Acreman v Deputy Commissioner Brett Pointing
[2018] QCAT 321
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- Unreported Judgment
- Acreman v Deputy Commissioner Brett Pointing[2018] QCAT 321
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Acreman v Deputy Commissioner Brett Pointing[2018] QCAT 321
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:
the tribunal directs that:
4:00pm on 8 October 2018
4:00pm on 22 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 593 Hoocken v Pointing [1993] 2 Qd R 659 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Murray v Deputy Commissioner Stewart [2011] QCAT 583 Peat v Lin & Ors [2004] QSC 219 Police Service Board v Morris (1985) 156 CLR 397 Yabsley v Keating [2015] QCAT 258 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | T E Schmidt instructed by Gilshenan & Luton Legal Practice |
Respondent: | C J Capper of the Queensland Police Service Legal Unit |
REASONS FOR DECISION
- [1]
- [2]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
- [3]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.
- [4]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.
- [5]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.
- [6]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?
- [7]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]
- [8]The standard of proof to be applied in assessing the evidence is commonly referred to as the ‘Briginshaw standard’ or the common law standard of proof ‘on the balance of probabilities’.[10] The Tribunal must also be satisfied and find accordingly that the conduct complained of is police misconduct.[11] ‘Misconduct’ is conduct that, if proven, is disgraceful, improper or unbecoming an officer; or shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer.[12]
- [9]In this matter, the material before me includes the material that was before the decision-maker when he made the reviewable decision (the ‘Section 21 material’[13]). There is also fresh evidence filed by Mr Acreman including written submissions, his sworn affidavit and a report prepared by a Chartered Accountant in relation to the financial impact on his earnings as a result of the demotion in rank and pay points.[14]
What are the matters of alleged misconduct?
- [10]The matters of alleged misconduct, as they appear in the Notice of Formal Finding are now set out below:
Matter 2:
That between 26 July 2016 and 28 July 2016 at Brisbane your conduct was improper in that you:[15]
- (a)accessed official and confidential information contained within the Queensland Police Service computer system without an official purpose related to the performance of your duties as a member of the Queensland Police Service
[Section 1.4 of the Police Service Administration Act 1990, section 9 (1) (f) of the Police Service (Discipline) Regulations 1990 and section 16 of the 2012/33 Standard of Practice]
Further and better particulars:
Investigations have identified:
- On 27 July 2015 whilst on duty you accessed QPRIME but were unable to identify [the complainant] in this matter;
- After work that day you attended [at the address of the incident] for the purpose of obtaining the registration number of the motor vehicle driven by [the complainant];
- The motor vehicle was not present at those premises and you then spoke to [the resident] who was at the address, identified yourself as a police officer and made further inquiries relating to the vehicle and you were directed to an address around the corner;
- You then attended that address, observed [the complainant’s] motor vehicle and recorded the registration details;
- On Tuesday 28 July 2015 whilst on duty you again accessed QPRIME, entering the ‘Reason for System Access’ was ‘Intelligence inquiry – intel submission – aggressive and violent behaviour of resident of [the complainant’s address]; and
- You never submitted the intelligence submission and the check did not relate to your official duties.
Matter 3:
That between 11 January 2016 and 16 January 2016 at Brisbane your conduct was improper in that you:
- (a)accessed official and confidential information contained within the Queensland Police Service computer system without an official purpose related to the performance of your duties as a member of the Queensland Police Service; and
- (b)emailed the official and confidential information to his private email address without authority or official purpose related to the performance of his duties as a member of the Queensland Police Service.
[Section 1.4 of the Police Service Administration Act 1990, section 9 (1) (f) of the Police Service (Discipline) Regulations 1990 and section 16 of the 2012/33 Standard of Practice]
Further and better particulars:
Investigations have identified that you as a Detective Inspector performing duties with the Crime and Corruption Commissions you had access to the Queensland Police Service, Ethical Standards Command (ESC) File Server (L Drive) and Client Service System (CSS). On 12 January 2016 whilst on duty you:
- Accessed the ESC L Drive on the Queensland Police computer system;
- You opened the folder named 140452_[redacted]_TOLSHER, which related to the internal investigation of the complaint made against you by [the complaint];
- The folder contains four files titled, [redacted] statement (pdf file), Email (pdf file), Facts (Word file) and Statement from [redacted] re incident (pdf file);
- Without authority you forwarded the folder containing the four files to your private email address; and
- You later deleted the files from you [sic] private email address.
What does Mr Acreman say about matter two?
