Acreman v Deputy Commissioner Pointing [2021] QCATA 133

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Acreman v Deputy Commissioner Pointing [2021] QCATA 133 PARTIES: GEOFFREY OWEN ACREMAN (applicant\appellant) v DEPUTY COMMISSIONER BRETT POINTING (respondent) APPLICATION NOs: APL109-19 & APL148-19 ORIGINATING NO: OCR294-17 MATTER TYPE: Appeals DELIVERED ON: 24 September 2021 HEARING DATE: 13 May 2021 HEARD AT: Brisbane DECISION OF: Senior Member Howard, Presiding Member Member Richard Oliver ORDERS: Leave is granted for Geoffrey Owen Acreman to amend his grounds of appeal in accordance with his submissions filed on 7 November 2019 in APL109-19 and APL148-19. Leave is refused to Geoffrey Owen Acreman to rely upon additional evidence. APL148-19 The appeal is allowed. Matter 2 (a) The decision of the Tribunal concerning Matter 2 is confirmed. Matter 3 The following decision is substituted: (a) The finding that the conduct is substantiated is set aside. -- 1 of 55 -- 2 (b) Matter 3 is not substantiated. APL109-19 The appeal is allowed. The Tribunal’s decision is set aside. RECOMMENDATION TO CHIEF EXECUTIVE Pursuant to s 24(3) of the QCAT Act, a copy of these reasons for decision be given by the Principal Registrar to the following: (a) the Commissioner for Police with a recommendation that consideration be given to the adequacy of, and taking any necessary steps to ensure the adequacy, of the following: (i) all relevant directions, manuals, practices and procedures for ensuring that all relevant information is considered and appropriately included in, acted upon, and/or disclosed as the case may be in disciplinary investigations and related disciplinary action to ensure that procedural fairness is observed; and (ii) all directions, manuals, practices and procedures (including the procedures for authorisation and cessation of authorisation of officers access files of the Ethical Standards Command) for security and proper management of information held in databases about disciplinary investigations; and (iii)training of police officers to facilitate recognition of and appropriate dealing with public interest disclosures made under the Public Interest Disclosure Act 2010 (Qld); (b) Deputy Commissioner Brett Pointing. A copy of these reasons for decision be given by the Principal Registrar to the Chair, Crime and Crime & Corruption Commission. NON-PUBLICATION ORDER Unless otherwise ordered, publication of the names of the complainant, the complainant’s partner and -- 2 of 55 -- 3 all police officers involved in receiving reports about and investigating the events the subject of the disciplinary charges is prohibited, other than in a deidentified manner. Either party may file in the Appeal Tribunal and serve on the other party, an application for variation of the non-publication order in order 7, together with supporting submissions, within 28 days of these orders; In the event that an application is made in accordance with order 8 above, the other party must file in the Appeal tribunal and serve on the party who made the application, any submissions in response, within 42 days of these orders; and Unless otherwise ordered, any application for variation of the non-publication order will be decided on the papers without an oral hearing. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND SANCTION FOR MISCONDUCT – QUEENSLAND – where the respondent alleged misconduct in that the officer accessed the QPS computer system to search for information about an individual – whether access to the computer system was for an official purpose – where disciplinary proceeding was taken against the officer – where during the course of the disciplinary proceeding the officer again accessed the QPS computer system and found confidential documents relating to the investigation – where the officer reported the existence of the documents on the QPS computer system accessible to all members of the QPS – where further disciplinary charges were brought against the officer for accessing confidential documents – whether access to the confidential documents was misconduct – whether reporting the existence of the documents to a superior officer was a public interest disclosure – whether charge was substantiated APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – DISTINCTION – where appeal on question of mixed law and fact – whether leave to appeal should be granted – where appeal from decision substantiating disciplinary matters – where appeal from proceeding relating to review of a decision – whether decision-maker erred by -- 3 of 55 -- 4 making a finding of fact that is not open on the evidence – whether error by making finding of fact not open on the evidence is an error of law – whether leave should be granted to rely upon fresh evidence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN ALLOWED TO BE RAISED ON APPEAL – WHERE FATAL AND INCURABLE – where statutory immunity from disciplinary charge – where statutory immunity not raised or considered in initiating proceeding – effect of statutory immunity – effect of public interest disclosure – whether police officer made a public interest disclosure of corrupt conduct – whether police officer made a public interest disclosure of maladministration – whether statutory immunity does not apply on the basis that police officer was liable for own misconduct APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where decision-maker found that police officer while off duty did not have duty to act in the circumstances – whether decision-maker incorrectly relied upon finding that police officer had acted on concerns which arose in a private capacity – where error by relying upon an irrelevant consideration – where error not materially relevant to outcome – where error of law by making a finding of fact not open on the evidence – whether decision-maker made a finding of fact that police officers are ordinarily called to physical assaults in absence of evidence to establish a finding of fact – where decision-maker entitled to take judicial notice of fact – where decision-maker not in error for failing to consider an irrelevant consideration – where finding of fact made against a party in circumstances where another party was uniquely placed to admit or disprove fact APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – WHERE FACTS NOT IN DISPUTE – whether decision-maker made finding of fact by inference about state of mind of a party which contradicted direct and unchallenged evidence – whether decision-maker erred by drawing inferences about security and confidentiality of documentation – where inference not -- 4 of 55 -- 5 supported on the evidence – where unexpressed finding of fact APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – JUDGE MISTAKEN OR MISLED – GENERALLY – whether decision-maker misled into making wrong finding of fact – where decision-maker incorrectly held that documents held on a computer system were secured in circumstances where evidence did not support that finding APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – whether decision-maker erred by making a finding of fact that is not open on the evidence – whether error by making finding of fact not open on the evidence is an error of law – whether leave should be granted to rely upon fresh evidence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – WRONG PRINCIPLE – GENERALLY – whether disciplinary charge meets the standard of misconduct – whether decision-maker correctly applied statutory definition of misconduct – where no evidence that police officer intended to act for personal gain – where low level sanction for misconduct Crime and Corruption Act 2001 (Qld), s 15, s 219H Police Service Administration Act 1990 (Qld) s 2.3 Public Interest Disclosure Act 2010 (Qld), s 6(1)(f), s 11, s 13, s 17, s 36, s 39, sch 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24(3), s 24(4), s 142, s 142(3)(b), 146, 147 Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 321 Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95 Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2) [2021] QCATA 42 Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) and others (1952) 85 CLR 237 -- 5 of 55 -- 6 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336 CCC v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96 Clark v Japan Machines (Aust) Pty Ltd (1984) 1 Qd R 404 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and others (2000) 203 CLR 194 Flegg v CMC & Anor [2014] QCA 42 Frazer v Assistant Commissioner Condon [2016] QCAT 271 Gunter v Assistant Commissioner Wilkins [2019] QCAT 410 Hocken v Pointing [1993] 2 Qd R 659 House v The King (1936) 55 CLR 499 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Lee v Crime and Corruption Commission & Anor [2014] QCATA 326 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 O’Brien v Assistant Commissioner & Anor [2021] QCATA 12 O’Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 27 Peat v Lin & Ors [2005] 1 Qd R 40 Pickering v McArthur [2010] QCA 341 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Spencer v Assistant Commissioner McCarthy [2019] QCAT 375 Terera & Anor v Clifford [2017] QCA 181 Warren v Coombes (1979) 142 CLR 531 -- 6 of 55 -- 7 APPEARANCES & REPRESENTATION Applicant: Self-represented Respondent: Fraser I, senior legal officer, QPS Legal Unit REASONS FOR DECISION Background [1] Geoffrey Acreman has been a sworn police officer since 1981. He has served with an unblemished record, aside from the events which are the subject of this appeal, rising to the rank of Inspector. [2] As at 26 July 2015, Mr Acreman was on secondment to the Crime and Corruption Commission (CCC) where he was performing the role of Inspector Integrity Services. [3] Certain events occurred on 26 July 2015 when Mr Acreman was off duty, after he responded to an advertisement relating to the sale of a household appliance. He and his partner attended at private premises in a Brisbane suburb to inspect the appliance. During the course of the inspection the discussion became heated between the seller (‘the complainant’) and Mr Acreman. A physical altercation ensued. Mr Acreman was assaulted by the complainant, defended himself adequately and left the property. Mr Acreman did not report the assault to police. He was unharmed and did not consider the incident serious enough to warrant police involvement. The incident was witnessed by a woman with the complainant. [4] Subsequently, on 27 July 2015 whilst on-duty at the CCC Mr Acreman accessed the QPRIME police computer system and undertook a search to try to identify the complainant, but without success. At the end of his shift he then returned to the address at which he had viewed the appliance to see if he could obtain a vehicle registration number for the complainant. There was no vehicle at the address. However, he spoke to a person at the address who directed him to the complainant’s address where he was able to obtain a vehicle registration number. [5] The following day he again accessed QPRIME. He provided the reason as being an ‘intelligence enquiry – intel submission – aggressive and violent behaviour of resident at [a Brisbane suburb]’. He says that, because he did not locate a relevant history, he did not ultimately complete an intelligence submission. [6] Mr Acreman says he took those actions because he was concerned about the welfare of the complainant’s partner (and whether she was at risk of aggressive behaviour by him in their domestic relationship) and concerned that others inspecting the appliance may encounter similar aggressive behaviour from the complainant. [7] The complainant made a formal complaint about Mr Acreman’s conduct. Ethical Standards Command (ESC) of the Queensland Police Service (the QPS) investigated -- 7 of 55 -- 8 the complaint. Mr Acreman was formally interviewed in respect of the incident in September 2015 by Detective Inspector M.1 [8] On 10 November 2015, Mr Acreman was notified by letter from the CCC that his secondment to the CCC had been rescinded as of that date due to allegations of misconduct against him which were more appropriately dealt with by the QPS.2 It is relevant to note here that the allegations are set out in the letter. They relate to the events explained above and in respect of which the letter states that an investigation is said to have recently been completed by the QPS. The allegations are differently numbered and expressed in a somewhat different manner than the matters of misconduct subsequently preferred against Mr Acreman which are the subject of these proceedings. However, it was stated that allegations had been substantiated including that he repeatedly verbally abused the complainant during an incident on 26 July 2015 and improperly used QPRIME for personal reasons to perform a background check. The letter states that a further allegation, related to grabbing ‘the complainant around the neck with force’, was recorded as unsubstantiated. [9] We set out here that part of the correspondence dated 10 November 2015 that relates to the allegations: I have recently been advised by the Queensland Police Service Ethical Standards Command (ESC) that they have completed an investigation into these allegations and have found the following allegations were substantiated--: Matter (2): Unprofessional personal conduct—namely that you were repeatedly verbally abusive towards a complainant during an incident which occurred on 26 July 2015 and you identified yourself as a Detective from Crime and Corruption Commission and provided your registration number when asked. Matter (3): Improper use of QPRIME—that you improperly used the QPS QPRIME for personal reasons, namely to conduct a background check on the complainant, referred as (sic) above. I note a further allegation was recorded by the investigating officer as not substantiated, namely: Matter (1): Assault/Use of excessive force—that during a heated exchange, you grabbed the complainant referred to above around the neck with force, assaulting him. [10] Mr Acreman returned from the CCC to service at the QPS. [11] Between 11 January 2016 and 16 January 2016, Mr Acreman accessed a police computer in the course of his duties. While looking for his personal QPS records, he came across what the Deputy Commissioner contends was confidential information relating to the internal investigation into Mr Acreman’s conduct arising from the complaint made against him. This occurred when he clicked on ‘Linked Documents 1 Appeal Book, p 61. 2 Appeal Book, p 468. -- 8 of 55 -- 9 L:Drive’ on his desktop computer; clicked on a file named ‘C & CC’ where he thought, based on previous experience, his personal records may have been stored, (because he had been on secondment to the CCC until shortly beforehand), and ‘2015,’ that being the year just ended. He was looking for information about his posting. He saw and opened a general folder named ‘140452_[name of complainant’s partner]_[name of complainant]_[Officer T(redacted)]. He says that he thought he was on the right track because of tasks he had undertaken regarding a fellow officer, Officer T. The file contained four documents concerning the complaint against him, including statements made by the complainant and his partner shortly after making the complaint. [12] On reviewing the documents, Mr Acreman realised their significance. They related to the disciplinary investigation about the complaint made against him. He says he believed that the documents, which he knew should be confidential, were publicly available to QPS officers and had not been secured as they ought to have been, on the basis that he had accidentally located them and believed other officers could also do so. Further, he says he was concerned that the documents had been excluded from the disciplinary investigation as they contained different allegations (and were inconsistent with) some allegations put to him in the ESC investigation. [13] His supervisor, Acting Superintendent S, was absent that day and he (Mr Acreman) was, shortly after discovering the documents, due to leave work for 2 days on sick leave for a medical procedure. He says that, in order to secure the evidence, he took a screen shot of his desktop to show how the files were located and he forwarded a copy of the files to his private external email address. He says he knew that doing so would trigger an auditable evidence trail whereby he could later establish the existence of the four documents. He further says that documents in QPS general folders were not subject to audit software. That is, he could have printed the documents or sent them to his internal email, and his access to them would have been untraceable by QPS. [14] Mr Acreman took the planned sick leave. Upon his return, he promptly reported the events to his supervisor and asked him to contact ESC and have them secure the documents. Mr Acreman did not then access the documents again. [15] He deleted the files sent to his private email without reading them, after the report to his supervisor and after speaking with a representative from a Commissioned Officers’ Union. He was later informed that the documents were on an ESC file server. [16] Disciplinary charges were subsequently brought against Mr Acreman by QPS in respect of his self-report about the events. The disciplinary charges brought against Mr Acreman [17] The Deputy Commissioner brought disciplinary charges of alleged misconduct against Mr Acreman in about May 2017. Relevantly, they are as follows: Matter 1: That on 26 July 2015 at Brisbane your off duty conduct was improper in that you: (a) failed to leave the property of [the complainant] when requested to do so; (b) assaulted [the complainant] by grabbing him around the neck; -- 9 of 55 -- 10 (c) verbally abused [the complainant], (d) assaulted [the complainant] by grabbing him by the shirt and shaking him violently; and (e) stood over [the complainant], identified yourself as a police officer and threatened to arrest him. Further and better particulars: Investigations have identified that at about 1:30pm on Sunday 26 July 2015 whilst you were off duty and in the company of [Mr Acreman’s partner] you attended the property of [the complainant] at [complainant’s address], regarding an oven that was advertised for sale on Gumtree (an internet site). In relation to Matter 1 (a): 1. At that location you spoke to [the complainant] about the oven and then accompanied him to a shed where the oven was located; 2. You viewed the oven, and after discussions with [the complainant] you decided not to buy the oven; 3. These discussions then became heated and [the complainant] told you to immediately leave his property; and 4. You failed to comply with his request to leave, staying at the premises which caused a confrontation with [the complainant]. Investigations have identified in relation to Matter 1 (b): 1. [the complainant] then attempted to escort you from the property, however you did not comply and grabbed him by the throat with your right hand. Investigations have identified in relation to Matter 1 (c): 1. Whilst you had hold of [the complainant’s] throat you verbally abused him by saying “Little cunt, you can’t assault me.” Investigations have identified in relation to Matter 1 (d): 1. You then further grabbed [the complainant] by his shirt and started to shake him causing his shirt and singlet to rip; 2. As a result of your actions [the complainant] received a scratch to the inside right wrist and a scratch to his neck from this altercation. Investigations have identified in relation to Matter 1 (e): 1. After leaving the shed both you and [the complainant] went to your respective vehicles and drove to the front of the property; 2. You alighted from your vehicle and approached the driver’s door of [the complainant’s] vehicle and spoke to him in the presence of [the complainant’s partner] who was seated in the passenger side of his vehicle; 3. [the complainant] opened his door and you positioned yourself in the opening between the door and the vehicle and placing your hands on the roof of his vehicle whilst leaning over him; -- 10 of 55 -- 11 4. You identified yourself as a police officer and threatened to arrest him by saying “I am a fucking Detective if you ever do that again, I will arrest you. You got it?”; and thereby intimidated him; 5. You then provided your registered number as 4863, stating you worked at the Crime and Corruption Commission; and 6. [the complainant’s partner] then requested you to leave the property but you continued to engage [the complainant] with both of your hands on the roof of his vehicle leaning over the top of [the complainant]. Matter 2: That between 26 July 2016 and 28 July 2016 at Brisbane your conduct was improper in that you: (b) 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. Further and better particulars: Investigations have identified: 1. On 27 July 2015 whilst on duty you accessed QPRIME but were unable to identify [the complainant], the complainant in this matter; 2. 