now faces in applying for positions as Sergeant, is the fact that the disciplinary action has been taken against him, which puts him at a disadvantage in competing with other eligible applicants particularly where the positions are at popular geographic locations. The reduction in pay point has had a significant financial impact on him and his family, he estimates that this has resulted in loss of something in excess of $10,000 a year gross.

The Applicant’s History

  1. [12]
    The applicant has been a sworn police officer for 27 years. He progressed through the ranks and was promoted to Sergeant about 10 years ago. At the time of these incidents he was a Sergeant at the Burpengary Police Station and had been stationed there since 2005. In that role, as Sergeant of the police station he was responsible for about 20 police officers, and I accept the submission that during this time, he has been instrumental in the training of many police officers who have passed through that police station.
  2. [13]
    Further whilst at Burpengary, the applicant was actively involved in community policing and was respected in the community. There is no criticism by either the first respondent or the second respondent of the discharge of his duties as a sworn police officer or his dedication to duty prior to and after these particular incidents. His knowledge and the experience gained over his time as a police office is clearly an asset to QPS.
  3. [14]
    In view of these matters, I find that the conduct engaged in by him, is out of character and an error of judgment on his part rather than a conscious intent to breach regulations for his own purposes. There was no personal gain from the information obtained from the various data bases in respect of the individuals and, in a misguided way, he considered he was discharging his duty as a sworn officer.

The Misconduct

  1. [15]
    The confidential information as can be seen by the table above and the substantiation decision, all related to individuals connected to his friend NR who he was trying to assist in providing domestic violence protection to a very close friend of RN then partner, MA. All of the particulars of Matter 1 related to this core issue and in doing so, he clearly over reached and used the facilities at his disposal in an improper and unacceptable way.
  2. [16]
    The various breaches of privacy related to accessing information in respect of traffic history and offence history, again with the misguided view to try and assist PS.
  3. [17]
    At the heart of this case is the seriousness of any police officer abusing the powers entrusted to them of being able to access, in a variety of ways, the personal information of the general public. This was reinforced in a general direction to all police officers, general staff and even chaplains on 30 March 2016 by the then Police Commissioner, Mr Stewart. The direction was issued as a reminder that accessing the QPS computers and misusing information obtained for curiosity or personal interest would be considered corrupt conduct. It was also a reminder that any misconduct would be the subject of disciplinary action and may also result in criminal charges.

Respondents’ Submissions

  1. [18]
    It is submitted by both respondents that an officer of the applicant’s experience and standing would not need any such reminder. There is of course some considerable weight to that submission. The first respondent also submits, in addition to the above, that although in one sense the applicant’s longstanding service as a police officer is something to be taken into account in his favour, it is also an aggravating element in that while service and high rank carry with them responsibilities over and above that which one would expect of a junior officer. Consistent with the objectives of imposing any sanction it is submitted by both respondents, that it is used to set an example of the seriousness with which the QPS regards such conduct and to serve as a deterrent to others who might be inclined to abuse that power.
  2. [19]
    The second respondent also submits that the Tribunal should have regard to purposes of searching Ms MA’s traffic history in so far as it might involve her accepting responsibility for a traffic infringement notice issued to NR. That may well have been the intent of MA, but it is a step too far to suggest that the applicant may have been consciously involved in any activity on the part of MA in providing the false statement to the transport authorities in respect of the infringement. As found in the substantiation decision, the very fact that the applicant accessed personal information of those whom the particulars were substantiated is very serious and not to be regarded lightly.

Comparable Decisions

  1. [20]
    Each of the parties have referred me to a number of comparable decisions[4]. The most recent and perhaps relevant is that of O’Brien v Assistant Commissioner Paul Taylor & Anor.[5]
  2. [21]
    That case involved a Sergeant who accessed the police computer system on 12 separate occasions over a 12 month period. The decision reveals that O’Brien was close friends with an employee at a hotel who would provide her with information from time to time. She would use that information to search QPRIME and would release that information to her friend via text messages. In the course of her reasons for the decision, the learned member said:

A police officer with some 7 years’ experience should be aware of professional boundaries that must exist when working with members of the public, particularly when working in a regional area. More importantly, when dealing with a member of the public a police officer should maintain a professional relationship to ensure that his or her judgment necessary to perform police duties to a standard expected by the community, is not clouded by emotional or personal preference. Here, Ms O’Brien as a senior police officer, has allowed her judgment to be clouded in the exercise of her duties when dealing with a member of the public. This is clear from Ms O’Brien’s evidence that she had a ‘professional’ relationship with [NT] and [TT] and that off duty she considered them her friends.