- [11]Mr Acreman says that matter two cannot be substantiated. He says that the respondent has misconstrued the nature and extent of his (Mr Acreman’s) duties as a police officer.[16] Mr Acreman says that he has and may exercise all of the powers of a constable at common law or under any other Act or law.[17] Mr Acreman relies on the legislative scheme that governs the QPS and its officers. Mr Acreman refers to relevant sections of the Police Service Administration Act 1990 (Qld) (‘PSA Act’) and submits that the duties of an officer extend to the preservation of peace and good order in all parts of the State and to the protection of the community from the unlawful disruption of peace and good order from the actions or omissions of persons and from the commission of offences generally.[18] Mr Acreman submits that a police officer is always on duty.[19]
- [12]Mr Acreman says that there is no evidence before the Tribunal as to ‘best practice’, nor any evidence which purports to restrict the powers or duties of a police officer in relation to the discharge of their office such as a direction.[20] Mr Acreman says there is no evidence before the Tribunal which purports to show the Commissioner of Police has issued any form of direction or policy which restricts his official duties in this case.[21] Mr Acreman submits that there is no such restriction on the duties of a police officer and as an officer, he was always entitled to make inquiries about the complainant for the purposes of determining whether or not there was a legitimate need for making an intelligence submission or otherwise flagging him (the complainant) on QPRIME. Mr Acreman says that that duty was not restricted merely because of his rank or substantive position in the CCC.[22]
- [13]Mr Acreman also provides an explanation for the inquiries conducted by him relating to matter two.[23] Mr Acreman says, as part of his duties, is an obligation to follow up on suspicions that the complainant may have been involved in a prior assault matter and more importantly, he had concerns that the complainant’s partner may be a victim of domestic violence. Mr Acreman says that his duty as a police officer includes conducting relevant checks to follow up on suspicions. Although Mr Acreman accepts that he did not proceed with an intelligence submission about the complainant, he (Mr Acreman) says that he had a duty to follow up on his suspicions and more importantly he was concerned with his obligations as a police officer to follow up and ensure that he was not negligent by doing nothing after having reasonable concerns.[24] Finally, Mr Acreman says that the onus of proof to the requisite standard on the balance of probabilities has not been supported by any evidence.
- [14]At the oral hearing, Mr Schmidt on behalf of the applicant and in addressing the further particulars of matter two, namely particular number three, accepts that Mr Acreman identified himself as a police officer when he spoke to the resident about the complainant’s motor vehicle registration number. Mr Schmidt says that Mr Acreman attempted to look the complainant up on the QPS system at his next shift. Mr Schmidt says that whether or not Mr Acreman was on or off duty is irrelevant because he had formed a view that there may be a need to lodge an intelligence submission. Mr Schmidt says that the fact that an intelligence submission was never made is immaterial. Mr Schmidt says that the reason why Mr Acreman accessed QPRIME is relevant and Mr Acreman was clearly acting within his official capacity as a police officer.
What does Mr Acreman say about matter three?
- [15]Mr Acreman says that in order for matter three to be substantiated the respondent must prove that he (Mr Acreman) at the time of the access and the emailing, did not hold a reasonable or mistaken belief the folder was not confidential.[25] Mr Acreman says that his access of the folder was accidental. Mr Acreman submits that he had a mistaken belief the folder was a publicly accessible folder within the QPS. Mr Acreman says that such a belief is consistent with his subsequent actions and complaint to his supervisor Geoffrey Sheldon.[26] In particular Mr Acreman believed the folder was not a restricted access folder and as submitted this ‘means it inherently could not be a confidential folder’.[27] Mr Acreman says the respondent has the onus of proving a mistaken belief on behalf of the applicant was either not honest or reasonable.[28] Mr Acreman submits that there is no such evidence to negate his belief the files were publicly accessible (within the QPS).[29] Mr Acreman says that at the time of accessing the folder and emailing, he did not know the content of the folder was confidential in nature, due to the manner in which he discovered it. He says matter three as charged cannot be proven in respect to this element, and should be unsubstantiated.[30]
- [16]At the oral hearing, Mr Schmidt on behalf of Mr Acreman says that the evidence of the honest and reasonable belief held by Mr Acreman was that the information accessed by him on the QPS system was publically accessible by every officer in the QPS. Mr Schmidt says that if the document or information is no longer confidential then the charge cannot be made out because confidentiality is a feature of the charge. Mr Schmidt says that Mr Acreman was concerned about why the documents were not disclosed to him. Mr Schmidt says that Mr Acreman had already been interviewed by the QPS and with his CCC experience he knew that all of the allegations should be put to him. Mr Schmidt says that the documents viewed by Mr Acreman on the QPS system contained information that had not be given to him.
- [17]Mr Schmidt refers to the status of the complaint as being finalised at the time that he (Mr Acreman) viewed the documents on the QPS system. Mr Schmidt says that Mr Acreman was notified on 10 November 2015 by the CCC that his secondment had been rescinded and, amongst other things, that the QPS had completed an investigation into the allegations.[31] Mr Schmidt says that at the time of accessing the information on the QPS system Mr Acreman thought the investigation had been finalised and Mr Acreman was waiting for service of the notice of the disciplinary proceedings. Mr Schmidt submits that on a proper examination of the facts, Mr Acreman’s state of mind believed that confidentiality had been waived so he could no longer access confidential documents because the documents were no longer confidential.
Matter two – Tribunal findings
- [18]It is noncontroversial that Mr Acreman accessed the QPS QPRIME computer system when he was on duty but could not find any information about the complainant. It is also noncontroversial that Mr Acreman went to (what he thought was) the complainant’s address and spoke to the resident at the address about the complainant. Mr Acreman obtained the complainant’s motor vehicle registration number and at work the following day accessed QPRIME again. Mr Acreman did not submit an intelligence submission about the complainant.
