Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 63

CITATION: Acreman v Deputy Commissioner Brett Pointing [2018] QCAT 63 PARTIES: Geoffrey Owen Acreman (Applicant) v Deputy Commissioner Brett Pointing (Respondent) APPLICATION NUMBER: OCR294-17 MATTER TYPE: General administrative review matters HEARING DATE: 27 February 2018 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 9 March 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a stay is refused. CATCHWORDS: POLICE – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – STAY OF PROCEEDINGS – OTHER MATTERS – where police officer reprimanded and demoted from Inspector to Senior Sergeant for accessing confidential information without an official purpose – where information related to person who made complaint for which police officer was being investigated ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for stay of operation of decision – whether stay desirable – where applicant may have arguable case on review – whether balance of convenience favours stay – where far greater significance is public aspect of staying orders in disciplinary proceedings – where alleged misconduct serious – where prejudice to public substantial – where prejudice to public not mitigated – where individual circumstances do not outweigh need to preserve public confidence in integrity of Queensland Police Service and its disciplinary -- 1 of 7 -- 2 process – where balance of convenience favours refusal of stay Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 22 Aldrich v Boulton & Anor [2000] QCA 501 Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595 Bui v Queensland Law Society Incorporated [2017] QCAT 441 Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 King v Queensland Law Society Incorporated [2012] QCAT 489 Legal Services Commissioner v Baker (No. 1) [2005] QCA 482 NSW Bar Association v Stevens [2003] NSWCA 95 Robb v Law Society of ACT, unreported, Federal Court, No. ACT G34 of 1996, 21 June 1996 APPEARANCES: APPLICANT: Mr Geoffrey Acreman appeared in person RESPONDENT: Mr Craig Capper, Senior Legal Officer, QPS Legal Unit, appeared for Deputy Commissioner Brett Pointing REASONS FOR DECISION What is this Application about? [1] Deputy Commissioner of Police Brett Pointing reprimanded Geoffrey Acreman and demoted him from Inspector pay point 5.6 to Senior Sergeant pay-point 4.1, after finding he had engaged in two counts of misconduct by accessing official and confidential information without an official purpose. [2] The information related to a person who had made a complaint for which Mr Acreman was being investigated. [3] Mr Acreman wants the Tribunal to stay the Deputy Commissioner’s decision pending the outcome of his application for review of the decision. -- 2 of 7 -- 3 Is a stay ‘desirable’? [4] The Tribunal may grant a stay if desirable, having regard to Mr Acreman’s interests, the Deputy Commissioner’s submissions and the public interest.1 In considering whether a stay is ‘desirable’, the Tribunal must consider whether Mr Burch has an arguable case on review and whether the balance of convenience favours a stay.2 Does Mr Acreman have an arguable case on review? [5] Mr Acreman submitted that he had an arguable case for both the findings of misconduct and sanction. [6] Mr Acreman submitted that he had not engaged in misconduct at all because all he did was identify a failure by Ethical Standards in document security, by reporting that he could view certain documents. He submitted that the findings of misconduct are unsubstantiated because: a) The Deputy Commissioner misconstrued the evidence in finding that it should have been clear to Mr Acreman that the files were secure; b) Mr Acreman emailed the files to himself to preserve the files, as he was concerned they would not be provided to the investigation; c) Mr Acreman did not improperly use the files or access them to undermine the investigation; and d) The Deputy Commissioner should have found his initial access of the files was accidental, and his reason for emailing them to preserve them was justified. [7] Mr Acreman submitted that the Deputy Commissioner should have found the access to the documents was accidental and that the emailing of the documents did not ‘further aggravate’ the matter because it was simply to preserve the evidence. He said he did not obtain any advantage by viewing the files as the QPS had an obligation to provide the files in any event, as part of the brief of evidence. [8] Mr Acreman also submitted that the sanction was not the ‘correct and preferable’ decision. Specifically, Mr Acreman submitted that the Deputy Commissioner misconstrued the evidence when he reasoned: The protection and confidentiality of disciplinary material is the cornerstone of the QPS discipline process and is to be guarded especially from those whose conduct is in question until they are entitled to the material to prevent compromise of the process. The material is provided for the purpose of transparency and in accordance with the principles of procedural fairness and natural justice which ordinarily only occurs during a 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(4). 