  1. [22]
    The circumstances of the applicant’s relationship with NR falls into a similar category. However, the difference here is that Ms O’Brien disclosed information that was recovered from QPRIME with her ‘friend’ and did so on a number of occasions. In my view, this is a distinguishing feature of this case compared to the applicant’s conduct.
  2. [23]
    Another case of relevance is Acreman v Deputy Commissioner Brett Pointing.[6] The applicant was an Inspector of Police with 35 years’ service at the time of his misconduct. He accessed the QPS computer relating to a complaint that had been made against him, and copied that information and forwarded it, by email, to his own computer. He did not disclose this information to any third parties, but used it for his own purposes. The officer was sanctioned by demotion to a rank of Senior Sergeant for a period of 12 months and then he returned to his former rank. In my view, the applicant’s conduct here falls between the conduct referred to in Acreman and in O’Brien. Acreman was obviously a very senior officer and sought to use the information gained from the QPS computer for his own individual purposes unrelated to policing activities. O’Brien, in the other hand, obtained information and disclosed it to third parties which is clearly an aggravating factor.

The Applicant’s Submission

  1. [24]
    The applicant submits that I should have regard to not only the applicant’s service, but also the consequences of the demotion and the pay reduction over the past nearly 2 years. With demotion comes humiliation amongst his peers and having to work under those who were once his junior. There is also the awareness of the gossip within the QPS concerning the disciplinary proceedings taken against him. One cannot be too critical of that if the disciplinary proceedings were necessary and appropriate as was the case here.
  2. [25]
    The applicant submits that since his demotion, he had been transferred to another police station in charge of watch house duties and then redeployed to work as a general duties police officer within the Redcliffe Police Division. His conduct over the past two years has been exemplary and although he may well have been able to apply for a Sergeant’s position, the very existence of this review proceeding would have, in all probability, thwarted any prospect of success in that regard.
  3. [26]
    I accept that the disciplinary proceeding, has caused the applicant to review his understanding of confidential information and procedures and it is submitted, and I also accept, that he has completed online learning products in relation to information access and ethical decision making, which has refreshed and reinforced his understanding of QPS policies and procedures. Another matter to be take into account, in line with what has occurred in his operational duties since these proceedings first commenced is that his career has been in limbo and unable to be progressed which, irrespective of the decision made today, is to his disadvantage.
  4. [27]
    In my view, using Acreman and O’Brien as guidelines, bearing in mind of course that each case must be considered on its own merits, I have come to the conclusion that because:
    1. (a)
      not all of the original particulars of official misconduct have been substantiated;
    2. (b)
      of the applicant’s years of service with no previous history of misconduct;
    3. (c)
      there was no personal gain or ill-intent from accessing the information;
    4. (d)
      the information accessed was not disclosed to third parties;
    5. (e)
      the information itself was not highly sensitive intelligence reports; and
    6. (f)
      of his insight into his own conduct and the manner he as addressed that in the past 2 years;

a demotion in rank is not warranted.

  1. [28]
    However, given the seriousness of the matters which have been substantiated I have come to the conclusion that a significant reduction in pay point is an appropriate sanction. I therefore propose to set aside the sanction imposed by the Assistant Commissioner and impose a sanction of reduction in pay point from 3.6 to 3.1 for a period of 2 years from 14 December 2017 and then a reduction in pay-point from 3.6 to 3.5 from 14 December 2019. To be clear at the conclusion of that period the applicant be restored to pay-point 3.5. To not do so would mean that the applicant would continue to be penalised for his conduct as it would take him another 4 years to return to this level, unless he is promoted to senior sergeant.
  2. [29]
    These orders will take effect immediately on publication.

Footnotes

[1] Crime & Corruption Act 2001, s.219A.

[2]Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95, [15].

[3] Aldrich v Ross [2001] 2 Qd R 235, 257-258.

[4] Frazer v Assistant Commissioner Condon [2016] QCAT 271, [48]; Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96.

[5]  [2019] QCAT 127.

[6]  Ibid.

Close

Editorial Notes

  • Published Case Name:

    Spencer v Assistant Commissioner McCarthy & Anor

  • Shortened Case Name:

    Spencer v Assistant Commissioner McCarthy

  • MNC:

    [2019] QCAT 375

  • Court:

    QCAT

  • Judge(s):

    Member Oliver

  • Date:

    31 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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