- [19]Mr Acreman and the complainant were involved in an incident. Mr Acreman was not on duty at the time of the incident. Mr Acreman gave evidence about the incident during his interview with the QPS. Mr Acreman’s evidence is that he grabbed the complainant by the throat in response to being ‘physically grabbed’ by the complainant. Mr Acreman said that ‘he’s literally grabbed me here, I’ve pushed him back…’ and said that the complainant has ‘attacked’ him (Mr Acreman) again.[32] Mr Acreman’s evidence is that he was attacked by the complainant more than once. Mr Acreman’s evidence is that he responded to the complainant by grabbing his throat. Mr Acreman said his reaction to ‘grab [the complainant] by the throat’ was, as stated, ‘spontaneous it wasn’t considered’.[33]
- [20]Mr Acreman accepted during his QPS interview that the complainant’s girlfriend was present during the incident when the complainant asked him to leave.[34] Mr Acreman said that before he left the complainant’s property (after the physical altercation with the complainant), he approached the complainant and identified himself as a Detective Inspector of police and gave the complainant (after being asked for it) his badge number.[35] Mr Acreman said that there was ‘no necessity’ for the complainant to assault him and his use of force against the complainant was ‘self-defence’.[36]
- [21]Mr Acreman’s evidence is that he was concerned that the complainant would do this again to the ‘very next person who comes along’ and said that this is the reason for him (Mr Acreman) going back to speak to the complainant.[37] Mr Acreman’s evidence is that after the incident, from a personal point of view, he had no intention of taking the matter further and said that the matter ‘was finalised’.[38]
- [22]Mr Acreman also gave evidence during the interview about why he suspected the complainant’s girlfriend was a victim of domestic violence. Mr Acreman said that the way she was behaving was, as stated by him, ‘like the, the placating wife’.[39] Mr Acreman said that he discussed the incident with his wife at the time. Mr Acreman said that he thought that there was a possibility that if the complainant had done that before there is probably an assault complaint either that he has made against somebody else referring to, as stated, ‘you’ve got the my word against you situation’.[40] Mr Acreman said that he has an obligation to provide that evidence should it be required. Mr Acreman said that he was not, at the time, planning on taking the matter further until the next day when he had thought about the matter.[41] The relevant extract from the transcript of interview is as follows:
Um so the next day ah having thought about all that I’m going to do some checks on this and find out who the hell he is and find out [sic] has he attacked anybody else where my evidence is going to be important or has he in fact been a victim in which case some poor bugger’s probably been charged and that person needs to know that I can give this evidence also. Um and also the D-V aspect were the two things I was actually concerned about that I, I felt an obligation to follow up on because I didn’t know his name, I didn’t have the rego of the car I had nothing like that. I went to, I actually made some notes in my diary too incidentally um which I can show you now of the incident…[42]
- [23]Mr Acreman’s evidence about his actions the day after the incident is also contained in the transcript of interview. Mr Acreman said that the next day he went to firearms training and told his story to some of the police there. When he got back from firearms training he, as stated, ‘jumped on the computer’ to identify who the complainant was.[43] Mr Acreman’s evidence is that nothing came up on the computer check so he decided at the end of the day ‘on [his] way home’ he would see if he could get the complainant’s vehicle registration number.[44] Mr Acreman said that it was about 4:30pm when he drove past the address and the car was not there. He approached a lady standing on the balcony of the house and said there was ‘quite a bit of conversation’ with the lady.[45] Mr Acreman said that the lady told him the complainant lived around the corner so he drove around the corner and saw the vehicle parked in the driveway. Mr Acreman said that he got the vehicle’s registration number. The next day at work Mr Acreman conducted some further checks on the QPS computer system.[46] The relevant extract from the transcript of interview is as follows:[47]
So the next day when I’ve come to work I’ve run the rego through its come up to this [the complainant] and then I’ve done the checks that I had every intention of doing which was to find out the violent history of this fellow….I was actually surprised that I couldn’t find anything that actually corresponded there was no violence convictions, there was no D-V history the things that I expected to see weren’t there. Um there was no mental, there was a mental health record but that was a long time ago. So pretty much my inquiries there left me with the conclusion that okay well probably there’s been no reports he hasn’t done that before which again leaves me mystified as to what the hell set him off on that particular day just because I didn’t want to buy his oven to react the way he did. And then at that point I decided that righteo best thing I can do is just to put a flag on Q-Prime and even the flag was just going to basically be a this guy could react um aggressively without warning without provocation. [Teeyana] is our intel officer in my team she was sick that day ah I actually wrote in my diary flag to be put on when T returns to work um which I’ll show you…it turned out Teeyana was sick for basically the whole week and to be honest with you I just then totally forgot about it probably because I hadn’t found what I expected to find so the, importance of what I was doing seemed to have then gone by the wayside because I was so sure that I was going to be doing a statement in support of somebody somewhere along the line in relation to his behaviours. And then I literally did just forget totally about it until I got a phone call from you and went oh…So in relation to my access to the QPS system I believe I was duty bound to make appropriate inquiries to ascertain who the person was that had displayed that level of violence… [n]ot for my personal interest but in the interests of justice for the person who may or may not have been charged or whether or not he was a victim of an assault to put context around it….there was no personal gain or benefit or even personal interest really in relation to it. It was because I felt an obligation as a police officer to be doing something in relation to his conduct and behaviour.