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]; 3. 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; 4. You then attended that address, observed [the complainant’s] motor vehicle and recorded the registration details; 5. 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 6. You never submitted the intelligence submission and accessing this information 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 your private email address without authority or official purpose related to the performance of your duties as a member of the Queensland Police Service. -- 11 of 55 -- 12 Further and Better Particulars: Investigations have identified that you as a Detective Inspector previously performing duties at the Crime and Corruption Commission 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: In relation to Matter 3 (a): 1. Accessed the ESC File Server (L Drive) on the Queensland Police computer system namely a folder titled ‘C&CC 2015 folder’; 2. This folder contained a file titled 140452_[redacted][Officer T (redacted)], which related to the internal investigation of the complaint made against you by [the complainant]; 3. The folder contains four files titled, [redacted] statement (pdf file), Email (pdf file), Facts (Word file) and statement from [redacted] re incident 26th July (pdf file); 4. You knew these files related to the disciplinary complaint against you by [the complainant]; 5. You accessed and read the files relating to the internal disciplinary complaint against you which did not relate to the performance of your duties as a member of the Queensland Police Service. In relation to Matter 3 (b): 1. You inappropriately and without authority sent files contained in this folder from your police email address to your private email address namely [redacted]; 2. The email contained the subject [redacted]; 3. Sending this information to your private email address did not relate to an official purpose in the performance of your duties as a member of the Queensland Police Service; and 4. On 15 January 2016 you advised Detective Superintendent [W] that you deleted the files from your private email address. The Deputy Commissioner’s decision [18] The Deputy Commissioner found that Matter 1 was not substantiated. In respect of allegations (a) and (b), Mr Acreman’s actions were found to have been reasonable in the circumstances. Allegations (c), (d) and (e), were found not proven. In respect of (c), the complainant’s inconsistency in his various versions of events and Mr Acreman’s denials are the stated reason. In respect of (d), again Mr Acreman’s denials and the unlikelihood of the sequence of events resulted in the finding that the allegation was not established. In respect of (e), audio taken by Mr Acreman’s partner demonstrates that after Mr Acreman identified himself as a police officer, the complainant was not intimidated as alleged. [19] The Deputy Commissioner found Matters 2 and 3 were substantiated and were misconduct. In respect of Matter 2, he ordered that Mr Acreman be reprimanded. In -- 12 of 55 -- 13 respect of Matter 3, he ordered that Mr Acreman be permanently demoted from Inspector Paypoint 5.6 to Senior Sergeant Paypoint 4.1. 3 The Tribunal review [20] Mr Acreman sought a review of the Deputy Commissioner’s decision in the Tribunal. After a hearing in the review proceeding, the Tribunal delivered a decision on 4 September 2018. In the decision, the Tribunal confirmed the Deputy Commissioner’s decision to substantiate Matter 2 and Matter 3 and confirmed the sanction imposed in respect of Matter 2. The Tribunal directed that further submissions be filed about sanction in respect of Matter 3. [21] On 11 April 2019, the Tribunal made a decision varying the sanction imposed by the Deputy Commissioner for Matter 3 by setting it aside and imposing a sanction that Mr Acreman be reduced in rank from Inspector Paypoint 5.6 to Senior Sergeant Paypoint 4.1 for a period of 12 months from 14 December 2017. It then provided that, at the conclusion of the 12-month period, he be returned to Inspector Paypoint 5.6. The Tribunal also made orders concerning professional development courses to be undertaken relating to ethics and ethical decision making; information security; information classification systems; professional practice with the QPS; and self-funded ethics and governance training. Mr Acreman completed the professional development courses as ordered. These appeal proceedings [22] Following the decisions of the Tribunal, Mr Acreman filed two applications for leave to appeal or appeals in respect of the two Tribunal decisions in the review proceeding. The grounds of appeal in both appeal proceedings are brief and assert errors of law and errors of fact. In both instances, the stated grounds are in general terms to the following effect: 1. The Tribunal member made a number of errors at law and fact which are significant in nature and which had a significant influence on the substantiation of Matter 2 and 3 and final determination of sanction. 2. The matters have been incorrectly classified as misconduct. 3. The sanction imposed for Matter 3 is manifestly excessive. 4. An attached submission sets out alleged errors in the determination of the matter. [23] The attachments to the applications are lengthy. We proceed in these reasons for decision to deal with the substance of the various alleged errors raised by the grounds of appeal, as later recast in subsequent, again lengthy, submissions filed by Mr Acreman which are said, in each case, to replace all earlier submissions.4 [24] Although there has not been a formal application for leave to amend the grounds of appeal, there has been no objection by the Deputy Commissioner who has, in any 3 In respect of Matter 3, the Deputy Commissioner found Matter 3(a) and (b) substantiated. In his reasons for decision imposing sanction, he refers only to 3(a). 4 Submissions filed by Mr Acreman in APL109-19 on sanction and in APL148-19 on substantiation of Matters 2 and 3 in both cases on 7 November 2019. -- 13 of 55 -- 14 event, responded to the later submissions. To the extent that it is necessary, we formally give leave to Mr Acreman to amend his grounds of appeal in keeping with his submissions. [25] While there is a right of appeal on a question of law, by s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), leave to appeal is required where the appeal raises a question of fact or a question of mixed law and fact. In relation to the granting of leave, in Terera & Anor v Clifford5 it was stated that the issues to be considered are whether: (a) an appeal is necessary to correct a substantial injustice; and (b) there is a reasonable argument that there is an error to be corrected. [26] The Deputy Commissioner submits that the findings of fact made were open to the Tribunal. The Appeal Tribunal will not readily interfere with findings of fact made by the Tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.6 [27] In Lee v Lee,7 the High Court has recently reiterated the functions of an appeal court in addressing findings of fact: A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.8 5 [2017] QCA 181; see also Pickering v McArthur [2010] QCA 341. 6 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]; followed in Lee v Lee [2019] HCA 28; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104. 7 (2019) 266 CLR 129; [2019] HCA 28 (Lee v Lee). 8 Ibid, [55] - references omitted. -- 14 of 55 -- 15 [28] That said, making a material finding of fact that is not open on the evidence is an error of law.9 [29] Further, the Deputy Commissioner argues that, because the decisions sought to be appealed both involve the exercise of discretion, the appeal can only succeed if the exercise of the Tribunal’s discretion was miscarried. He submits that it did not. The latter argument is made, it seems, based on the approach taken in a police disciplinary appeal proceeding of Flegg v CMC & Anor (Flegg).10 In the Court of Appeal decision in Flegg,11 the Court considered whether the grounds of appeal should be treated as a ground of unreasonableness as explained in Minister for Immigration and Citizenship v Li (‘Li’).12 In Flegg, Gotterson JA with whom Margaret Wilson J agreed, helpfully explains the ground of unreasonableness and sets out the relevant passage from the High Court decision in Li:13 After referring to the close analogy between judicial review of administrative action and appellate review of a judicial discretion identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 41] in the context of unreasonableness and to the principles governing the review of judicial discretion articulated in House v The King [(1936) 55 CLR 499] concerning inference of unreasonableness, their Honours said: “…The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” In separate reasons in Li, French CJ reminded that the ground was not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision-maker. Gageler J described the test for unreasonableness as stringent, noting that judicial determination of Wednesbury unreasonableness in Australia has in practice been rare.14 [30] Appeal proceedings are for correcting error made by the original Tribunal. In deciding an appeal against a decision on an error of law alone, the Appeal Tribunal must proceed in accordance with s 146 of the QCAT Act. However, in deciding an appeal on a question of fact only, or on an error of mixed law and fact, the Appeal Tribunal must proceed under s 147 of the QCAT Act, by way of rehearing. [31] With those general statements of principle in mind, it is useful to note here that in the Tribunal review proceeding (and indeed, before the Deputy Commissioner) there was 9 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390. 10 [2014] QCA 42 (‘Flegg’). 11 Ibid. 12 [2013] HCA 18; (2013) 297 ALR 225 (‘Li’). 13 Ibid, 15–16. -- 15 of 55 -- 16 no oral evidence given. In both instances, the hearing proceeded on the basis of the written evidence and submissions made to the decision-maker. [32] Here, the applications for leave to appeal or appeals were initially listed for hearing before us on the papers; that is, to be determined without an oral hearing. However, in considering the material before us, the Appeal Tribunal formed the preliminary view that it may be necessary to consider whether Mr Acreman’s grounds of appeal, having regard to the evidence and submissions made in relation to Matter 3 may raise and/or be capable of constituting a public interest disclosure (PID). Although not framed using those precise words, it is apparent that he saw the events in this light. We directed that further submissions be filed by the parties addressing the issue. The Appeal Tribunal also initiated an application for joinder of the CCC having regard to its oversight role in matters of police misconduct. [33] After receiving submissions from the parties and the CCC, the appeal proceeding was listed for oral hearing for the purpose of the Appeal Tribunal receiving further submissions from the parties in the appeal proceeding, and particularly in relation to the PID issue. The CCC attended the hearing as an observer. At the conclusion of the parties’ submissions, it’s representative submitted that it was not necessary for it to be joined in light of the submissions made by the Deputy Commissioner’s representative. We accepted that submission and made orders on the day of the hearing dismissing the Appeal Tribunal initiated application for joinder of the CCC. [34] Some concessions were properly made by the Deputy Commissioner at the oral hearing. In particular, the Deputy Commissioner conceded in the oral hearing that Mr Acreman was entitled to access a general access folder (and that there was no evidence to suggest otherwise) and that Mr Acreman could not have known what the documents in the folder were until he accessed them. However, he argues that having accessed them and realised their confidential nature (as they related to a disciplinary investigation about him), Mr Acreman should then not have read them (although we observe that if he had not read them, it is not apparent how he would have identified their significance) and, in any event, should not then have emailed them to his external email. [35] For the reasons that follow, we have concluded that the Tribunal erred in the exercise of its discretion in making the decisions appealed. Characterised in this way, the errors made are errors of law, and leave to appeal is not required. In proceeding pursuant to s 146 of the QCAT Act, the appeals should be allowed in relation to Matter 2 and Matter 3. That said, we are satisfied that the decision of the Tribunal as far as it is relevant to Matter 2 should be confirmed. We substitute our own decision in relation to Matter 3. [36] If we are incorrect in characterising the errors and leave to appeal is required, we would grant leave, and allow the appeals to correct a substantial injustice to Mr Acreman. If so, we must proceed pursuant to s 147. [37] We refuse Mr Acreman’s application for leave to rely upon additional evidence. In proceeding under s 146, it is an appeal in the strict sense on the material before the Tribunal. [38] Even if we are incorrect and we must rehear the matter pursuant to s 147, we would refuse the application for leave to rely upon additional evidence for the following reasons. The evidence sought to be led is twofold. Firstly, in regard to the financial -- 16 of 55 -- 17 consequences of the sanction imposed in relation to the demotion from Inspector Paypoint 5.6 to Senior Sergeant Paypoint 4.1 for 12 months. Secondly, to put forward evidence of information gained from undertaking the courses he was required to complete as part of the sanction in respect of Matter 3.15 Mr Acreman undertook the Business Ethics and Corporate Governance course at Griffith University and one of the course topics related to ‘Whistleblowing’ and the steps and actions that ought be taken by a person who wants to report conduct to management. As part of the action taken, a person should ensure all relevant documents and materials are secured to support the complaint. Mr Acreman relies on that material to support his position that by securing the documents in his private email he simply did what was recommended in the course he was ordered to undertake. [39] Under s 219H of the Crime and Corruption Act 2001 (Qld) (the CC Act) the Tribunal, when reviewing a reviewable decision (which this was), the review must be done by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceedings). The tribunal has a discretion to admit fresh evidence. Similarly, on appeal to be decided by way of rehearing, pursuant to s 147 of the QCAT Act, a discretion to allow additional evidence applies. [40] The general principles relating to the admission of fresh evidence on appeal are well established:16 (a) the evidence could not have been obtained with reasonable diligence for use at the trial; (b) the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and (c) the evidence is credible, though it need not be incontrovertible. [41] In respect of Mr Acreman’s application, the evidence concerning the financial consequences of any sanction involving demotion does not satisfy the above test. The consequence of financial detriment from demotion was obvious. He could have provided more detailed and accurate evidence at the review hearing. The issue of financial loss was agitated before the learned Member. She addressed this specifically in her reasons.17 The application in respect of the further evidence from QSuper should be refused. [42] In respect of the information Mr Acreman obtained in undertaking the professional development courses ordered by the Tribunal in relation to steps to be taken by whistleblowers, we have raised whistleblowing for consideration in the context of the PID Act. While we accept that this evidence was not available to Mr Acreman at the time of the hearing, it is consistent with Mr Acreman’s evidence about the steps he took and his submissions before the Tribunal in the review. It raises nothing new and in any event is merely an extract from lecture notes. Therefore, we do not accept that it may likely have an important impact on the result of the appeal. We would refuse leave for Mr Acreman to rely upon this further evidence. 