2 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [17]-[23]. -- 3 of 7 -- 4 disciplinary hearing. Unfortunately, in this instance you had access to privileged disciplinary material knowing it related to a complaint against you. I consider it highly inappropriate that you read the contents of the information knowing that it related to a complaint against you which was further aggravated by the fact you then sent the information to your personal email account. I note your acceptance in hindsight there were better options to secure the documents other than emailing them to your personal email account…3 [9] Mr Acreman added that the sanction was excessive and not consistent with a previous similar decision,4 where the officer was effectively sanctioned to the equivalent of two pay-point reductions. [10] It is not the role of the Tribunal in an application for a stay to make a detailed assessment of the prospects of success.5 However, the Tribunal should at least discern whether Mr Acreman has an arguable case – usually done by Mr Acreman identifying points showing some error.6 [11] Without making any conclusive findings on these issues, I would make some preliminary points: a) In a review proceeding, the Tribunal considers the matter afresh7 – it is not necessary for Mr Acreman to show any error by the Deputy Commissioner; b) Despite this, it is appropriate to give considerable weight to the view of the original decision-maker ‘who might be thought to have particular expertise in the managerial requirements of the police’, particularly when the evidence is essentially the same;8 c) Mr Acreman disputes the finding that it was clear that he knew the files were confidential, and raises a defence that his accessing the files was either accidental or justified; and d) Sanction is a matter of discretion. Mr Acreman has cited a previous Tribunal decision9 to support a reduction in his sanction. While that decision may have points of difference with Mr Acreman’s circumstances (for example, that decision involved a junior officer while Mr Acreman held the rank of Detective Inspector with the Crime and Corruption Commission and had some 35 years of 3 Decision On Sanction For Detective Inspector Geoffrey Acreman, Part C, pp 3-4. 4 Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96. 5 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [15]. 6 Ibid, [15], [16]. 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 8 Aldrich v Boulton & Anor [2000] QCA 501, [43] (Thomas J, with whom Pincus and Muir JJ agreed). 9 Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96. -- 4 of 7 -- 5 experience, and 11 years’ experience as a Commissioned Officer), it nevertheless provides some support for an arguable case to reduce sanction. [12] Certainly, it would seem the parties are in dispute on whether the facts amount to misconduct and the appropriateness of the sanction. To this extent and for the purposes of the stay application, I am satisfied that Mr Acreman may have an arguable case on review. Does the balance of convenience favour a stay? [13] Although Mr Acreman may have an arguable case on review, this is not a sufficiently cogent reason to grant a stay.10 There is a long line of authority11 – recently sustained by the President of this Tribunal12 – that of far greater significance is the public aspect of staying orders in police disciplinary proceedings: This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out from the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public “are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only”. The example given by His Honour was of the deregistration of a professional lawyer, but his observation was general in relation to the disciplinary process under laws designed to protect the public.13 [14] This applies to disciplinary proceedings involving the maintenance of public confidence in the police service as a basic unit in the maintenance of law and order.14 The question of whether to grant a stay is not to be approached as it is in cases of litigation between private citizens, which lack the element of public interest.15 [15] Factors that are particularly apposite to disciplinary proceedings of this nature include: the seriousness of the misconduct; the likely prejudice to public confidence in the integrity of the disciplinary process and the reputation of the police service if a stay is granted; and the means available to mitigate the prejudice.16 10 Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [30]. 11 Aldrich v Boulton & Anor [2000] QCA 501; Legal Services Commissioner v Baker (No. 1) [2005] QCA 482; Deputy Commissioner Stewart v Kennedy [2011] QCATA 254; Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595; King v Queensland Law Society Incorporated [2012] QCAT 489. 12 Bui v Queensland Law Society Incorporated [2017] QCAT 441, [9], (Daubney J). 13 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [29]. 14 Ibid, [31]. 15 Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [36]. 