- [24]Mr Acreman gave evidence when questioned during the police interview about why he did not submit an intelligence report. Mr Acreman maintained his evidence that Teeyana (who he was going to ask to make the submission) was sick for the entire week and by the time she came back he had forgotten about the whole thing.[48] When questioned about why he did not make the submission himself, Mr Acreman said that he did not know how.[49] Mr Acreman said that he has not done an intelligence submission. When asked if it is normal process to get someone else to help him with a submission, Mr Acreman said ‘yeah absolutely, QPRIME and I are not good bedfellas’.[50]
- [25]It is open for me to find on the evidence that Mr Acreman and the complainant were involved in an incident on private property. It is open for me to draw the reasonable inference that the incident was serious and unprovoked by Mr Acreman because the complainant physically attacked Mr Acreman more than once. Mr Acreman responded to the complainant’s physical attacks in self-defence by physically pushing the complainant and at one point Mr Acreman, in response to being attacked by the complainant a second time, grabbed the complainant’s throat.
- [26]Other than Mr Acreman and the complainant, the only people present during the incident were Mr Acreman’s wife and the complainant’s female partner. Mr Acreman was not on duty at the time of the incident and did not know the complainant prior to the incident. It is open for me to find on the evidence that Mr Acreman was acting in his private capacity when he defended himself from the complainant. It is also open for me to find on the evidence that this was an incident that police would otherwise be called to. This is because there was an unprovoked physical attack by the complainant on Mr Acreman and Mr Acreman was acting in his private capacity when he defended himself.
Is a police officer always on duty?
- [27]Police officers clearly have both common law and statutory powers that come with the office, but their functions are managed by the service and an officer’s functions are subject to the orders and directions of the commissioner.[51] A police officer’s functions are prescribed under the PSA Act. The PSA Act establishes the QPS that is made up of police officers, staff members and recruits. Relevantly s 2.3 sets out the functions of the police service that include, for example, the preservation of peace and good order, the protection of the communities in the State and all members, the prevention of crime, the detection of offenders and brings offenders to justice and upholding of the law generally.[52] Section 3.2(3) of the PSA Act provides that an officer has and may exercise the powers of a constable at common law or under any other Act or law. Section 3.3 requires a person to take an oath of office before he or she can begin to perform the duties of an officer.
- [28]I accept the respondent’s submission that a police officer is not a public servant in the ordinary sense of the word, but rather acts to serve the Crown.[53] This submission is fortified by the High Court decision in Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors.[54]
- [29]In Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors, the High Court in determining whether the Government could be reimbursed for money paid to a police officer following a motor vehicle accident, considered the relationship between the Government and the relevant police officer. McTiernan J observed that the Crown and the policeman were not master and servant in the legal sense. Further, the police officer was bound by statute to serve the Crown in the public office of a constable and as a member of the force. McTiernan J said:
…the Crown and the policeman were not master and servant in the legal sense: the members of the police force of New South Wales are engaged in public service: they are organized by the Executive Government of New South Wales as a civil force responsible for maintaining public order: the policeman was bound by an engagement having statutory force to serve the Crown in the public office of a constable and as a member of this force: and the relations of its members, as such, with the Crown are in no wise private or domestic.[55]
- [30]In his judgement, Dixon J provided guidance about a police officer’s duties and more importantly established the proposition that the law places upon a police officer, in serving his or her duties, a personal responsibility of judgment and action. The relevant extract from Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors is as follows:
…the general relation between the Crown and a member of the police force is not that of master and servant. In my opinion this consequence does not follow. In most respects a member of the police force is subject to the direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organisations military and civil, public and private. It is only when in the course of his duties involving the liberty or rights of the subject that the law places upon him a personal responsibility of judgment and action.[56]
- [31]In Peat v Lin & Ors[57] the Supreme Court considered the capacity for an off-duty officer to act as a constable. Peat’s case was about the liability of the State (vicariously) for alleged negligence of three off-duty police officers in failing to act during a nightclub incident resulting in injuries to the plaintiff. A single Justice of the Supreme Court considered off-duty conduct of an officer. Atkinson J observed that if an off-duty officer does act in the capacity of a constable when off-duty, he or she is entitled to the protection offered by the PSA Act. Atkinson J recognised relevant authorities such as Hocken v Pointing[58] whereby Williams J said that ‘the oath taken by a police constable…in essence requires a police officer to be on duty at all times’.[59] Atkinson J in observing what Williams J said about an off-duty officer, considered that that proposition is ‘stated rather too widely’.[60]
- [32]In Peat’s case, Atkinson J said that a police officer has a duty to the public but an off-duty police officer is not required to intervene in any situation to which police who are on duty might be called. Further, this duty to the public to intervene does not justify a police officer using his or her powers or office when acting in a private capacity. Atkinson J also considered whether a police officer has a duty in tort. Atkinson J, in considering the facts in Peat’s case, said any duty of the off-duty police officer was to the public at large and not to individual members of it.[61] The relevant extract from Peat’s case is as follows (footnotes emitted):
There appears little doubt that an off-duty police officer may act in the capacity of a constable when off-duty. If he or she does so, then he or she is entitled to the protection offered by s 10.5(4) of the PSA. A police officer may indeed be considered under a duty to act as a constable even when off-duty in certain situations. As Davidson J held in Horne v Coleman:
“… whether a constable is in uniform, or not, and whether he is outside his ordinary working hours, or not, he has a continuing duty to prevent, or assist, in preventing, disturbances, or breaches of the peace.”