15 Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95 (‘the Second Reasons’). 16 Clarke v Japan Machines (Aust) Pty Ltd (1984) 1 Qd R 404. 17 Second Reasons, [34]. -- 17 of 55 -- 18 Matter 2 The Tribunal’s reasons for decision [43] It is uncontroversial that the only basis upon which any serving police officer can access the QPRIME system is for an official purpose. [44] It is uncontroversial that Mr Acreman accessed QPRIME as alleged. The live issue for the Tribunal was whether he did so without an official purpose. [45] Whether or not Mr Acreman had a duty as a police officer to take any action arising out of the incident which occurred when he was off duty was considered by the learned Member. She referred to a number of cases which considered the responsibilities of a sworn police officer when off duty.18 The learned Member concluded that: 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 on judgment and action. More importantly, the off-duty officer must exercise his or her judgment or to be satisfied (sic) that the circumstances justify appropriate action to protect the public.19 [46] The learned Member said by reference to Peat v Lin & Ors that the case was helpful, in particular:20 [33] 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. [47] The learned Member found that the incident between the complainant and Mr Acreman occurred when Mr Acreman was acting in a private capacity. The incident was unrelated to the performance of his duties as a police officer. Police were not called to the incident. The learned Member found that because Mr Acreman’s suspicions or concerns about the complainant (that led him to conduct further enquiries) arose from a private matter – in which Mr Acreman acted in a private 18 Peat v Lin & Ors [2005] 1 Qd R 40 (‘Peat v Lin’); Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) and Others (1952) 85 CLR 237 at 255; and Hocken v Pointing [1993] 2 Qd R 659. 19 Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 321, [34] (‘Reasons’). 20 [2005] 1 Qd R 40, 252. -- 18 of 55 -- 19 capacity – he did not have a duty, as a police officer, to follow up his concerns about the complainant after the incident. In reaching this conclusion, the learned Member made a finding that it was reasonable to draw the 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.21 [48] On the basis of its finding that Mr Acreman’s concerns were formed during the incident,22 the Tribunal considered whether Mr Acreman accessed QPRIME for a personal or private matter as opposed to an official purpose. [49] Having concluded that the incident occurred while Mr Acreman was off duty, arising from a private matter, and then drawing the inference that his suspicions and concerns about the complainant occurred at that time, the learned Member found that his access to QPRIME was not for an official purpose. [50] The Tribunal confirmed the substantiation of Matter 2. It found that the conduct was misconduct because it did not relate to his duties at the CCC and it does not meet the standard of conduct the community reasonably expects of an officer. Mr Acreman’s grounds of appeal in respect of Matter 2 [51] Mr Acreman’s seven grounds of appeal may be summarised as follows: (i) error in equating ‘when acting in a private matter’ with arising from a private matter; (ii) error in drawing an inference inconsistent with the evidence as to when Mr Acreman’s suspicions or concerns were formed/arose; (iii) error in finding the assault was serious, contrary to Mr Acreman’s evidence; (iv) error in finding police are usually called to such incidents contrary to Mr Acreman’s evidence and in the absence of any other evidence; (v) error in failing to consider the relevance of Matter 1 that there was no misconduct in identifying himself as a police office to prevent further behaviour by the complainant; (vi) error in failing to consider a broader view of the event and contributing factors as part of a police officer’s duties; and (vii) error in finding, if conduct proved, it constituted misconduct. [52] The Deputy Commissioner submits that the decision on substantiation was discretionary and, therefore, its correctness can only be challenged on the basis of error in the decision-making process.23 He characterises the alleged errors as being to the effect that insufficient consideration was given to the matters identified by Mr Acreman and that, therefore, no error was made by the Tribunal. In particular, he 21 Reasons, [36] 22 Ibid, [35]. 23 House v The King (1936) 55 CLR 499; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and others (2000) 203 CLR 194. -- 19 of 55 -- 20 submits that the Tribunal’s findings were open on the evidence and that the Tribunal considered whether or not he accessed QPRIME within his duties as a police officer. He submits that the finding that the conduct was misconduct was open. [53] Each of the grounds of appeal is dealt with in the paragraphs that follow. Alleged error of law in equating ‘when acting in a private matter’ with actions ‘arising from a private matter’ [54] Mr Acreman accepts he was acting in a private capacity at the residence when the altercation occurred. Subsequently, when considering the possible domestic violence implications, he told the investigators that he considered, as a police officer, he had an obligation to make enquiries about the complainant. He first accessed QPRIME to try to identify the complainant and then returned to the property to obtain a vehicle registration number. This further information allowed Mr Acreman to search the QPRIME database to see if the complainant had a relevant history with the QPS. The inquiry was negative, so he took the matter no further; that is, he did not lodge an intelligence submission. [55] Further, he submits that the Tribunal erred because, although the learned Member accepted that Mr Acreman was concerned about the complainant’s behaviour, it did not accept he had a duty to do anything about it. He submits that he had an obligation under his oath of service to do something because of his concerns about domestic violence and of negligence if he did nothing. He says the Tribunal erred in finding that his concerns about domestic violence and other assaults arose in a private matter. He says he only considered afterwards, that is, after the incident, whether other members of the public and the complainant’s partner may be at risk of violence from the complainant. [56] Mr Acreman contends that the Tribunal erred in equating or extending the meaning of acting ‘in a private capacity’ to include ‘arising from a private matter.’ He argues that he did not, in accessing QPRIME, act in a private capacity or out of any private interest. He acknowledges that police powers may not be used in a private matter, but that if police powers cannot be used in circumstances ‘arising in a private matter’, it is open to a very broad interpretation. He submits, for example, that important information may come to the attention of an off duty officer relating to criminal activity. If the Tribunal is correct, the officer would not be entitled to act upon it. Mr Acreman contends that the Tribunal erred in equating the concepts. [57] The Tribunal found as a fact that, during the assault by the complainant, Mr Acreman acted in his private capacity.24 Mr Acreman agrees that is so. The Tribunal considered whether Mr Acreman had a duty to act arising out of the incident between him and the complainant. After considering authorities,25 including Peat v Lin, it found in essence that an off duty officer has a duty to ensure protection of public safety, but is not required to intervene in a situation to which police might be called.26 It referred to police officers, including off duty officers, exercising their judgment as to whether circumstances ‘justify appropriate action to protect the public.’27 Peat v Lin involved alleged negligence of 3 off duty officers in failing to act during a nightclub incident. 24 Reasons, [26]. 25 Ibid, [31]. 26 Ibid, [33]. 27 Ibid, [30], [34]. -- 20 of 55 -- 21 In that case, the issue was whether they had a duty to act while off-duty to intervene to prevent injury to the plaintiff. [58] As discussed, the Tribunal found that Mr Acreman did not have a duty to act because his suspicions were formed during the incident, in which he acted in a private capacity and to which police would ordinarily be called. His concerns therefore arose from a private matter and there was no official purpose for the enquiries. [59] On a fair reading of the Tribunal’s reasons for decision, the Tribunal appears to have concluded in effect that, absent a positive duty to act as an officer during the private off duty incident with the complainant, he could not take action in an official capacity in relation to his concerns about domestic violence and other possible assaults for the proposed purpose of protecting (other) members of the public who may view the item for sale, or the complainant’s partner, if she was subject to domestic violence. In effect, the Tribunal found that because his concerns arose from a private matter, there could be no official purpose to the enquiry. [60] It is undisputed that the incident with the complainant occurred when Mr Acreman was acting in a private capacity and that his concerns arose from those events. With respect, the Tribunal’s discussion about whether police officers were always on duty and whether, when off duty, an officer had a legal duty in negligence to act, as was considered in the decision in Peat v Lin which the Tribunal relied upon, was not the issue here. The question here was whether, after later returning to duty, Mr Acreman acted on his concerns about the complainant’s violent propensities in an official capacity. [61] Mr Acreman’s submission is to the effect that he was obliged by his oath of office to do so. He suggests in effect that if it was not so, even if an officer became aware of serious criminal behaviour in his private life, he could not act upon it. [62] The problem with that proposition is that in the course of their duties, police officers are tasked with particular functions at any given time depending upon the position held. As identified earlier, Mr Acremen was on secondment to the CCC as Inspector Integrity Services at the time of the QPRIME access in question. Even if the information he became aware of in his private capacity was worthy of police investigation, and notwithstanding the common law duties of every constable discussed by the Tribunal, it was not his role at the CCC to investigate it. [63] In our view, consistent with the Deputy Commissioner’s reasons for decision, the proper course was for him (or any officer who finds themself in Mr Acreman’s position or who becomes aware of criminal activity or intelligence while off duty) is to report the assault (or other criminal activity or intelligence, as the case may be), like any other member of the public, to an officer at the relevant police station or police unit whose responsibility it is to take any necessary and appropriate action and to deal with and investigate such issues or activity. [64] We observe that Mr Acreman submits that he did not consider the incident serious enough to warrant official intervention and use of QPS resources to attend at the incident. He further submits that had he reported it after the event, no action would have been taken. His uncontested evidence is that he was concerned that others, including the complainant’s partner, might be exposed to similar treatment. It was for that reason he decided to investigate and lodge an ‘intelligence inquiry’ citing the -- 21 of 55 -- 22 complainant’s ‘aggressive and violent behaviour’ as the reason for it. He did not attempt to conceal his actions. [65] It is apparent in this instance that Mr Acreman’s actions after the assault were well-intentioned and genuinely undertaken for the proposed protection of members of the public. There is no suggestion that he acted out of self-interest. Nevertheless, his actions were inappropriate. [66] As this analysis demonstrates, whether or not the Tribunal erred in equating ‘acting in a private capacity’ with acting on concerns ‘arising out of a private matter’ is not materially relevant to the outcome. However, for the reasons explained, we find that the Tribunal erred in law in exercising its discretion. Nevertheless, for the reasons explained, the outcome in respect of Matter 2 would not be disturbed, irrespective of the identified error by the Tribunal. Alleged error of fact in making an inference inconsistent with the evidence as to when Mr Acreman’s suspicions or concerns were formed/arose [67] The Tribunal found that Mr Acreman’s concerns or suspicions arose during the incident with the complainant. [68] Mr Acreman contends that his concerns arose upon reflection after the incident about the complainant’s potential to harm other members of the public and the complainant’s partner. Mr Acreman also submits that there was no evidence before the Tribunal putting in dispute his evidence as to when he first considered the domestic violence and other implications. Mr Acreman’s submission is that there was no factual basis upon which it is possible to draw the inference relied upon by the Tribunal to substantiate the charge against him. [69] The only direct evidence as to when Mr Acreman gave any consideration to the possibility of any persons being at risk of potential violence and domestic violence from the complainant came from Mr Acreman. He told Detective Inspector M as much in the formal interview that he had no intention of taking the matter further by involving police. It was only after he left the property and was discussing the incident in the car with his partner that he gave further thought to the incident and the complainant’s behaviour. He formed the view that the complainant’s ‘behaviours were stereotypical D-V’ (domestic violence).28 His evidence about the issues is uncontested. [70] Despite that, the learned Member found that it was reasonable to draw the 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’.29 The effect of this finding of fact is to reject Mr Acreman’s evidence out of hand, without explanation for doing so. Mr Acreman alleges that in doing so, it erred. [71] We do not accept that whether Mr Acreman’s concerns about the potential for other assaults and domestic violence were formed during or after the events was materially 28 Reasons, [23]. 29 Ibid, [36]. -- 22 of 55 -- 23 relevant to the outcome, for the reasons explained in relation to the previous ground of appeal. Put simply, it was not his job to take official action in relation to the events. [72] That said, in case we are wrong, we make the following observations in dealing with the issue raised by Mr Acreman on appeal about the Tribunal’s finding that he formed his concerns during the events with the complainant. [73] Mr Acreman submits that it was not open for the learned Member to draw the inference that she did; namely, that he formed his concerns which he later acted upon during the events between himself and the complainant, in the face of his uncontested evidence which is inconsistent with the finding, as to when he formed the intention to investigate the matter further. He submits that this is particularly so in circumstances where the matter was heard on the papers and no oral evidence was given upon which to form impressions about credibility and reliability. [74] As discussed, the Tribunal drew the inference that Mr Acreman’s suspicions and concerns about the complainant were formed during the private incident with him.30 [75] Before an inference can be drawn there must be primary facts found which underpin the inference.31 Here, the learned Member made a finding of fact as to Mr Acreman’s state of mind at the time of the incident involving the complainant. The uncontested evidence as to what occurred during the incident at the complainant’s property would suggest that both parties were in an agitated state when the altercation occurred. Immediately after the physical altercation, Mr Acreman left the property with his partner. In these circumstances, viewed objectively, it is inherently improbable that during the events Mr Acreman gave any rational thought to what, if anything, he might do to investigate the complainant. [76] In any event, there is uncontradicted evidence from Mr Acreman about when he formed the intention to look into the complainant; that is, after the incident. There is no challenge to that direct evidence, and no discernible, or stated, reason for its rejection. There was no primary finding of fact made by the Tribunal which is capable of underpinning the inference it drew. [77] If it was necessary to do so, we would conclude that an inference as to Mr Acreman’s state of mind contrary to his evidence was not open on the evidence, and was not open on the primary facts found. [78] If it was necessary to do so, we would therefore find that the only finding open was that Mr Acreman’s suspicions or concerns were formed after the incident having given 30 Ibid. 31 Warren v Coombes (1979) 142 CLR 531. -- 23 of 55 -- 24 it some thought, rather than during the brief incident itself. The Tribunal erred in finding otherwise. That said, for the reasons explained earlier in relation to the previous ground of appeal, the error is, in any event, immaterial in determining whether the conduct is substantiated. Alleged error of fact in finding that the assault on Mr Acreman was serious [79] The Tribunal found that the incident was one to which police would ordinarily be called, in essence because it involved a serious and unprovoked attack on Mr Acreman.32 [80] Mr Acreman disputes the Tribunal’s finding that the incident amounted to a serious assault. Mr Acreman argues that the evidence before the Tribunal suggested that he did not consider it a serious assault, describing it as ‘grabbing me’, and that he was able to adequately defend himself.33 He points out that his submissions to the Deputy Commissioner, which were before the Tribunal, were to the effect that he did not call police because he was able to de-escalate the situation, without injury to either himself or the complainant.34 [81] Whether or not the assault on Mr Acreman was a serious assault is irrelevant to the substantiation of Matter 2. The issue was whether he acted in an official capacity in accessing QPRIME following the events referred to between the complainant and Mr Acreman. For the reasons explained earlier, he did not. [82] In case we are wrong, we make the observation that if it was necessary for us to do so, we would find, whether or not Mr Acreman considered the assault serious, it was open for the learned Member to find that it was serious on the evidence before the Tribunal because it was, as the Tribunal found, an unprovoked physical attack,35 against which Mr Acreman used force to defend himself and to which police could have been called.36 Indeed, Mr Acreman considered it was serious enough to warrant identifying himself as a police officer and subsequently to take further action, albeit in a misguided manner. 