16 Ibid, [31], citing Robb v Law Society of ACT, unreported, Finn J, Federal Court, No. ACT G34 of 1996, 21 June 1996. -- 5 of 7 -- 6 [16] The alleged misconduct here is serious: it involves allegations of improper use of confidential information and dishonesty, and a lack of regard for due process incompatible with the trust reposed by the community in a high-ranking officer of its police service. It should be emphasised that Mr Acreman strongly disputes the allegations and I make no findings about them. However, it suffices for the purposes of this stay application that the allegations are serious. [17] Because the allegations involve misuse of authority and access to sensitive information by a commissioned police officer, the prejudice to the public is substantial. The Queensland Police Service is dependent on the confidence and trust of the public it serves. That confidence and trust is undermined if a high-ranking officer, whose integrity is the subject of serious challenge, is able to successfully call upon the Tribunal to exercise a discretion in his favour permitting him to continue to serve at the same rank and on the same pay-point, pending his review application.17 This applies a fortiori where findings of misconduct and a determination on rank and pay-point have already been made following a hearing.18 [18] Certainly, the public is financially protected by Mr Acreman agreeing to and being able to repay any overpayments if he succeeds in his review. However, the prejudice to the public goes beyond merely altering the financial positions of the parties, and extends to public confidence in the integrity of the Queensland Police Service as a whole. [19] Mr Acreman submitted that this prejudice to the public is mitigated by the fact that he is still considered to be a fit and proper person to remain a police officer. He submitted that by keeping him as a sworn police officer, the Deputy Commissioner has accepted that he does not pose any threat to the community in maintaining his role. [20] However, the effect of granting the stay would not merely be to allow Mr Acreman to continue his role as a sworn police officer. It would allow him to continue his previous high rank of Inspector at the same pay-point – with the same high level of authority, responsibility and privilege. This would not promote public confidence in the integrity of the disciplinary process that found him unfit to practise, or the reputation of the Queensland Police Service as a whole.19 [21] For the purposes of these stay proceedings, the Tribunal accepts that Mr Acreman could suffer financial loss of up to some $600,000.00 over three years in loss of salary, superannuation contributions and professional development allowance and possible career opportunities in not granting the stay. However, this can be rectified if Mr Acreman succeeds in his review by the Queensland Police Service, reinstating these entitlements. 17 NSW Bar Association v Stevens [2003] NSWCA 95, [150]-[151]. 18 Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [24]. 19 Ibid, [31]. -- 6 of 7 -- 7 [22] Moreover, the personal and financial impact on Mr Acreman does not outweigh the public interest factors showing that he does not have a cogent reason for a stay.20 Mr Acreman’s position is similar to other persons faced with adverse disciplinary findings21 and does not outweigh the ‘very distinct prejudice to the public interest which would be sustained if the stay was granted’.22 [23] The public expectation is that a police officer will serve the sanction imposed by internal police disciplinary proceedings unless and until that sanction is set aside. This is because the protection of the public, the maintenance of public confidence in the Queensland Police Service and the maintenance of integrity in the performance of police duties are the primary purpose of police disciplinary proceedings.23 [24] On this occasion, Mr Acreman’s circumstances do not outweigh the need to preserve public confidence in the integrity of the Queensland Police Service and its disciplinary process. This means that the balance of convenience favours a refusal of the stay. What is the appropriate Order? [25] Cogent reasons are needed before staying an order following a regular investigation and determination.24 Merely showing an inability to continue in a profession until a review is determined has been held not to be sufficient.25 Similar reasoning applies where the consequences for Mr Acreman are arguably less serious: he can continue to serve as a police officer, albeit at a lower rank and pay-point. [26] Mr Acreman has not shown sufficiently cogent reasons on this occasion. [27] The appropriate Order is that the application for a stay is refused. 20 Ibid, [32]. 21 Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [28]; Bui v Queensland Law Society Incorporated [2017] QCAT 441, [24]-[25] (Daubney J). 22 Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [21]. 23 Aldrich v Boulton & Anor [2000] QCA 501, [42]. 24 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [35]. Bui v Queensland Law Society Incorporated [2017] QCAT 441, [9] (Daubney J), citing with approval King v Queensland Law Society Incorporated [2012] QCAT 489, [14] (Wilson J). -- 7 of 7 --