Relying on this authority, Williams J observed in Hocken v Pointing that “the oath taken by a police constable…in essence requires a police officer to be on duty at all times.” In my view, that proposition is stated rather too widely. A police officer has a duty to the public which cannot be discarded just because the police officer is not officially on duty. This does not, however, require an off-duty police officer to intervene in any situation to which police who are on duty might be called. Nor does it justify a police officer using his or her public powers or office when acting in a private capacity… [62]
- [33]I find Peat’s case helpful in considering the submissions advanced by Mr Acreman in this matter as to whether a police officer is always on duty. I find that an off-duty police officer does have a duty to the public to ensure the protection of public safety. As held in Peat’s case, an off-duty officer is not required, however, to intervene in any situation to which police who are on duty might be called. The duty to act when off-duty will therefore depend on the particular circumstances that the off-duty officer finds himself or herself in. More importantly, whether the particular circumstances justify appropriate action being taken by the off-duty officer to protect the public and where such action taken is afforded protection under the PSA Act.
- [34]As observed in Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors, the law places a personal responsibility of judgment and action on a police officer in serving his or her duties. Clearly this statement would apply to all police officers whether on duty or off duty. A police officer is regularly required to exercise his or her judgment about a situation and whether the particular circumstances justify appropriate action. The question of whether the particular circumstances justify an off-duty officer to take appropriate action to protect the public is one of fact and degree because it requires an exercise of judgment and action. More importantly, the off-duty officer must exercise his or her judgment in order to be satisfied that the circumstances justify appropriate action to protect the public.
Did Mr Acreman have a duty to make inquiries about the complainant?
- [35]Mr Acreman accessed the QPS QPRIME computer system because he was concerned that the complainant would attack someone else. He was also concerned about the complainant’s partner. More importantly, Mr Acreman was concerned that the complainant, as stated by Mr Acreman during his police interview, ‘could react aggressively without warning, without provocation’[63] and that the complainant’s partner was a victim of domestic violence. I accept Mr Acreman’s evidence that he was concerned about the complainant’s behaviour.
- [36]I do not accept, however, Mr Acreman’s submission that he had a duty as a police officer to follow up on his suspicions about the complainant after the incident. It is open for me to draw the reasonable inference that Mr Acreman’s suspicions or concerns about the complainant were formed during the incident with the complainant because Mr Acreman acted in self-defence to the complainant’s aggressive behaviour. I have found that Mr Acreman acted in a private capacity when he defended himself. I have found that the circumstances of the incident were such that police would ordinarily be called for assistance to the incident because there was a serious and unprovoked attack on Mr Acreman. Mr Acreman did not report the incident to police immediately after the incident or the following day. Because Mr Acreman held concerns about the complainant that arise from a private matter, there was no official purpose for the inquiries about the complainant.
- [37]It is open for me to find that although Mr Acreman was accessing information on the QPS system during his working hours there was no official purpose for his inquiries. This is because the circumstances giving rise to Mr Acreman’s concerns that he says required him to conduct further inquiries about the complainant arise from a private matter. It is open for me to find on the evidence 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 member of the QPS. Mr Acreman accessed information on the QPS computer system to search for information about the complainant. Mr Acreman also made inquiries about the complainant by speaking to a lady at the address where he thought the complainant lived. Mr Acreman also accessed the QPS QPRIME computer system after obtaining the complainant’s vehicle registration number, to search for information. I find matter two to be proven to the required standard.
- [38]I am satisfied that Mr Acreman’s conduct for matter two is misconduct because his actions in accessing official and confidential information contained within the QPS computer system was not for an official purpose related to his duties as a police officer or his duties as Detective Inspector on secondment to the CCC and does not meet the standard of conduct the community reasonably expects of a police officer.
Matter three – Tribunal findings
- [39]It is uncontroversial that Mr Acreman read the documents on the QPS computer system. The documents contained information about the incident involving Mr Acreman and the complainant. Mr Acreman had access to the documents by logging on to the QPS computer system. It is also uncontroversial that Mr Acreman emailed the documents to his personal email account. Mr Acreman later deleted the email.
- [40]I accept Mr Acreman’s evidence that when he accessed the folder containing the four documents on the QPS computer system he thought that the information accessed by him was accessible by anyone in the QPS. During an interview with police about matter three, Mr Acreman maintained his evidence that he believed the documents on the QPS system could be seen by ‘anyone’.[64]
- [41]Mr Acreman’s evidence about his belief that the documents could be accessed by anyone in the QPS is also supported by the evidence given by his supervisor, Mr Sheldon. Mr Sheldon gave evidence in a police interview about a conversation he had with Mr Acreman concerning the accessing of the four documents. Mr Sheldon’s evidence is that Mr Acreman found the documents relating to his investigation on the QPS computer system and that Mr Acreman clicked on the folder and found four documents all about him (Mr Acreman) and his investigation.[65] Mr Sheldon’s evidence is that Mr Acreman said ‘If I can come across them, who else has been reading all about me’.[66] Mr Sheldon’s evidence is that he told Mr Acreman not to look at the documents and said ‘you may find yourself in more trouble’.[67] The relevant extract from the transcript is as follows:
Acreman said, “I was looking for my personal folder on the file server and I couldn’t find it. I saw in 2015 a folder with the name ‘Tolsher’ and I thought maybe that was where I had stored the documents regarding that internal I had done on him. I clicked on the folder and there’s four document, all about me and my current investigations. If I can come across them, who else has been reading all about me?”.