32 Reasons, [25], [36]. 33 Appeal Book, p 71, lines 338-342. 34 Ibid, 206–207. 35 Reasons, [26]. 36 Ibid. -- 24 of 55 -- 25 Alleged error in finding that police are ordinarily called to assaults (fact) and in the absence of evidence (law) [83] Mr Acreman contends an error of law and fact by the Tribunal in finding that police are ordinarily called to assaults when there was no evidence to that effect and no explanation for the finding in the Tribunal’s reasons for decision. Mr Acreman submits that police only attend if they witness an assault or are called by a party to the assault or a witness. He contends that minor assaults are typically resolved without intervention. Accordingly, he says the Tribunal erred in finding otherwise in the absence of evidence. [84] Again, the alleged error, even if it is made out, which we do not accept, is immaterial to whether Matter 2 is properly substantiated. [85] However, in case we are wrong we make the following observations. Assaults by citizens on other citizens threaten peace and good order. Broadly, the function of police service includes the preservation of peace and good order. The role is enshrined in legislation.37 It is so well known that the Tribunal was entitled to take judicial notice in the absence of specific evidence that police may be called to intervene when threat is made to peace and good order, such as when an assault of a citizen by another occurs. [86] If it was necessary for us to do so, we would find no error by the Tribunal. Alleged error of law in failing to consider the relevance of Matter 1: no misconduct in identifying himself as a police officer to prevent repeat behaviour by complainant [87] Given that Matter 1 was found not substantiated and that one specified component of it involved identifying himself as a police officer, Mr Acreman submits that the Tribunal erred in failing to consider that relevant matter. In particular, he argues that by failing to give due consideration to the fact that it was considered appropriate for him to do so, the Tribunal failed to then consider the progression to him considering possible prior assaults and domestic violence. [88] For the reasons earlier explained, this alleged error raises a matter that is not relevant to whether Mr Acreman’s actions in accessing QPRIME were taken in an official capacity. The Tribunal was not in error in failing to consider it. Alleged error of law in failing to give consideration to expectation of a broader view of the event and possible contributing factors as part of a police officer’s duties [89] In essence, Mr Acreman submits that QPS instils in police officers, and especially Commissioned Officers, the need to take a strategic approach to crime prevention by adopting a broad view. As it was not found unreasonable for him to have identified himself as a police officer in respect of Matter 1, which was found unsubstantiated, with a view to discouraging the complainant from future assaults on other persons, Mr Acreman argues it should not be considered unreasonable for him to act on his suspicions that similar incidents may previously have occurred and others may occur in future. Mr Acreman says that the Tribunal erred in failing to consider his actions in following up legitimate concerns in line with community expectations and his duty. 37 Police Service Administration Act 1990 (Qld), s 2.3 (the PSA). -- 25 of 55 -- 26 [90] We do not accept that the Tribunal erred in the manner contended by Mr Acreman. For the reasons earlier explained, taking a preventative or proactive approach in these circumstances would not result in Mr Acreman personally taking official action, only reporting the incident and his concerns in his private capacity to another officer at the relevant police station or police unit. Alleged error in classifying the conduct in Matter 2 as misconduct [91] If Matter 2 is substantiated, Mr Acreman contends that his actions did not meet the definition of misconduct, but rather was a (less serious) breach of discipline. He says that in the particular circumstances, in light of his motivations in following up on legitimate concerns arising from his suspicions of domestic violence and other assaults, the conduct should not be regarded as misconduct. [92] The Tribunal found, and we agree, that Mr Acreman accessed information on QPRIME without an official purpose related to his duties as Detective Inspector on secondment at the CCC. It found that the conduct did not meet the standard of conduct the community reasonably expects of a police officer and was therefore misconduct.38 [93] As discussed earlier, the evidence suggests that Mr Acreman acted altruistically with the intention of protecting members of the public. There is no evidence to suggest that he was motivated other than by genuine concern. He gained nothing through his actions and ceased them as soon as he found that the complainant had no relevant history. [94] He was not accessing the records out of mere curiosity;39 or to obtain information to pass on the other persons who may benefit from it or for his own benefit.40 Further, he did not disclose the information to any person.41 [95] Here, where the Tribunal accepted (as do we), Mr Acreman’s evidence as to his motivation for the access42 whether the conduct in accessing QPRIME is conduct that is does not meet the standard of conduct the community reasonably expects of a police officer may on the surface appear less clear. Would a member of the public expect a senior police officer to make enquiries for the potential safety of the complainant’s partner and other members of the public with a view to making an intelligence submission, following an unfortunate off-duty event as occurred here? [96] The inaction of all segments of society, and perhaps, police officers in particular, in failing to take adequate steps or appropriate action to protect victims of domestic violence from further abuses has been widely and very publicly criticised in recent years as the abuses of domestic violence have gained an appropriately higher profile and significance in Australian public dialogue and consciousness. Further, Mr Acreman was motivated by concerns that other persons who came to view the household appliance may be subjected to similar conduct. In this context, the 38 Reasons, [37]–[38]. 39 Assistant Commissioner Brian JA Wilkins & Anor v Gunter (No. 2) [2021] QCATA 42. 40 Cf CCC v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96 (‘Miers’ case’); Spencer v Assistant Commissioner McCarthy [2019] QCAT 375; Frazer v Assistant Commissioner Condon [2016] QCAT 271, [48]. 41 Cf O’Brien v Assistant Commissioner & Anor [2021] QCATA 12; Frazer v Assistant Commissioner Condon [2016] QCAT 271, [48]. 42 Reasons, [35]. -- 26 of 55 -- 27 argument that Mr Acreman’s diligence in attempting to do something to protect a member or members of the public is not conduct of a lesser standard than the conduct the community reasonably expects of an officer may at first glance appear to have some attraction. [97] However, the argument does not bear scrutiny, largely for reasons already explained in dealing with other grounds of appeal. We expand on the relevant matters here. [98] A police officer may access QPRIME only for purposes directly connected to the official duties which he or she is currently required to undertake. In Assistant Commissioner Brian JA Wilkins & Anor v Gunter,43 a similar situation was considered by the Appeal Tribunal. In that case the officer, who had engaged building contractors to undertake building work, became suspicious that they may engage in criminal activity. The officer decided to undertake some background checks on QPRIME. He was the subject of disciplinary proceedings for accessing QPRIME without an official purpose. The Tribunal, at first instance, found that the QPS Standard of Practice did not prohibit police officers from ‘checking up on someone whom they reasonably suspect of criminal activity merely because that officer has some personal or commercial relationship with the person’.44 However, the Appeal Tribunal found that in doing so the officer was not engaged on a routine official police purpose relating to his duties as a police officer. Of note, the Appeal Tribunal said: Even if Sergeant Gunter’s explanation for his QPRIME inquiries regarding other persons is accepted at face value, such inquiries were not in the performance of his duties as a police officer. He was not allocated such investigations by his superior officers and did not seek the permission of his superior officers to conduct such investigations. Sergeant Gunter’s status as a police officer did not confer upon him an unlimited power to investigate suspected criminal offences as he saw fit. In the absence or authorisation of his investigations by his superiors, the QPRIME inquiries cannot reasonably be regarded as being with an official purpose in the performance of his duties as a police officer. In the circumstances of this matter, it was not reasonably open to the learned Member to find otherwise.45 [99] Further, should it be decided by QPS that in Mr Acreman’s circumstances it is appropriate to take action against the complainant, Mr Acreman would become a material witness in relation to any charge against the complainant in circumstances that he was not on duty at the time of the relevant events, and which did not occur in the context of performance of his official duties. [100] As discussed earlier, Mr Acreman submits that he was obliged by his oath of office to take the steps he did in the course of his duties, suggesting that if it was not so, even if an officer became aware of serious criminal behaviour in his private life, the officer could not act upon it. However, police officers are tasked with particular functions at any given time depending upon their position. Mr Acremen was on secondment to the CCC (as Inspector Integrity Services) at the time of the QPRIME access. Even if the information he became aware of in his private capacity was worthy of police investigation, it was, simply put, not his role to investigate it. 43 [2021] QCATA 42, [23]. 44 Gunter v Assistant Commissioner Wilkins [2019] QCAT 410, [51]. 45 Assistant Commissioner Brian JA Wilkins & Anor v Gunter [2021] QCATA 42, [63]. -- 27 of 55 -- 28 [101] As earlier discussed, he could of course report the incident to another officer whose job it was to receive such a report. It would then be for the officer to whom the report is made to make such enquiries and take any action as may be appropriate, including making an intelligence report. If it was otherwise, an officer would be entitled to make enquiries and investigate and advance issues or perceived issues according to their personal grievances or experiences in their private life, about which they may not be objective, and which may advance some personal interest. [102] Members of the public would be rightly concerned about subjectively motivated police officers and the potential for inappropriate, and potentially maliciously motivated, deployment of police resources. A police service which operated in this manner would be a fertile environment for corruption and pervasive misuse of public resources to flourish. It would undermine public confidence and trust in the police service. [103] There is no avoiding the fact that Mr Acreman accessed QPRIME without an official purpose. [104] As a consequence, his conduct does not meet the standard of conduct the community reasonably expects of a police officer, because it is conduct that tends to undermine public confidence and trust in the police service. [105] It is therefore properly categorised as misconduct, as the Tribunal found. [106] As acknowledged by the Deputy Commissioner in his reasons for decision, in the particular circumstances it is misconduct at the less serious end of the spectrum. That is because there is no suggestion that he was motivated to act for reasons of personal interest or gain or that he used the information accessed on QPRIME for some other untoward purpose. That would make the conduct more serious. A more significant sanction would flow. That it is at the lower end of the spectrum of seriousness does not affect its classification as misconduct. [107] It is no doubt because it is less serious on the spectrum that a reprimand alone was imposed by way of sanction, when typically the sanction for accessing QPRIME without an official purpose involves a reduction in pay-points.46 46 E.g. O’Brien v Assistant Commissioner Taylor & Anor [2021] QCATA 12, wherein the Appeal Tribunal found no error in the Tribunal’s decision on sanction in O’Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 27; CCC v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96; Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375. -- 28 of 55 -- 29 Disposition: substantiation of Matter 2 as misconduct [108] The Tribunal erred in exercising its discretion and the appeal should be allowed. However, for the reasons explained, Matter 2 was properly substantiated and classified as misconduct. [109] Therefore, the Tribunal’s decision about Matter 2 should be confirmed. Matter 3 The Tribunal’s reasons for decision [110] It is uncontroversial that Mr Acreman accessed the information which is the subject of Matter 3. [111] The learned Member proceeded on the basis that, as confidentiality was a feature of the charge,47 against Mr Acreman, the Deputy Commissioner had to establish to the requisite standard that Mr Acreman knew the documents were confidential and that he should not have accessed or read them once he realised what they were. [112] The Tribunal accepted Mr Acreman’s evidence that when he accessed the folder containing the four documents he was of the view that it was accessible to anyone within the QPS. The learned Member recited his evidence on that point in her reasons.48 She found that he formed an honest belief – at the time he accessed the documents – that the documents were generally accessible.49 She further acknowledged Mr Acreman’s concerns that: other persons in the QPS had access to the confidential documents; that they were left in the folder to keep them from the investigators; and that there were no references to indicate the file server was under the management of ESC.50 [113] In substantiating the Matter 3 against Mr Acreman, the Tribunal found that Mr Acreman accessed the secure QPS computer system via password and subject to relevant policies and directions of the Commissioner.51 It accepted the need to maintain confidentiality of information in QPS system generally,52 and that the four relevant documents contained in the file were at all times confidential having regard to the security and confidentiality of the QPS computer system which required 47 Reasons, [43]-[46]. 48 Ibid, [45]. 49 Ibid, [42]. 50 Reasons, [48]. 51 Ibid, [44]. 52 Ibid, [44]. -- 29 of 55 -- 30 password access.53 Further, the Tribunal found that it was not reasonable for Mr Acreman to form the belief that confidentiality in the four documents had been waived at the time he accessed those documents.54 [114] In considering the question of confidentiality, the Tribunal had regard to s 4 of the Information Management Manual, in particular s 4.13, which restricts the right of police officers to access information in the system. Information, under the Manual, must be given and accessed on a ‘need-to-know basis’ and must be relevant to the performance of the officer’s duties. It is not permissible, under the Manual, to simply access information for personal curiosity or convenience to obtain general information about a particular subject. The learned Member said:55 Further, access to information and information systems should be on a ‘least privileged basis’ meaning that QPS personnel are assigned the minimum set of rules required to perform their authorised duties. [115] The Tribunal found that Mr Acreman, as an experienced officer and an Inspector, should be well aware of the relevant security and confidentiality requirements. [116] The learned Member refers to there being no evidence that Mr Acreman made any enquiries about the documents before reading them and emailing them to his private email account. [117] The learned Member accepted the Deputy Commissioner’s submission that once Mr Acreman accessed the L:Drive and saw the relevant investigative folder which named the complainant, his partner and the other officer, he should not have gone further and should have reported the matter to his supervisor.56 Further, having opened the files, he should have immediately identified the confidential nature of the material which was not relevant to the performance of his duties. [118] The Tribunal found that Mr Acreman had improperly accessed official and confidential information without an official purpose and emailed it to himself without authority. It found Matter 3 substantiated and that the conduct was improper and does not meet the standard reasonably expected by the community of a police officer.57 Therefore, it was found to be misconduct. Mr Acreman’s grounds of appeal in respect of Matter 3 [119] Again, Mr Acreman raises numerous grounds of appeal. They are summarised as follows: (i) alleged error of law and fact: insufficient evidence to support a finding that documents in a general file server are held confidentially; (ii) alleged error of law: the evidence does not support a finding that Mr Acreman should have resisted the temptation to look at the information; 53 Ibid, [46]. 