I said, “What sort of documents?”
Acreman said, “Well there’s a statement there from the bloke that’s making the complaint against me, and its different from the allegations that were put to me”.
I said “What do you mean?”
Acreman said, “Well that statement is different to the allegations that were put to me. I reckon it’s an earlier version and has been ‘massaged’, so goodness knows what the one will look like that gets put in my disciplinary brief. And I want to know if his inconsistencies have been put to him and if so by whom and what was his explanation for the differences?”
I said, “So, have you found your own disciplinary file in a drop folder or something?”
Acreman said, “Yeah, and I’d like to know who else has had a read of it. So much for my privacy.”
I said, “What else is in there? Is it the whole thing?”
Acreman said, “There’s other document about my investigation.”
I said, “Well, I wouldn’t go looking at them or you may find yourself in more trouble.”
Acreman said, “Bullshit. You can’t expect me to no have a look at them. They are about me and have an enormous impact upon my career. Why can’t I look at them? And who else has been looking at them? Besides, if I came across them I’m not doing anything wrong if I have access to them.”
I said, Geoff, by your version of your current hurdle you’ve done nothing wrong, yet you find yourself in this position. I think you’ll find that, once you opened the first one and found it wasn’t your files, you shouldn’t go opening the others, and that would be the QPS attitude.”
Acreman said, “That’s ridiculous. They relate to me and it’s different to the allegations that were put to me….[68]
- [42]It is open for me to find on the evidence that Mr Acreman did form an honest 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 access to the QPS computer system. I also accept 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 Mr Acreman was waiting for the notice of the disciplinary proceedings. The letter sent by the CCC to Mr Acreman on 10 November 2015 states that ‘they have completed an investigation into these allegations and have found that the following allegations were substantiated.’[69]
- [43]I do not accept, however, Mr Acreman’s submissions that it was reasonable for him to form the belief that confidentiality of the four documents had been waived at the time of access (by him) and the emailing. Further, I do 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, the charge cannot be made out, because confidentiality is a feature of the charge.
- [44]I accept the respondent’s submission that at all relevant times Mr Acreman was accessing a secure QPS computer system by means of a password and subject to the relevant policies and directions of the Commissioner of Police including the Information Management Manual. I also accept the respondent’s submissions that in accessing the QPS computer system there is a need to maintain confidentiality of the information contained within the system.
- [45]Relevantly s 4 of the Information Management Manual 4.13 (system access control) provides that certain system access principles underpin the policy. Relevantly, s 4 provides, for example, access to information and information systems should be on a ‘need-to-know basis’ meaning only if required to perform their duties; personnel are not entitled to see or obtain information merely because it would be ‘convenient for them to know or by virtue of their status, rank, office or level of authorised access’.[70] Further, access to information and information systems should be on a ‘least privilege basis’ meaning that QPS personnel are assigned the minimum set of roles required to perform their authorised duties.[71]
- [46]I also accept the respondent’s submission that information stored on the QPS system is a public record maintained by the QPS in accordance with its obligations under s 7 of the Public Records Act 2002 (Qld). The QPS is responsible for ensuring the safe custody and preservation of records in its possession by virtue of s 8 of the Public Records Act. I also accept the respondent’s submission that Mr Acreman as an experienced police officer and an Inspector of police should be aware of the relevant QPS policies concerning the security and confidentiality of information contained within the QPS computer system. It is open for me to find that the four documents contained within the folder that Mr Acreman accessed on the QPS computer system were confidential and at all times remained confidential.
- [47]The evidence about the information accessed by Mr Acreman is unrefuted. Mr Acreman accessed a folder titled “L:Drive” on his computer. This enabled him to open another folder titled “140452_[complainant’s partner’s name]_[complainant’s name]_[Tolsher]”. This folder clearly related to the complainant and the incident concerning Mr Acreman and the complainant that resulted in an investigation by the QPS. When Mr Acreman accessed the computer the QPS disciplinary proceedings were ongoing. Mr Acreman does not dispute that he recognised the documents within the folder as containing information relating to himself and the complaint because he knew the name of the complainant and the complainant’s partner that appeared as the relevant file names for the documents. Mr Acreman does not dispute that he accessed the information and read the information.
- [48]Mr Acreman says that he opened the folder to see what he believed everyone could read and saw that it contained documents that related to the complaint. Mr Acreman says that ‘these documents were clearly advantageous to my defence in that they provided a different version of events to what I had been accused’.[72] Mr Acreman says that he knew the details of the complaint from the police interview and saw that the files contained differing allegations which in some cases were inconsistent with what was put to him (by police).[73] Mr Acreman says that there were no other documents in the folder to give any indication that this was an investigation file and there were no references to indicate the fileserver was under the management of the Ethical Standards Command (‘ESC’). Mr Acreman says that he suspected that the documents were ‘unsecure and available for anyone to read’ and he was ‘concerned’ that the documents had been left in this folder in order to keep them from the investigators. Mr Acreman says:
My concerns in this regard was based on my [redacted].