54 Ibid, [43]. 55 Ibid, [45]. 56 Ibid, [52]. 57 Ibid, [54]. -- 30 of 55 -- 31 (iii) alleged error of fact in finding that Mr Acreman looked at the documents after his supervisor warned him not to do so; (iv) alleged error of law and fact in reversing the onus of proof by rejecting Mr Acreman’s evidence about his experiences at the CCC because he did not provide corroborating evidence, and not accepting that because of those experiences it was necessary for him to secure the evidence; (v) alleged error of law in failing to give due consideration to the evidence supporting a need for Mr Acreman to secure the documents; (vi) alleged error of law and fact in finding inconsistently with the evidence that the information on the file server ‘was at all times secure’; (vii) alleged error of law and fact in finding, in the absence of evidence to support the finding, that the documents had formed part of the QPS disciplinary investigation; (viii) alleged error of law in failing to give due consideration to evidence that supported a finding that the documents were actually excluded from the disciplinary investigation; (ix) alleged error of law in failing to give due consideration to the documents being instrumental in Matter 1 being found unsubstantiated: (x) alleged error of law in failing to give reasons for its finding that Mr Acreman did not make enquiries about the documents prior to securing them; and (xi) alleged error of law in finding the conduct was misconduct. [120] We deal with the grounds of appeal below in discussion, but also, in case we are wrong in reaching our conclusions about the PID issue briefly address them individually. Most of the grounds of appeal (at least, (i), (iv)-(ix) and (xi)) raise issues relevant to Mr Acreman’s submissions before the Tribunal to the effect that he took many of the actions he did in order to report and provide evidence of, whether accidental or deliberate, maladministration in the management of documents related to the disciplinary investigation into his conduct. Although the Tribunal considered Mr Acreman’s evidence about his concerns to secure the statements he found on the L:Drive, that evidence was not considered in the context of a public interest disclosure under the Public Interest Disclosure Act 2010 (Qld) (the PID Act). [121] At [48] of the Tribunal’s Reasons, it records some parts of an extract from Mr Acreman’s evidence. We repeat the extract without redactions here. : My concern in this regard was based on my direct experience in overviewing ESC Investigations and identifying instances where material had been left out of the investigation file. 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 -- 31 of 55 -- 32 documents was. I knew this was the case from my role at the CCC as I knew the file servers used by the QPS (as opposed to certain CCC ones), were not subject to security auditing software. 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 else I sent them to myself. [122] Although the Tribunal did not include it, Mr Acreman’s evidence continued as follows: I am aware from my role at the CCC that the QPS computer system uses security auditing software. I know this software only operates on specific systems such as QPrime and also the QPS CSS database. I know it does not operate on the QPS file servers (which is where the documents were located). I know it does not operate on the QPS internal email system. I know it does not operate to capture emails sent and received externally from the QPS. For this reason, I sent the documents to my private email account. I knew this would trigger security software and preserve the documents. [123] As discussed, the Tribunal accepted Mr Acreman’s evidence to the effect that, when he accessed the folder, he believed the information was accessible ‘by anyone in the QPS.’58 His evidence is supported by the evidence of his supervisor, Acting Superintendent S,59 which was extracted by the learned Member 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 ‘[officer T]’ 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 (sic), 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.” 58 Ibid, [40]; noting that he maintained this at interview in Exhibit 4, interview 15 March 2016, Appeal Book, p 1149. 59 Reasons, [41]. -- 32 of 55 -- 33 I said, “What else is in there? Is it the whole thing?” Acreman said, “There’s other document (sic) 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 (sic) 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….60 [124] Mr Acreman’s evidence is that he asked Acting Superintendent S to contact ESC to have the documents secured and advised him of his concerns that the documents had been excluded from the disciplinary investigation.61 Acting Superintendent S deposes to advising Mr Acreman that he would look into where the files were located and their security. He says that he discussed it and met with other officers that day.62 [125] Mr Acreman deposes to then being told that the file server was an ESC file server and that he was now under investigation for computer hacking and misuse of information.63 [126] Mr Acreman’s evidence is uncontested. The extract from the evidence of Acting Superintendent S supports Mr Acreman’s evidence. The Tribunal accepted that Mr Acreman had an honest belief at the time that the documents were accessible by anyone with access to the QPS computer system,64 but discounted it as relevant relying upon general submissions of the Deputy Commissioner, despite the absence of evidence before it about accessing general folders, security of the QPS computer system and the application of the IMM from the Deputy Commissioner. [127] On a fair reading, while the Tribunal acknowledged the importance of the documents which disclosed allegations made by the complainant that were inconsistent with the questions asked of him in the disciplinary interview with Detective Inspector M, (but which were apparently excluded from the disciplinary investigation), it appears it did not consider the relevance of those matters or make any findings which supported disregarding them.65 As extracted earlier, Mr Acreman’s uncontested evidence was that in the course of his official duties on secondment to the CCC, he had encountered other situations where this had occurred. Furthermore, there is no dispute that as soon as he was able to, the day following his medical procedure, Mr Acreman reported his discovery and brought the documents to the attention of his supervisor, 60 Ibid, [41]. 61 Affidavit of Mr Acreman dated 22 February 2018, paras [64-67]. 62 Appeal Book, Statement of Acting Superintendent S, pages 347–348. 63 Affidavit of Mr Acreman dated 22 February 2018, para [70]. 64 Ibid, [40]–[42]. 65 Reasons, especially at [48]. -- 33 of 55 -- 34 Acting Superintendent S. Once he had done this, he deleted the documents from his private email account without looking at them again. [128] Mr Acreman says he emailed the documents to his private email account to ensure that there could be no dispute at a later time that the documents did in fact exist and were relevant to his disciplinary proceeding. [129] The non-disclosure of the content of the documents in the investigation by way of putting the various versions of events documents to him and in the disciplinary brief when Matter 1 was brought against him, or at all in respect of Matter 1, is troubling. [130] We pause to observe here that this is particularly so having regard to the correspondence to him from the CCC of 10 November 2015, advising him that QPS had informed it that Matters 2 and 3 of the initial complaint had been substantiated, but Matter 1 (as referred to in the correspondence set out earlier) had not. The particulars of Matter 1 in the disciplinary charge are broader than Matter (1) as referred to in the letter to the CCC of 10 November 2015, (encompassing the allegations of Matters (1) and (2) in the CCC letter, as well as additional allegations and particulars) including failure to leave the property when requested and standing over the complainant when identifying himself as a police officer.) [131] Matter (1), as referred to in the CCC letter, was recorded as unsubstantiated. It would seem reasonable to infer that the contents of the CCC letter reflect advice to the CCC from the QPS about the investigation. Nevertheless, the allegations of assault by way of grabbing the complainant around the neck and assaulting him, formed part of Matter 1 of the disciplinary charges later faced by Mr Acreman. As set out earlier, the disciplinary charge in Matter 1 included the allegations against Mr Acreman that he assaulted the complainant by grabbing him around the neck and assaulting him by grabbing his shirt and shaking him violently. While the latter specific allegation of grabbing the complainant’s shirt and shaking him violently was not referred to in the CCC letter, Matter (1) as set out therein related to ‘Assault/Use of excessive force’. [132] Although it is not a matter for the Appeal Tribunal in these proceedings, we make the observation that if a PID was made by Mr Acreman, the inclusion of the assault allegations raise potentially serious concerns in light of the prohibition against reprisal.66 [133] Returning now to consider the matters before us. After considering this evidence, the learned Member made a finding as follows: 66 PID Act ss 40-41 -- 34 of 55 -- 35 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. 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.67 [134] Mr Acreman does not dispute the information contained in the folder was confidential in nature. He says it should have been kept secure by QPS, but wasn’t. He submits the responsibility for it not being kept confidential lies with the QPS and, here particularly, officers in the ESC in causing or allowing it to be in general folder accessible to him and, he believed, any serving police officer. He says this was, at best, maladministration. Indeed, the evidence before the Tribunal, although not addressed by it, was to the effect that only officers authorised by ESC have access to ESC folders, and only when they require it for their duties in ESC. Mr Acreman was not aware he had, or had ever had, access to ESC folders; had not been told he had access to them; and had not ever used the access. QPS did not provide evidence inconsistent with Mr Acreman’s evidence. Further, Mr Acreman was not at the time he accidentally accessed the folder and documents in a QPS position that required he have such access to perform his duties. Further, the folder containing the documents was not identifiable as an ESC folder. [135] It is evident from the reasons that the learned Member did not address the question of whether Mr Acreman’s conduct amounted to a PID and, if it did, whether he was afforded any protection under the PID Act. To be fair, the question of whether it was a PID, as defined in the PID Act, was not raised in those specific terms and nor was the PID Act referred to by Mr Acreman. That said, Mr Acreman’s submissions make it apparent that he saw the events in this way, irrespective that he did not use that terminology. Public Interest Disclosure Act 2010 [136] One of the main objects of the PID Act is to promote the public interest by facilitating public interest disclosures of wrongdoing in the public sector. The public sector includes a ‘public sector entity’ which also includes a department of the public service and specifically includes the QPS.68 Therefore, there is no doubt that the PID Act applies to the QPS, as conceded by the Deputy Commissioner. What is a PID? [137] Disclosures by public officials are dealt with in ss 13 and 17 of the PID Act and for these purposes it is accepted by the Deputy Commissioner that Mr Acreman is a public official for the purposes of s 13.69 The section provides relevantly, that: 67 Reasons, [50]–[51]. 68 PID Act, s 6(1)(f) – Note. 69 Respondent’s submissions, 16 April 2021, [8]; See also Transcript, 13 May 2021, I-5, lines 23-25. -- 35 of 55 -- 36 (1) This section applies if a person who is a public officer has information about – (a) the conduct of another person that could, if proved, be - (i) corrupt conduct; or (ii) maladministration that adversely affects a person’s interests in a substantial and specific way; … (2) The person may make a disclosure under section 17 in relation to the information to a proper authority. (3) For subsection (1), a person has information about the conduct of another person or another matter if – (a) the person honestly believes on reasonable grounds that the information tends to show the conduct or other matter; or (b) the information tends to show the conduct or other matter, regardless of whether the person honestly believes the information tends to show the conduct or other matter. [138] The matter in which the disclosure is made is set out in s 17, and it provides that: (1) A person may make a disclosure to a proper authority in any way, including anonymously. … (5) If a public interest disclosure is properly made to a proper authority, the proper authority is taken to have received the disclosure for the purposes of this Act. [139] Under s 13(1)(a), there are two bases for upon which disclosure about conduct of another person can be made. Firstly, if the public officer has information in respect of conduct that could be ‘corrupt conduct’. Secondly, if the public officer has information in respect of conduct that could be ‘maladministration that adversely affects the person’s interests in a substantial and specific way’. Immunity and Liability for own Conduct [140] Section 36 of the PID Act protects a person who makes a public interest disclosure. It provides as follows: A person who makes a public interest disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action for making the disclosure. [141] However, the Deputy Commissioner submits that Mr Acreman is caught by s 39 of the PID Act, which provides that: A person’s liability for the person’s own conduct is not affected by the person’s disclosure of that conduct under this Act. -- 36 of 55 -- 37 Did Mr Acreman make a PID? [142] The Deputy Commissioner concedes that the four documents which Mr Acreman accessed should not have been accessible by him or any other person not involved in the disciplinary investigation as these were confidential documents in respect of Mr Acreman’s investigation.70 Neither Mr Acreman, nor any other member of the QPS not involved in the disciplinary investigation, should have been able to access these documents. Further, he accepts that the file was not identifiable as an ESC file.71 On this basis, it was conceded, during the course of the oral hearing, that the existence of those documents in a general file accessible by Mr Acreman could amount to maladministration if Mr Acreman’s interests are adversely affected in a substantial and specific way.72 Corrupt conduct [143] As for corrupt conduct, the Deputy Commissioner refers to s 15 of the CC Act which sets out the meaning of ‘corrupt conduct’. The section provides: (1) Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that – (a) adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of – (i) a unit of public administration; or (ii) a person holding an appointment; and (b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that – (i) is not honest or is not impartial; or (ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or (iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and (c) is engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person; and (d) would, if proved, be – (i) a criminal offence; or (ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment. 70 Transcript 13 May 2021, page I-7, lines 17–22. 71 Transcript 13 May 20021, page I-14 line 10 – I-15 line 1. 72 Transcript 13 May 2021, page I-6, line 40- I-7 line 40. -- 37 of 55 -- 38 [144] Mr Acreman submits that the conduct in failing to disclose the documents could amount to corrupt conduct on the following basis: (a) there was, what he describes as, an inappropriate association between the complainant and the person to whom the complaint was made, Officer T, who was the officer in charge of the police station where the complaint was made; (b) that the investigating officers in the ESC failed to secure the confidential information in respect of those four documents because they related to disciplinary charges against Mr Acreman and were available for him and, he believed, any other police officer to see; (c) the failure by Detective Inspector M – who conducted the initial interviews into the complaint – to, if not disclose the documents, at least to put to Mr Acreman the various allegations that the documents contained; that is, including inconsistent allegations or statements of the complainant which might have been relevant to the outcome of the investigation, any relevant disciplinary process that followed and Mr Acreman’s defence; (d) generally withholding vital evidence from an investigation and/or disciplinary proceeding to Mr Acreman’s disadvantage. In particular, the four documents were not disclosed to him with the bundle of documents relevant for Matter 1. (The Deputy Commissioner conceded that they would not have been disclosed at any time, had the allegations in Matter 3 not been made.) [145] For there to be a finding of ‘corrupt conduct’, the definition has to be met. The Deputy Commissioner submits that the difficulty for Mr Acreman here is that the elements of the definition are cumulative rather than singular. That is particularly apposite having regard to s 15(c) of the CC Act which requires that the conduct, if proved, would be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person’s services. Although the circumstances surrounding the existence of the documents in the folder, its location and their use in the disciplinary interview and the disciplinary process that followed may excite suspicions about what was actually going on, it is difficult to see how this could result in a criminal offence. Further, it is not readily apparent, in the event that a disciplinary allegation was made against another officer for withholding of the documents or for failing to secure them so that they were accessible only to those involved in the investigation, whether it would provide reasonable grounds for termination of the person’s service. This might depend upon circumstances including whether the action/s was/were inadvertent or deliberate and malicious. [146] To satisfy s 13(1) of the PID Act, Mr Acreman also has to establish that he had reasonable grounds to believe that the non-disclosure of the relevant information and/or documents in the disciplinary process amounted to corrupt conduct. The factual basis underling that belief, as he put it, is that: (a) there was a breach of information security by the ESC in making the documents relating to his investigation available in a general access folder for Mr Acreman and, he believed, all QPS officers to read; (b) the documents revealed an association between the complainant and Officer T, who took the initial complaint evidenced by a private meeting between them subsequent to the making of the complaint. Further, the complainant enquired -- 38 of 55 -- 39 whether Mr Acreman had taken any action in respect of the incident, and Officer T, presumably having searched the system, told the complainant he had not; (c) at least some of the complainant’s versions of the events as recorded in the statements were inconsistent with what was put to Mr Acreman in the interview with Detective Inspector M; and (d) the fact that the only documents in the folder were the four documents which led Mr Acreman to believe they had been ‘set aside, overlooked or excluded from the investigation’ because the documents ‘greatly affect the credibility of the complainant’. It was obviously to Mr Acreman’s detriment if the documents were excluded from the disciplinary process, in that he could not receive the benefit of their content in the disciplinary investigation/process.73 [147] Accepting Mr Acreman held an honest belief as to these matters, it still must be established, objectively, that the conduct amounted to ‘corrupt conduct’. [148] Officer T not only took the initial complaint but thereafter engaged in a further informal discussion about the incident ‘over coffee’ with the complainant. There is no complaint from Mr Acreman that Officer T, as the officer on duty at the time the complaint was made, acted other than entirely appropriately in receiving the complaint and referring it to the ESC. Mr Acreman acknowledges that he did so. However, Officer T met the complainant for coffee and provided information to the complainant about whether Mr Acreman had made a complaint about his conduct. This reasonably raises some suspicion about Officer T’s motivations in context of his previous involvement with Mr Acreman, who had previously conducted an investigation into Officer T’s conduct. Mr Acreman says that this could be a reason why the documents were quarantined in a separate folder. [149] The difficulty with this contention is that there is no evidence to link this suspicion, or Officer T, with Mr Acreman’s specific complaints about withholding or non- disclosure of the complainant’s statements and/or the complainant’s version of events being put to him so he was aware of the inconsistencies and the ‘quarantining’ of the documents in a separate folder. That being the case, it creates an obstacle to establishing corrupt conduct within the definition. [150] Also, turning to the actions of Detective Inspector M, even though the complainant’s various versions were not put to Mr Acreman by him, (despite briefly alluding to the written statement in his report), no official decision about disciplinary action into the incident had been made. That is, there had been no decision about whether to bring any charge against Mr Acreman for misconduct. It seems that this did not occur until after Mr Acreman inadvertently accessed the documents. [151] As discussed earlier, it was only after Mr Acreman accidentally located and accessed the documents that disciplinary allegations were then brought against him, not only in respect of the accessing of the documents in the folder, but also in respect of the events related to the complainant. 73 Applicant submissions 29 March 2021, p 2. -- 39 of 55 -- 40 [152] For the reasons stated, although Mr Acreman may have believed the conduct was corrupt, the evidence of the events does not establish that it was corrupt conduct within the definition. Maladministration [153] Maladministration is defined in Schedule 4 of the PID Act. Relevantly, it includes under sub-paragraph (g) an administrative action that ‘was wrong’. If the conduct of ESC officer/s in placing the documents in the separate folder might be accepted as wrong and might amount to maladministration, then the Deputy Commissioner submits that Mr Acreman must establish that the maladministration adversely affects his interests in a substantial and specific way. Here, the Deputy Commissioner contends that Mr Acreman was not adversely affected because the documents were only relevant to Matter 1 and it was not substantiated. The difficulty with the Deputy Commissioner’s contention is that the determination of whether Mr Acreman was adversely affected must be considered at the time of the disclosure, not after the disciplinary process has been completed. [154] Apart from the letter of the CCC of 10 November 2015, there had been no formal notification of the outcome of Detective Inspector M’s investigation after his record of interview with Mr Acreman on 9 September 2015. However, Detective Inspector M’s recommendations were based on, amongst other things, two statements made by the complainant; the first on the day of the incident and the second when interviewed by Detective Inspector K on 26 July 2015.74 [155] At the time Mr Acreman accessed the documents in the folder on the L:Drive there had been no formal decision communicated to Mr Acreman by QPS after Detective Inspector M delivered his report in respect of the initial complaint. However, it is reasonable to infer, and we do, that some decision process was undertaken resulting in QPS advising the CCC of the information set out in the CCC’s letter of 19 November 2015. After Mr Acreman accessed the documents in the L:Drive, the fact that he did so was referred to the ESC, and a further interview was then conducted with Detective Inspector H. [156] The relevance of this sequence of events is that Mr Acreman, having seen the documents which had not previously been shown to him, or the contents put to him by Detective Inspector M, remained concerned that a disciplinary matter (which was subsequently brought against him as Matter 1) might still be brought against him and substantiated. Had he been aware of the content of the documents, and what he refers to as inconsistencies, he may well have been in a better position to rebut the complaint in the investigation process. By withholding the documents or not informing him of their content or putting their contents to him during the interview process, he says he was denied procedural fairness. In other words, he says that he was adversely affected. [157] Another consideration, accepting that the documents may have been of assistance to his response to the complaint, is how the documents came to be in a separate general ESC file/folder accessible by Mr Acreman, not identifiable as an ESC file, (and apparently not forming part of the disciplinary investigation). This has not been satisfactorily explained by the Deputy Commissioner in circumstances where the 74 Appeal Book, p 134. -- 40 of 55 -- 41 Deputy Commissioner in fact concedes that the accessibility of the documents in the general folder could amount to maladministration under s 13(1)(a)(ii) of the PID Act. [158] The Deputy Commissioner also contends that Mr Acreman does not satisfy s 13(3) of the PID Act because he did not honestly believe on reasonable grounds that the information he had about the conduct revealed by the existence of the folder and the information contained in the folder, if proved, amounted to maladministration. The Deputy Commissioner specifically relies on evidence accepted by the learned Member at the hearing that Mr Acreman believed the information was generally available to members of the QPS; however, that does not address the specific issue of disclosure under the PID Act. [159] Mr Acreman’s specific concerns were that his confidential information was not being maintained securely as well as – having regard to his unchallenged evidence of his experience in the CCC about the non-disclosure of relevant documents in the disciplinary investigation, that is – the conduct in not putting the allegations in these four documents to Mr Acreman in the investigation. This raised an issue of the possibility of corrupt conduct at worst, or maladministration at best. We therefore conclude that Mr Acreman had a basis to honestly believe there had been maladministration that adversely affected him in a substantial and specific way; namely, in failing to protect his right to confidentiality and his ability to defend against an open disciplinary investigation into his conduct concerning the complainant. [160] Even if Mr Acreman made a PID, the Deputy Commissioner submits that he is not entitled to immunity pursuant to s 36, and is caught by s 39 of the PID Act. If the documents, having been placed in the folder on the L:Drive, were accessible by Mr Acreman and other members of the police service generally, the Deputy Commissioner submits that once Mr Acreman (and presumably any other member of the QPS who might have accessed them) realised what the documents were, he should have then stopped, not opened the documents and not taken any further action. It was at that point he ought to have informed a supervising officer, for example, Acting Superintendent S, of the existence of the documents. In paragraph 28 of the Deputy Commissioner’s submissions, the proposition is put as follows: The gravamen of the charge was that the appellant had access to documents relating to an investigation in which he was the subject officer. The appellant could not know what was contained in the documents unless he accessed them. As noted above, the findings of Member Brown were that the appellant accessed the documents because he believed they were not confidential. He did not have an honest and reasonable belief the documents contained evidence of corrupt conduct before accessing them and any such belief he may have later formed, did not excuse his conduct at the time. Had the appellant believed the documents may have contained evidence of corrupt conduct and accessed them for the purpose of making a public interest disclosure, his actions may have been justifiable. But the appellant had not (sic) idea what was contained in the documents and accessed them out of curiosity. [161] Mr Acreman makes the obvious response to this submission that, until he accessed and read the documents, he did not, and could not, know the significance of the content of the documents. There would be no basis upon which he could form an honest belief as required by s 13 of the PID Act as whether the content of and the existence of the documents in the folder could amount to maladministration. He accessed the documents accidentally. When he read the documents he realised immediately that -- 41 of 55 -- 42 the documents were about the complaint against him and should form part of the investigation and knew that neither the documents, nor the substance of the inconsistent versions, had been disclosed. This was the only way he came to know that the documents were relevant and that they ought to have been securely held for privacy reasons. [162] Also, realising what they were, Mr Acreman also says that because the documents or at least their content had not been disclosed to him or put to him up until that point in time and because of his then recent experience of becoming aware in his role at the CCC of similar events, he could have no confidence that, if he simply reported it to a supervisor (i.e. Acting Superintendent S), the documents would be considered in the disciplinary process and provided to him in any event. Rather, his evidence and submissions are to the effect that they could disappear and there would be no record they had ever existed. His concerns that this might occur does not appear to be unreasonable having regard to the history of how the investigation proceeded and his prior experience at the CCC. Indeed, it would appear that his concerns are borne out. The documents were not disclosed to him in relation to Matter 1, and the Deputy Commissioner concedes that they would not have been disclosed to him at all, if not for Matter 3. [163] We have concluded that it was not unreasonable for him to read the documents in these particular circumstances. He did not go looking for the documents. As the Deputy Commissioner concedes, he located them accidentally and then read them. In any event, until he read them, he did not reasonably know what they were or the information they contained. He did not at any time seek to hide his behaviour. Accepting his uncontested evidence on this point, he could have accessed the documents, printed them and read them without anyone ever knowing or being able to detect his actions. However, consistently with his version of events, he reported the alleged maladministration to his supervisor at the earliest possible time. The QPS only knew of his access to the documents because he reported it. In being open and honest about it, Mr Acreman made himself vulnerable to, and indeed, here subject to, additional disciplinary investigation and later charges; namely, Matter 3. [164] Further, he says he secured the document while waiting to report the information to Acting Superintendent S. by emailing the documents to his private email so that an audit trail was created and the existence of the documents could be later established. Although the Deputy Commissioner submits he could have just as easily emailed them to his QPS email, we accept Mr Acreman’s evidence, it being the only evidence on the point, that by doing this, the attachments would not be captured by the system.75 This was not actively challenged by the Deputy Commissioner. [165] Thereafter, Mr Acreman’s conduct is consistent with that which is prescribed by the PID Act and, by sending the documents to his private email to make certain there was an evidence trail. As is conceded, he was open and forthright in discussing the information with Acting Superintendent S at the earliest opportunity. He did not then give a copy of the information as contained in the emailed documents to Acting Superintendent S. This is unsurprising having regard to the response of Acting Superintendent S to his report as set out earlier, and the response of ESC in stating that he was now under investigation for computer hacking and misuse of information. 75 Appeal Book, p 243; also Transcript, p I-28, line 40. -- 42 of 55 -- 43 Conclusion on Public Interest Disclosure [166] Therefore, based on the evidence before the learned Member and the submissions from Mr Acreman and the Deputy Commissioner, we find that: (a) Mr Acreman, being a public officer: (i) did have information (namely, his own evidence/report about accidentally locating the documents, the screenshot of his desktop and the emailed copies of the documents, sent to himself at his private email address)76about the conduct of unknown person/s; (ii) which if proved could be maladministration (namely, placing his confidential information in a general folder accessible by persons not involved in the disciplinary investigation and placing documents relevant to the disciplinary investigation in a separate folder with the consequence that they were not considered, or the content disclosed as part of the investigation); (iii) which adversely affected his interests in a substantial and specific way (namely, that his personal information privacy/confidentiality was not secured in that persons not entitled to his confidential information had access to it; and that his ability to answer the allegations in the disciplinary investigation was compromised by the existence of a separate folder containing only 4 documents apparently not connected with his disciplinary investigation, and undisclosed to him or the content not put to him in the investigation ) (s 13(1)(a)); (b) Mr Acreman honestly believed on reasonable grounds that the information tended to show the conduct revealed maladministration (s 13(3)(a)); (c) in the circumstances, Mr Acreman was entitled to make and did make a disclosure (ss 13(2) and 17(1); and (d) To Acting Superintendent S who was a proper authority to whom the disclosure could be made (s 17(1) and 17(3)(d)). [167] The effect of these findings is that Mr Acreman – by disclosing to Acting Superintendent S the existence of the folder, the screenshot, and the content of the documents – made a public interest disclosure within the meaning of s 11 of the PID Act. Unfortunately, due to the response of those in his chain of command, the emailed documents were not then onforwarded, but in our view that does not alter that they were part of the information constituting the PID made by Mr Acreman. Is Mr Acreman entitled to Immunity or is he liable for his conduct? [168] The conduct complained of is particularised in Matter 3 but, in summary, it is accessing, and emailing to himself, the documents in the folder in circumstances where it is alleged Mr Acreman did not have authority to do so. The sequence of events to access the documents were explained by Mr Acreman as follows:77 76 Affidavit of Mr Acreman sworn 22 February 2018, paras [10]–[16] and [48]–[72]. 