At the time of finding these documents I also received a phone call from the hospital to advise that a medical procedure booked in for the next day had been brought forward and that I needed to commence pre procedure routine which could not be undertaken at work and I needed to finish duty.
I was concerned that the documents were vulnerable to being easily deleted without any evidence they had existed or as to what the content of the documents was. [Redacted].
I made a conscious decision to secure the documents from being deleted by using the external email system which captures documents. To ensure I did not disseminate the documents to anyone, I sent them to myself.
[Redacted].
[Redacted].[74]
- [49]Mr Acreman’s evidence is that he emailed the documents to his private email account on Tuesday, he was on sick leave on Wednesday and on Thursday he again accessed the Linked Docs drive to screenshot the documents in order to prove that the documents were in the folder. Mr Acreman says that his supervisor, Mr Sheldon, was not in the office that day (on Thursday). Mr Acreman says that the individual documents were not opened by him on this occasion. On Friday, Mr Acreman reported his concerns to Mr Sheldon.[75] Mr Acreman later deleted the email containing the information.
- [50]It is open for me to find that the information contained within a folder on the QPS computer system was clearly at all times confidential information that was related to a complaint and QPS investigation about Mr Acreman. The information contained within the folder on the QPS computer system was not related to the performance of Mr Acreman’s official duties.
- [51]It is also open for me to find on the evidence that Mr Acreman was at all times accessing information that was contained within the QPS computer system and that the information is afforded protection by QPS internal policy and the law. The information contained within the folder accessed by Mr Acreman was at all times confidential and secure information.
- [52]I accept the respondent’s submission that once Mr Acreman accessed the L:Drive on his QPS computer and saw the relevant investigative folder relating to the complainant, Mr Acreman should have properly withheld from making any further enquiries and reported the matter to a relevant supervisor. Further, once Mr Acreman proceeded to open the individual documents and after reading the information that was clearly relevant to the complaint and the incident, he should have immediately identified the confidential nature of the material contained therein. I accept Mr Acreman’s submission that the information contained within the folder was relevant to the complaint and the QPS investigation but that information was confidential and was not related to Mr Acreman’s performance of his duties as a police officer.
- [53]There is no evidence before me that Mr Acreman made any enquiries about the documents that clearly related to the complaint before reading the documents and emailing them to his private account. I have found that the documents contained within the QPS computer system were at all times confidential documents notwithstanding Mr Acreman’s concerns that other people within the QPS may have access to them. Indeed the relevant information policy contemplates that QPS staff will be given access to certain information where required to perform his or her duties. I am not satisfied to the required standard that it was reasonable for Mr Acreman, having formed the honest belief that the documents were accessible by anyone in the QPS, to believe that confidentiality had been waived and that he could access the information and take steps to secure the information. [Redacted].
- [54]I find 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. I find that matter three is substantiated. I am also satisfied that Mr Acreman’s conduct is misconduct because he accessed official and confidential information on the QPS computer system without an official purpose and without authority emailed the confidential information to his private email account. Mr Acreman’s conduct was improper and does not meet the standard of conduct the community reasonably expects of a police officer.
Sanction
- [55]Although Mr Acreman does not contest the sanction on matter two I must in exercising my powers on review arrive at the correct and preferable decision having regard to my findings, any mitigating circumstances and the purpose of discipline – to ensure the ‘maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency’.[76]
- [56]It is well settled law that the object of disciplinary proceedings is to ‘protect the public, to maintain proper standards of conduct … and to promote the reputation of that body. The object … is not to punish or exact retribution’.[77] The objects in the Police Service (Discipline) Regulations 1990 (Qld) refer to appropriate standards of discipline being maintained in the QPS to protect the public, uphold ethical standards within the QPS and to promote and maintain confidence in the QPS.[78]
- [57]I am satisfied that the sanction of reprimand for matter two is the correct and preferable decision taking into consideration the purpose of discipline, my findings about matter two and Mr Acreman’s unblemished record as a police officer. I have made relevant findings in this matter about the duties of a police officer, in particular whether an officer is on duty at all times. I have found that an off-duty officer does have a duty to the public to ensure the protection of public safety. I have found that the question of whether the circumstances justify an off-duty officer to take appropriate action to protect the public is one of fact and degree because it requires an exercise of judgment and action.
- [58]I accepted Mr Acreman’s evidence that he accessed the QPS QPRIME computer system because he had concerns that the complainant would behave in an aggressive manner towards other people and he also had concerns about the complainant’s partner. I found, however, that there was no official purpose for Mr Acreman to access the information and to make inquiries about the complainant because his concerns about the complainant were related to a private matter. I found that Mr Acreman was acting in his private capacity when he defended himself. I also found that the incident was a matter that police would otherwise be called to because it involved a serious unprovoked attack on Mr Acreman. I am satisfied that a sanction of reprimand is correct and preferable in this matter because it does reflect the seriousness of the allegations and all of the mitigating circumstances, such as Mr Acreman’s unblemished career as a QPS officer and Mr Acreman’s evidence accepted by me that he accessed the information because of his concerns about the complainant’s behaviour. I order that the decision of the respondent made on 14 December 2017 in relation to sanction for matter two is confirmed.