77 Transcript, p I-24; See also the particulars of Matter 3. -- 43 of 55 -- 44 (a) when you click on the folder it opens showing 4 documents; (b) one document had the title ‘Facts’ which was a summary of what the complainant told the reporting officer (presumably Officer T); (c) one document said ‘Emails’; and (d) one document said ‘Statements’. [169] It was not until he started reading the ‘Facts’ document that he realised the documents were about his disciplinary investigation. He also realised that the documents should not be in a general folder and accessible by him or other QPS officers generally, because they were confidential in nature and ought to have been securely held. [170] The Deputy Commissioner’s firm position is that Mr Acreman should have stopped when he realised what the documents were, and he knew he did not have access. The Deputy Commissioner argues that once he did this he crossed the line and breached the Information Management Policy and was then liable to disciplinary action. He submits that is because the access to what has been referred to as ‘confidential documents’ was without authorisation and not for an official purpose. Therefore, it is submitted, because Mr Acreman is liable for his own conduct, under s 39, he does not get the benefit of s 36. [171] There are a number of difficulties with this argument. The documents were confidential in nature and they should not have been in a place where they were accidentally accessed by Mr Acreman, or any member of the QPS who was not involved in the ESC disciplinary investigation. On the Deputy Commissioner’s argument, any person who happened upon them could look at the documents and not in fact realise their significance and then be subject to disciplinary proceedings. In any event, ironically, the evidence from Mr Bn, information technology officer, which was relied upon by the Deputy Commissioner in the review proceeding is that Mr Acreman was authorised to access ESC documents in ESC files; which these were, even though they were not distinguishable as an ESC file or documents. On one view, Mr Acreman had legitimate access to the file, even though he should not have had access given that it pertained to a disciplinary investigation about him. This was so even though Mr Acreman had no knowledge that he was so authorised and did not require access to perform his official duties. [172] Mr Acreman accidentally accessed the file containing the documents. He then read the documents. Until he read them, he could not know what they were, and he would not have been in a position to know to make the disclosure to Acting Superintendent S. Why would anyone report the existence of documents of some unknown content in a file they have accessed legitimately? It is a nonsense. Finally, the very purpose of the PID Act, as set out above, is to promote public interest disclosure where there is wrongdoing in the public sector. In our view, once Mr Acreman accessed the documents,apparently placed in a general access folder, and accessible by him, it was not unreasonable for him to read them, and then take the steps he did to secure the information and make the disclosure. [173] In the circumstances of this case, we are of the view that s 39 has no application and s 36 of the PID Act is engaged. Accordingly, Mr Acreman is not liable for disciplinary action as charged in Matter 3. -- 44 of 55 -- 45 [174] By reason of the protection afforded by s 36 of the PID Act, Matter 3 is not substantiated. This being so, the Tribunal’s decision confirming the substantiation of Matter 3, should be set aside. Observations about Mr Acreman’s stated grounds of appeal not referring specifically to making a PID [175] Although the Appeal Tribunal’s findings with respect to the application of the PID Act and the effects of s 36 are sufficient to dispose of the appeal in respect of Matter 3, in case we are wrong and there is a subsequent finding that the PID Act is not applicable, it is appropriate we make some observations concerning Mr Acreman’s grounds of appeal as originally framed by him, and as though the PID Act did not apply. Insufficient evidence to support a finding that the documents in a general file server are confidential [176] Most often, disciplinary charges are brought to unauthorised access to QPRIME records by officers, not other databases or folders. QPRIME records cannot be accessed accidentally, rather only be a deliberate act in searching the database. [177] Mr Acreman acknowledges that general access folders should not contain information about a disciplinary investigation and that the documents he inadvertently came upon should have been confidential and secure. However, he says it is not reasonable to consider a document in a general folder is being treated as confidential if it can be accessed by an officer, read, copied or deleted without any record of that being created in the QPS system. He contends that the QPS had failed in its responsibility to ensure the confidentiality and security of the documentation. Once he had secured the documents, he sought advice before dealing with them in any way. Whether the PID Act applies or not, for the documents to be unsecured from Mr Acreman (and others not involved in disciplinary investigations) amounts to maladministration and the relevant question is whether Mr Acreman bears the disciplinary consequences of that. [178] Mr Acreman criticises the submissions of the Deputy Commissioner which he says misled the Tribunal. For example, he says that, in accepting the requirement for the use of a login and password to access the secure QPS computer,78 the Tribunal was misled by the Deputy Commissioner’s submissions because there was no evidence presented as to ‘what that computer access actually gives the user’ other than from the ESC manager. [179] Mr Acreman alleges that the Tribunal erred in drawing its own conclusions as to the nature of information that might be contained in general folders or the level of confidentiality that attaches to them, and whether reading information contained in general folders is outside the scope of an officer’s duties. Also, he submits that he was not questioned about his knowledge of general folders and how the Access to the Information Manual (IMM) applied to them. He poses a series of questions that he says should have been asked and submits that, in the absence of this information, the Tribunal had insufficient information to determine whether the documents in a general folder were securely held and restricted. Further, he submits that the policy requires that officers have only the system access privileges if required to perform their 78 Reasons, [44]. -- 45 of 55 -- 46 authorised duties and for the period they are required for the officer to perform the duties. Evidence of Mr Bhadran confirmed arrangements to grant and remove access to folders. Therefore, he submits that he had a reasonable expectation that he was authorised to access information in a general folder that was available to him. Indeed, as we observed earlier, in fact he was authorised to access ESC folders although that unknown to him, in circumstances when he should not have been. Further, here the folder was not identifiable as an ESC folder. [180] If it was necessary, we would accept that there was no evidence presented by the Deputy Commissioner about the security and confidentiality or otherwise of general folders. Indeed, in the oral hearing before us, the Deputy Commissioner conceded as much.79 Therefore, Mr Acreman’s submissions and evidence as to the entitlement of officers to access general files in the QPS system is the only evidence before the Tribunal.80 Although the charge does not include an element of ‘knowingly’ accessing the documents, it is implicit in the particulars that Mr Acreman abused his legitimate access to ESC records which could only be the case if he knew he had such access and knew the folder was an ESC folder. [181] If necessary, we would conclude that the evidence does not establish that Mr Acreman (knowingly) accessed confidentially held information. The documents were not identifiable as ESC documents, and were not secured from Mr Acreman in the QPS system. Had they been, Mr Acreman could not have stumbled upon them. Further, inconsistently with the particulars, Mr Acreman did not know he had access to ESC records, should not have had it, and did not require it in the course of his official duties or have any reason to believe that he had such access. [182] Mr Acreman’s response after locating the documents and diligence in seeking to report the information (out of concern for his own entitlement to confidentiality and fair process in the disciplinary process) makes that abundantly clear. [183] We would accept that the Tribunal erred in finding that the evidence supported her finding that the documents were confidentially held. Evidence does not support a finding that he should have resisted the temptation to look at the documents [184] Mr Acreman submits that the Investigation Report prepared, which was subsequently received by him after he’d seen the documents in question, omitted reference to the documents accessed. Thereby, he submits that his concerns were confirmed: the documents had been accidentally or deliberately omitted from the internal investigation. Further, the later investigation into the access to the L:Drive was silent as to whether the investigator of Matters 1 and 2 had seen or considered the documents, or why they were not in the brief of evidence given. [185] Mr Acreman challenges the basis upon which the Tribunal concludes that he should have resisted the temptation to look at the information in the file. He contends that as the file was apparently openly accessible by other members of the QPS and accessible by Mr Acreman, there was no legitimate basis put forward upon which it could be asserted that he should not have, as he believed other members could, read the content 79 Transcript, p I-14 and p I-15, lines 1 to 5. 80 See Affidavit of Mr Acreman sworn 22 February 2018, [71]. -- 46 of 55 -- 47 of the file. As discussed earlier, in any event, until he did so, he did not know what the documents were. [186] For the reasons explained earlier, if it was necessary, we would conclude that there was no reason for Mr Acreman to be aware that he should not read the documents. Did the Tribunal err in finding that Mr Acreman looked at the documents after his supervisor warned him not to do so? [187] Mr Acreman submits that the evidence is that he looked at the documents only once and prior to being able to report the incident to his supervisor, Acting Superintendent S. He submits that there is no evidence that he accessed the documents after reporting to Acting Superintendent S. Therefore, Mr Acreman submits that the Tribunal incorrectly found that he looked at the documents after he was warned by Acting Superintendent S.81 [188] The finding in question was made in determining sanction, not in substantiating Matter 3, which based on our conclusions we do not need to consider in any detail. That said, if it was necessary for us to do so, we would accept that the Tribunal erred in finding that he looked at the documents after reporting the events to Acting Superintendent S. There is no evidence to that effect. [189] The Tribunal erred in finding otherwise. Did the Tribunal impermissibly reverse the onus of proof by rejecting his experiences at the CCC (because he failed to provide corroborating evidence of his experiences at the CCC) that necessitated steps to secure the evidence? Did the Tribunal err in failing to give due consideration to the evidence supporting a need for Mr Acreman to secure the documents? [190] Mr Acreman contends that the Deputy Commissioner had submitted to the Tribunal that it was unfair for it to accept Mr Acreman’s evidence about his experiences at the CCC because he could neither confirm nor refute them. He argues that they were rejected because they were uncorroborated.82 However, Mr Acreman argues that the Deputy Commissioner had every opportunity to investigate them because he had set out the claims numerous times in the material he relied upon in the proceeding. Further, if he set out untrue allegations, he knew that the CCC would not hesitate to prosecute him. [191] In particular, Mr Acreman contends that despite his disclosure of and admissions as to the events that are the subject of the disciplinary charge as discussed earlier, he knew of issues in other disciplinary investigations because of his role at the CCC, which engendered his concern that the documents in the folder he’d located accidentally in the L:Drive may not be made available to him in the disciplinary proceeding to his detriment. Further, he submits that the Deputy Commissioner did not produce evidence to refute his evidence about the issues he deposed to, and therefore his evidence about this should have been accepted by the Tribunal. 81 See Second Reasons, [50]. 82 Reasons, [53]. -- 47 of 55 -- 48 [192] He submits that the onus was on the Deputy Commissioner to establish the charge. To do so, it had an obligation to rigorously investigate. In any event, he submits that the omission of the documents from the Investigation Report and brief of evidence were sufficient for the Tribunal to infer that the allegations he made were correct and supported by the omission. [193] He further alleges error by the Tribunal relating to his belief that he needed to take steps to secure the documents by using the external email system. In essence, his evidence is that he knew from his experience that the QPS system did not track access to documents and attachments to emails in the L:Drive (unlike QRIME which logs every access by an officer) even if emailed to someone through the internal system. However, he knew it did register documents emailed to an external email address. In case the documents were being deliberately withheld from the disciplinary process, he considered that the only way in which he could create a permanent record to prove the documents existed was to email them to himself at an external email address. He says that he emailed them to secure the evidence, which could otherwise be deleted without any record that it had existed. He did not read the documents once emailed to his external email account. He alleges error by the Tribunal in failing to accept his evidence about these matters in the absence of evidence from the Deputy Commissioner to refute it. [194] Mr Acreman contends that the learned Member reversed the onus of proof when she considered his assertion. It was because of his experience at the CCC that led him to take the steps he did; firstly, by viewing the folder, and secondly by emailing the content to his private email address. By making the finding that there was no corroborating evidence to support Mr Acreman’s contention, he alleges the Tribunal made an error of law because the evidentiary onus is on the Deputy Commissioner. [195] When considering the whole of the events, the investigation and his forthright behaviour and self-report about the events, his open answers to questions put to him, the admissions made about his conduct with respect to the discovery of the document on the L:Drive, and that the documents or their contents were not disclosed in relation to Matter 1, there is no apparent reason not to accept Mr Acreman’s evidence as to these matters. Also, it is clear that he was constrained in that he could not produce documents belonging to the CCC and relevant to other officer’s disciplinary investigations to corroborate his assertions. [196] If it was necessary to do so, we would accept that the Tribunal erred in rejecting Mr Acreman’s evidence in the absence of corroboration, when it was the Deputy Commissioner who was uniquely placed to either admit or disprove the allegations, and which we accept Mr Acreman would have been ill-advised to make if untrue given the likelihood of a CCC-initiated prosecution against him. Putting aside the PID Act, it is also clear from his actions that Mr Acreman was motivated to report what he considered maladministration within the QPS system in respect of the reasonable expectation of his confidentiality and fair process in disciplinary investigations. Did the Tribunal err in finding that the documents were at all times secure? [197] Mr Acreman alleges that the Tribunal erred in finding the information was at all times confidential and secure, referring to the Tribunal’s finding as follows: -- 48 of 55 -- 49 …..I accept the observations made by the respondent decision-maker that the QPS must ensure that it is able to safely manage the access of information particularly in relation to disciplinary matters.83 [198] Mr Acreman says that it was not secure because he had access to the documents in the folder when he should not have, alleging that QPS ESC failed in its responsibility to properly secure information under its control; in other words, maladministration. Unlike accessing QPRIME to search for information about a particular person, Mr Acreman’s access to the documents occurred inadvertently. He was looking in general folders for information about his posting. In opening the file, he had no reason to consider he was accessing documents he was not entitled to view. [199] The Tribunal accepted that Mr Acreman was unaware that he had been given access to ESC records generally, and thereby the particular documents. The evidence is that Mr Acreman had access to the relevant ESC records because of the position he had held at the CCC and in respect of which his duties entitled him to access.84 In this regard, Mr Acreman’s evidence was that he had not been made aware that he had ESC file access while at the CCC, and had therefore never accessed it in performing his duties while there.85 He says that his colleagues at CCC similarly were unaware and had not used it. Of course, at the time Mr Acreman accessed the documents concerned, he had not been in the role at the CCC for some months and more specifically since receiving the letter of 10 November 2015 terminating his position. Even had he been aware that he had access while at the CCC, he had no reason to believe he had access to ESC files after the termination of his secondment to the CCC. Had the documents been held securely by the QPS, they would not have been accessible by Mr Acreman. [200] Further, Mr Acreman argues the documents were not held securely because access to the folder type was unmonitored in that accessing them did not create a permanent trail (unlike QPRIME) through which security could be established. Had he not sent them to his external email, there would have been no record that he had accessed the documents even if emailed to his internal email address. This is a separate issue for document security. [201] As discussed, the Tribunal acknowledged Mr Acreman’s concerns in relation to the security of the information held by QPS. On a fair reading, it seems to have considered they were not relevant to whether the disciplinary charge was substantiated. We accept that the Tribunal was conducting a review of the disciplinary decision of the Deputy Commissioner, rather than a wide-ranging inquiry to determine, among other things, whether security arrangements for accessing QPS general files and the monitoring of access to it were adequate. However, the particulars of the disciplinary charge could not be satisfied since they relied in part upon Mr Acreman having access to the confidential file concerned to perform his role at the CCC, when in fact he was not in that role at the time the access occurred and should not have had access to the file. It was a failing in the QPS security arrangements that resulted in him in fact being authorised by QPS to access the documents concerned. This led him to inadvertently accessing what should have been a confidential file, which was not identifiable as an 83 Second Reasons, [32]. 84 Appeal Book, pp 292–296, Statement of A R Bhadran dated 11 February 2016. 85 Appeal Book, p 312, Affidavit of Mr Acreman sworn 22 February 2018, [70]-[72]. -- 49 of 55 -- 50 ESC file, about his own disciplinary investigation. Having done so, he immediately took steps to secure the documents and report the incident. [202] Although it is important that if the system fails, officers respect and adhere to the existing policies such as the IMM, there was no basis here for Mr Acreman, until he had accessed the folder and read the documents, to know that the system had failed. He then, appropriately it seems to us, took steps to report it. [203] If it was necessary to do so, we would find that the Tribunal erred in finding that the documents were at all times secure. In any event as discussed, they were not secure from Mr Acreman, he was, although he should not have been, authorised to access the folder. Did the Tribunal err in finding that the documents formed part of the QPS disciplinary investigation? Did the Tribunal err in not considering evidence supporting a finding that the documents were excluded from the disciplinary investigation? [204] Mr Acreman argues that, because there was nothing to indicate that the particular file was under the management of ESC, he did not immediately appreciate that the documents contained in it were part of the ESC investigation. On this point, he submits that his evidence should be accepted as there is no evidence put forward by the Deputy Commissioner to contradict his evidence, noting that the Deputy Commissioner carries the onus of proof to substantiate the charge. [205] Further, as discussed above, Mr Acreman contends that despite his admissions as to the events that are the subject of the disciplinary charge, he knew of issues in other disciplinary investigations because of his role at the CCC, which engendered real concern for him that the documents about the complaint in the folder he’d accidentally located may not be made available in the disciplinary proceeding. Mr Acreman submits that the Deputy Commissioner could, if it was so, have provided evidence to the effect that the material was part of the disciplinary investigation against him, but did not. [206] Again, the review was about the disciplinary decision against Mr Acreman in respect of Matters 2 and 3. The information in the subject documents, although only pertaining to Matter 1 which the Deputy Commissioner had found unsubstantiated, and the fact that they had not been disclosed or the allegations made by the complainant not put to him, raise questions about the integrity of the investigation. As discussed earlier, the Deputy Commissioner’s reasons for decision speak of inconsistences in the evidence, but without identifying them in detail. We note that Mr Acreman’s submissions to the Deputy Commissioner extensively detail the inconsistencies in the versions given by the complainant and his partner from time to time, including in the subject documents.86 In this regard, we observe that the documents were ultimately provided only in respect of Matter 3. [207] The documents in the folder in the L:Drive were relevant to the complaint made that resulted in the disciplinary charges in Matter 1. There is no doubt that they were 86 Appeal Book, pp 147–218. -- 50 of 55 -- 51 relevant to the investigation that followed the incident between Mr Acreman and the complainant. [208] As Mr Acreman contends, the allegations are not referred to in the Investigation Report about the events resulting in the disciplinary charges in Matters 1 and 2. They ought to have been considered in that investigation and formed part of the Brief of Evidence provided to Mr Acreman when the charges were brought against him. [209] Mr Acreman further says that there is an overriding onus on the QPS to ensure that disciplinary proceedings are fairly conducted in order to maintain public confidence in the QPS disciplinary process and QPS in general. He asserts that, consistent with his oath of service and QPS values, as a Commissioned Officer he had an overriding obligation to ‘uphold those principles’ and to promptly report any deviation. He contends that the Tribunal, in finding that he dealt with the documents for a private purpose, overlooked his obligations to do so (in securing the evidence, reporting the issue to his supervisor, and ensuring the documents were brought into the disciplinary process) thereby ensuring accountability of the QPS in the disciplinary proceedings. We consider the contention has merit. [210] This is because the tribunal review process is by way of hearing on the merits in each case, with the purpose of producing the correct and preferable decision. Accordingly, any breach of natural justice by a decision-maker is able to be overcome in the review proceeding. [211] We observe that, as inadequate and inappropriate as the file security arrangements were, Mr Acreman, quite properly, acknowledged that once he read them he knew the documents were documents that should be secure and confidential and unavailable for him to access. [212] That said, he recognised that as a matter of fair process the documents should have been part of the disciplinary investigation and that the documents had been withheld from it, whether deliberately or inadvertently. It is apparent that specific and inconsistent allegations made by the complainant were not put to Mr Acreman in the interview with Detective Inspector M. The Deputy Commissioner concedes that, if not for Matter 3, the documents would never have been disclosed. Accordingly, the Tribunal erred in finding the documents were part of the investigation; the evidence does not support such a finding. Instead, it supports a finding that the documents had been, for reasons unknown but hopefully mere inadvertence, excluded from the investigation, notwithstanding that they should have formed part of it. Accordingly, if it was necessary, we would find that the Tribunal erred. We make the observation that if relevant evidence was being withheld in disciplinary, and thereby by extrapolation, potentially other investigations by QPS officers, that would be a matter of significant public concern that could serve to undermine public confidence in the QPS generally. That said, Mr Acreman suggests that there have been improvements since these events. Some practices at ESC have been changed and these events could not now occur. [213] It is not the Tribunal’s role to consider the effectiveness and adequacy of any such changes and whether others may be necessary or desirable. For that reason, we propose to require that a copy of these reasons for decision be provided to the Commissioner of Police and the Chair of the Crime and Corruption Commission with -- 51 of 55 -- 52 a recommendation that the Commissioner of Police consider the allegations made by Mr Acreman and take any action that may be considered necessary and appropriate in respect of any systemic shortcomings. In particular, in the management of information in the context of privacy and confidentiality of documents in disciplinary investigations; as well as any shortcomings in the disciplinary investigation process that may result in an unfair process by way of exclusion of relevant evidence. [214] We do not make this recommendation lightly. We are acutely conscious that we have before us a single instance of events that may reveal no more than one very unfortunate series of events, and it would be most regrettable if it compromised confidence in the existing system. We make the recommendation for purposes of the maintenance of confidence in the internal disciplinary system in QPS, acknowledging that on Mr Acreman’s evidence, at least some changes have already been made. It is our intention, not to undermine confidence in the disciplinary system nor the officers who are charged with administering it, but to promote ongoing appropriate scrutiny and continuous systemic improvement to assure QPS officers and the public generally of its efficacy and accountability. Did the Tribunal err in failing to consider the relevance of the documents to Matter 1 not being substantiated against Mr Acreman? [215] For the reasons explained in the previous paragraphs, if it was necessary for us to do so, we would find that the Tribunal erred. Did the Tribunal err in failing to give reasons for its finding that Mr Acreman did not make enquiries about the documents prior to securing them? [216] Mr Acreman submits that the Tribunal erred in stating that there was no evidence before it that Mr Acreman made any enquiries, before reading them and emailing them to himself.87 He says this was an error because the onus was on the Deputy Commissioner in the proceeding. [217] In context, the Tribunal’s discussion about enquiries went to whether Mr Acreman’s assertion that he had formed an honest belief that the documents were accessible by anyone in QPS or believed that confidentiality had been waived was reasonable. It concluded that it was not, for reasons including that he did not, in making the assertion, point to any enquiries that might have led him to form such a conclusion. [218] If it was necessary for us to do so, we would find that for the reasons explained that Mr Acreman did not and could not know what the documents were before reading them, so there was no reason to ‘make enquiries’. In any event, the Tribunal does not explain what enquiries it considered might have been made before reading or securing them, nor the reasons why such enquiries might have been relevant or appropriate. For the reasons already explained, to the extent that it is relevant, we would find the Tribunal erred in making the finding. Was Matter 3 substantiated in error by the Tribunal? [219] Having regard to our views about the evidence generally as discussed in relation to Matter 3 and the specific grounds of appeal, if it was necessary to do so, we would find the Matter 3(a) not substantiated, because Mr Acreman was authorised to access 87 Reasons, [53]. -- 52 of 55 -- 53 the documents and did so only accidentally being unaware he accessed an ESC file. In light of the way in which this happened, his accessing of the documents was not improper. There were significant submissions about Mr Acreman reading the documents in the folder, the disciplinary charge 3(a) does not, perhaps surprisingly, refer to reading them, other than in particular 5, which goes beyond the charge itself. [220] In respect of Matter 3(b), accepting that Mr Acreman sent emails to the private email address to create an audit trail and secure the evidence, with the intention of making a report or complaint to his supervisor about the events and the documents, irrespective whether he made a valid PID, we would find that he had an official purpose for doing so. Therefore, we would conclude that Matter 3(b) was not substantiated. [221] Therefore, as Matter 3 would not be substantiated, it would be unnecessary for us to decide whether the conduct is misconduct, or consider the final ground of appeal in relation to substantiation. Disposition: substantiation of Matter 3 [222] Therefore, whether as we have found because of the provisions of the PID Act, or if it was necessary to do so on the basis of Mr Acreman’s grounds of appeal as more generally framed, the Tribunal’s decision should be set aside. [223] We find that Matter 3 is not substantiated. We make orders accordingly. APL109-19 Appeal on sanction: Matter 3 [224] Given the conclusions we have reached about Matter 3, to the extent that it is necessary, leave to appeal the sanction imposed for Matter 3 should be granted, and the appeal allowed. The sanction imposed should be set aside. We make orders accordingly. [225] If we are wrong and Matter 3 should be substantiated, we make the following observations. In respect of sanction for Matter 3, Mr Acreman again raises many of the same grounds of appeal already discussed in relation to substantiation. They have been addressed by us. [226] In addition, he argues that the sanction imposed is manifestly excessive. In particular, he says it erred in finding that he placed his own interests above his duties as a senior police officer in accessing and emailing the documents to himself. [227] The circumstances of Matter 3 are in sharp contrast to the many instances previously considered by the Tribunal when police officers have clearly acted in a manner inconsistent with their duties and responsibilities as police officers, and in a manner that does not meet the standard expected of an officer. [228] Here, Mr Acreman acted in an open and transparent manner throughout the events. The evidence suggests that he is a committed officer who takes his responsibilities extremely seriously. He accidentally uncovered an apparent problem in the disciplinary investigation, apparently similar to issues he had found in an official capacity when on secondment at the CCC, although on this occasion it affected him personally and detrimentally. He found the problem not through deliberate or underhanded means, but inadvertently. As we would expect of an honest and diligent senior officer, he reported it promptly. -- 53 of 55 -- 54 [229] The fact that there have apparently been some systemic changes since appears to reinforce the validity of the issues of fair process raised. Whereas the importance of maintaining discipline within the chain of command in the police service cannot be overstated, we consider it both puzzling and unfortunate that actions taken to report evident serious issues resulted in the bringing of the (poorly drafted having regard to our earlier observations) disciplinary charge against Mr Acreman. The commonly used adage of ‘Don’t shoot the messenger’ seems apt here. Apart from these disciplinary matters, Mr Acreman has a very lengthy and meritorious service history. There have been lengthy delays in finalising the disciplinary investigation and proceedings. Mr Acreman has already performed the educational aspects of the Tribunal’s sanction. If it was necessary for us to do so, we would set aside the Tribunal’s decision and impose a reduction in rank for 3 months for the period from 14 December 2017 from Inspector 5.6 to Senior Sergeant 4.1, and at the end of the period return to the rank of Inspector 5.6. Recommendations pursuant to s 24(3) of the QCAT Act to the Commissioner of Police [230] For the reasons explained, the management of the information contained in the folder in respect of which Matter 3 arises has led to concerns about the adequacy of the following: (a) the directions, manuals, practices and procedures for ensuring that all relevant information is considered and appropriately included in, acted upon, and/or disclosed in disciplinary investigations and related disciplinary action to ensure procedural fairness is observed; (b) the directions, manuals, practices and procedures (including for authorisation and cessation of authorisation of officers access to ESC files) for security and proper management of information held in databases about disciplinary investigations; and (c) training of police officers to facilitate recognition and appropriate dealing with public interest disclosures made under the Public Interest Disclosure Act 2010 (Qld). [231] We consider it appropriate to make recommendations to the effect that the Commissioner of Police consider their adequacy and take such steps as may be necessary to ensure adequacy. [232] Deputy Commissioner Pointing is also entitled to a copy of the recommendations. Although as a respondent to the proceeding he will receive the reasons for our decision, for completeness, we also direct that he receive a copy pursuant to s 24(4) of the QCAT Act. [233] Further, we direct in our discretion that the Chair of the CCC be given a copy in light of the CCC’s oversight role in respect of police misconduct. We make orders accordingly. Non-publication order [234] Deciding the appeal proceeding has necessitated that we give our consideration of whether the information Mr Acreman had and/or disclosure made by Mr Acreman -- 54 of 55 -- 55 involved information about whether the conduct of some police officers (who are not parties to the proceedings, who face no disciplinary or other charges in respect of their actions, and who are not represented before us) may constitute corrupt conduct or maladministration. In the circumstances, we find that it is necessary in the interests of justice to make an order to the effect that publication of the names of those officers is prohibited, other than in de-identified format. [235] Further, it is in the interests of justice that publication of the names of the complainant and his partner be prohibited, except in a de-identified format. Members of the public may otherwise be reluctant to make reports of alleged police misconduct if they may be readily identified. In case there may be other information contained in or referred to these reasons for decision in respect of which a party may wish to seek a non- publication order. For this reason, we do not propose to publish these reasons for decision, other than to the parties and the other persons and entities named in our decision for 28 days from the date of the decision. This will allow time for any party wishing to do so to make an application as may be considered appropriate for a variation to the non-publication orders we have made. [236] We make orders accordingly. -- 55 of 55 --