- [59]In relation to matter three, Mr Acreman and the respondent should be given an opportunity to file further submissions about the appropriateness of any sanction to be imposed by me in view of my findings about Mr Acreman’s conduct. In particular, the further written submissions should address whether a demotion in rank is still appropriate and if so, the period of time for the demotion. Further, the availability of any courses or other professional development training and the duration of such courses or training that Mr Acreman can complete to ameliorate any community concerns arising in this matter about the accessing of confidential and secure information on QPS computer systems. More importantly, training about the QPS’ legal obligations for the keeping of public records to ensure their safe custody and preservation. This is particularly relevant given that Mr Acreman has maintained in giving his evidence in relation to the allegations that [redacted]. I will make directions accordingly.
Non-Publication Order
- [60]Some of the allegations of misconduct in this matter relate to the access of official and confidential information on the QPS computer system. I am satisfied that it is appropriate in this matter to redact, where appropriate, the Tribunal’s reasons to avoid the publication of confidential information.[79] The Tribunal will deliver two sets of reasons. One set to the parties and a redacted set for publication.
Footnotes
[1] Notice of formal finding of misconduct dated 14 December 2017.
[2] Part A, findings and reasons following a disciplinary hearing on 29 August 2017.
[3] See Applicant’s outline of submissions filed on 28 June 2018 and Exhibit 2, Annexure D, [1.3].
[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.
[10] See Briginshaw v Briginshaw (1938) 60 CLR 336.
[11] Crime and Corruption Act 2001 (Qld), s 219BA. Schedule 2 defines ‘corruption’ as ‘police misconduct’. See DA v Deputy Commissioner Stewart [2011] QCATA 359, [84].
[12] Police Service Administration Act 1990 (Qld) (‘PSA Act’), s 1.4.
[13] Material filed by the respondent in accordance with s 21 of the QCAT Act.
[14] Leave to rely on the fresh evidence was given at the hearing, see Tribunal Directions dated 4 September 2018 and Exhibits 1, 2 and 3.
[15] Matter two was amended (without objection by the applicant) by the respondent to refer to ‘2015’ not ‘2016’, see Exhibit 4.
[16] Applicant’s outline of submissions filed on 28 June 2018, [17].
[17] PSA Act, s 3.2(3).
[18] PSA Act, s 2.2(a)&(b), see Applicant’s outline of submissions filed on 28 June 2018, [18].
[19] Peat v Lin & Ors [2004] QSC 219 at [8]. See also submissions of the applicant filed on 22 February 2018.
[20] Applicant’s outline of submissions filed on 28 June 2018, [20].
[21] Applicant’s outline of submissions filed on 28 June 2018.
[22] Applicant’s outline of submissions filed on 28 June 2018.
[23] Submissions of the applicant filed 22 February 2018, [71]-[72], see Exhibit 1.
[24] Exhibit 1, [21]-[24].
[25] Applicant’s outline of submissions filed on 28 June 2018, p 9.
[26] Ibid, p 10.
[27] Ibid.
[28] Ibid, see Yabsley v Keating [2015] QCAT 258 at [82].
[29] Applicant’s outline of submissions filed on 28 June 2018, p 10.
[30] Ibid.
[31] Exhibit 4, p 138.
[32] Exhibit 4, p 354.
[33] Exhibit 4, p 354.
[34] Ibid, p 357.
[35] Ibid, p 356-357.
[36] Ibid, p 357, L429.
[37] Ibid, p 358.
[38] Ibid, p 358, L446.
[39] Ibid, p 358.
[40] Ibid.
[41] Ibid, p 359.
[42] Ibid, p 359 L473 to L485.
[43] Exhibit 4, p 359.
[44] Ibid, p 359-360.
[45] Ibid, p 360.
[46] Ibid, p 360-361.
[47] Ibid.
[48] Ibid, p 399.
[49] Exhbit 4, p 399.
[50] Ibid, 400, L1869.
[51] PSA Act, s 3.2.
[52] See s 2.2 and s 2.3.
[53] Respondent’s outline of submissions filed 24 August 2018.
[54] (1952) 85 CLR 237, 255.
[55] Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors (1952) 85 CLR 237, 255.
[56] Ibid, 252.
[57] [2004] QSC 219.
[58] [1993] 2 Qd R 659.
[59] Peat v Lin & Ors [2004] QSC 219, [8]-[9].
[60] Ibid.
[61] Peat v Lin & Ors [2004] QSC 219, [19].
[62] Ibid, [8]-[9].
[63] Exhibit 4, p 360-361.
[64] Exhibit 4, interview dated 15 March 2016, p 1149.
[65] Ibid, p 1126.
[66] Ibid.
[67] Ibid, p 1127.
[68] Exhibit 4, p 1126-1127.
[69] Ibid, p 138.
[70] Respondent’s bundle of authorities and see Respondent’s outline of submissions filed on 24 August 2018, [47].
[71] Ibid.
[72] Exhibit 1, p 13.
[73] Ibid.
[74] Exhibit 1, p 13.
[75] Exhibit 1.
[76] Police Service Board v Morris (1985) 156 CLR 397.
[77] Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597.
[78] Police Service (Discipline) Regulations 1990 (Qld), s 3.
[79] QCAT Act, s 66.